06 Mar Forcing The INS To Do Its Job
The Immigration and Naturalization Service (INS) is responsible for processing many different types of applications. Under the law it is supposed to adjudicate these applications “within a reasonable time.” When it fails to follow this law, the applicant can ask a federal judge to force the INS to adjudicate the application.
Immigrants make many different types of applications to the INS. One common application is for adjustment of status. This is usually done to change an applicant’s immigration status, whether it be legal or illegal, to a lawful permanent resident, thereby entitled to a “green card.” The application is made on INS form I-485.
Another common type of application is one for naturalization, which means becoming a citizen. The application is made on INS form N-400.
A third type of application is a petition for alien relative. This allows an applicant to get an alien classified as the applicant’s relative so that the alien might qualify to come to the United States legally. The application is made on INS form I-130.
While these applications are pending before the INS the applicant often is in an uncertain situation. The applicant may be unable to legally work in this country, unable to become a citizen or unable to live with a family member. Waiting for the INS to adjudicate an application can be an anxious and uncomfortable experience.
Under the federal Administrative Procedure Act (5 U.S.C. § 555(b)), federal agencies, including the INS, are required to make decisions on applications “within a reasonable time.” It’s the job of an applicant’s attorney to make sure the INS follows this law.
When the attorney finds that the INS is not adjudicating an application “within a reasonable time,” the attorney should use telephone calls and letters to try to get the INS to adjudicate the application. Sometimes this will work and the application gets adjudicated, thus avoiding longer delays.
However, when more informal methods are unsuccessful, the attorney should be willing to file a lawsuit for the applicant against the INS to force it to adjudicate the application in a timely manner. Under a federal law (28 U.S.C. § 1361), sometimes called the mandamus law, an applicant can sue “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” This includes the duty under the Administrative Procedure Act that requires federal agencies to render decisions on applications “within a reasonable time.”
It is called the mandamus law because of the legal history surrounding the right to sue the government to force it to perform its legal duties. “Mandamus” is a Latin word meaning “we command” according to Black’s law dictionary. In early English law when the courts needed to direct a person to perform a legal duty the court issued a written document called a writ of mandamus to that person. This put the person under court order to perform their legal duty.
Recently my office filed a lawsuit in a Los Angeles federal court, under the mandamus law, against the INS to force the adjudication of I-485 applications submitted by 16 of my clients. These applicants have been waiting from 19 to 29 months for their applications to be adjudicated. Naturally, we tried to solve the problems of delay with telephone calls and letters, but that didn’t work. So, our lawsuit alleges that the INS has failed to adjudicate these applications “within a reasonable time” as required by law. (The lawsuit is called Morales v. I.N.S., No. 96-8738 JGD.)
This is the kind of representation that people deserve when the INS is not doing its job. Applicants must know that their attorney will do everything that legally can be done to ensure that the INS follows the law. When the attorney acts in this manner the INS learns that the attorney means business and will fight for the applicant’s right to a timely adjudication of the application.
If you believe your applications are not being processed by the INS in a timely manner you should ask your attorney about the status of your applications. You should refuse to be put on “hold” or settle for answers like “your case is still pending” if the applications were filed a year or more earlier. If all else fails, you may want to consider hiring a new lawyer who will force the INS to adjudicate your case.