15 Nov Ending the Long Wait: Suing the Government When It Fails to Timely Act
By Attorney Flomy J. Diza
One of the most difficult aspects of immigrating to the United States is the waiting process. This process can be stressful not only to the applicant, but also to the applicant’s family. This is especially true for family-based preference petitions involving siblings of U.S. citizens, where the waiting time is more than 20 years for Filipinos. There is also more potential stress when, after waiting more than two decades to immigrate, the applicant is told that their file can no longer be located. But a solution to this problem does exist!
Reeves Immigration Law Group recently assisted a client who we will refer to as “Andy” to protect his identity. Andy filed Immigrant Visa Petitions for his four siblings in 1984. The priority dates did not become current until 2007, at which time the U.S. Embassy in Manila only notified one of Andy’s siblings that he was able to proceed with his case. What about Andy’s other three siblings?
Andy and his three siblings wrote numerous letters to the U.S. Embassy in Manila. The Embassy simply said they could not help because they did not have the file. Andy personally followed-up with the National Visa Center, the U.S. Citizenship and Immigration Service (USCIS), and his local immigration office, but nobody was able to successfully help him. Andy was eventually informed by his local Congressman that his siblings’ files had been destroyed. He was advised by the USCIS that he should file new petitions for his siblings, along with a request to recapture the original priority date. These petitions were approved, but Andy was assigned a new priority date. This meant another 23 years of waiting.
Andy and his siblings then decided to retain Reeves Immigration Law Group. Attorney Flomy Javier Diza, one of the Firm’s partners, advised Andy to file a lawsuit in federal court. Atty. Diza explained that, when filing a Writ of Mandamus, an individual must establish a clear and certain claim, an administrative duty which is plainly prescribed, and establish that no other administrative remedy through governmental process is available. In most instances. this legal standard is met by showing an unreasonable delay by the USCIS. Essentially, when filing a Writ of Mandamus, you are attempting to compel the government to act when it has failed to do so in a reasonable period of time.
Atty. Diza filed the Writ of Mandamus with the U.S. District Court in the Northern District of California. He named the Secretary of Department of Homeland Security, the Secretary of Department of State, the Director of USCIS, and the U.S. Ambassador in Manila as defendants. Attorney Diza argued that Andy and his siblings patiently waited for more than 20 years for the priority date to become current, but that they never received a notice advising them that they were able to proceed with their case. Attorney Diza also stated that they never received a notice advising them that their case would be terminated either. Atty. Diza emphasized that Andy followed-up with the USCIS, the Embassy, and the National Visa Center multiple times, all without any success. Andy even reached out to his local Congressman for assistance. Attorney Diza stated that Andy had been attempting to resolve this matter for over eight years, and that it would be unjust if his siblings were forced to wait an additional 20+ years before they were able to immigrate to the U.S.
Attorney Diza asked the court to rule that the government’s actions were unlawful. Since the government had not properly notified Andy and his siblings of the possibility of termination, it was unlawful for them to terminate Andy’s siblings’ registration and to revoke the underlying petitions. Attorney Diza requested the court to force the USCIS to assign the current petitions a 1984 priority date, thus allowing Andy’s siblings and their spouses and children to immediately immigrate to the U.S.
Andy and his family were ultimately successful in their quest to recapture the original priority date. What a sense of relief, as they were finally able to see the light at the end of the tunnel. It was not long thereafter when they were finally reunited in the U.S.
Unreasonable delays by the U.S government happen. Some delay is a normal part of the process when requesting benefits from the government, but inordinate delays are not. An experienced and knowledgeable immigration attorney can help get your case “unstuck.”