By Reeves & Associates
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. Ultimately, a sense of relief arrives with the receipt of an appointment notice to appear for an interview with Citizenship and Immigration Services. Finally, the light at the end of the tunnel is visible.
However, for some, the light at the end of the tunnel quickly fades to black when they are advised at the conclusion of their interview that they will not receive a decision on their case that day. Once again they must wait. For some, this additional wait can be only days or weeks. For others, it can be months or even years. Aside from the additional stress and frustration which naturally result, there are other consequences which follow such a delay. For some, the delay means that they will have to wait even longer to petition family members to immigrate to the United States.
For others, it means an additional wait until they can travel to visit relatives and friends abroad. And for those who ultimately wish to become citizens of the United States, the delay in immigrating results in a corresponding delay in acquiring eligibility to apply for naturalization. While there are a variety of reasons why a case might be delayed after an interview, there is very little which an applicant can do on his or her own once the interview is completed.
Typically, the only options available to an applicant whose case has been delayed is to call Citizenship and Immigration Service’s toll-free information number to request information about the status of a case, or to appear personally for an INFOPASS appointment with an information officer at a regional office. While such inquiries sometimes achieve the desired effect, in many instances such inquiries simply conclude with a response that the case “is under further review,” or words to that effect. However, an applicant should not remain endlessly adrift in a sea of uncertainty.
There is action, with the assistance of an experienced and knowledgeable immigration attorney, which can be taken to compel Citizenship and Immigration Services to render a decision. Congress has recognized the need for a law to protect individuals against improper actions by administrative agencies. The Administrative Procedure Act was designed as a “bill of rights” for individuals aggrieved by agency action. It permits a lawsuit in United States District Court to compel agency action unlawfully withheld or unreasonably delayed.
Utilizing the Administrative Procedure Act, an applicant whose application has been pending without a decision for a prolonged period of time can file a lawsuit against United States Citizenship and Immigration Services to compel the unlawfully withheld and/or unreasonably delayed action of rendering a decision on an application. This is a very powerful tool, however it is not the only one available to an aggrieved applicant.
An applicant can also seek to compel United States Citizenship and Immigration Services to act through a lawsuit for a Writ of Mandamus. Like a lawsuit under the Administrative Procedure Act, a Writ of Mandamus is filed in United States District Court and seeks to compel United States Citizenship and Immigration Services to issue a decision on an application. However, the legal standard is somewhat different than the one imposed under the Administrative Procedure Act.
A Writ of Mandamus requires an individual to establish a clear and certain claim, an administerial duty which is plainly prescribed, and that no other administrative remedy is available. An applicant’s case who has been unreasonably delayed has a clear and certain claim; and United States Citizenship and Immigration Services has an administrative duty to adjudicate applications within a reasonable period of time. Further, an applicant has no other administrative remedy to pursue when Citizenship and Immigration Services fails to act. Therefore, a Writ of Mandamus also serves as a very powerful tool to compel United States Citizenship and Immigration Services to render a decision.
Filing an action for relief under the Administrative Procedure Act or a complaint for a Writ of Mandamus are both very effective in bringing pressure to bear upon United States Citizenship and Immigration Services to act on an unreasonably delayed application. And such actions are not exclusively limited to applications for lawful permanent residence. Lawsuits can compel action for any petition or application unreasonably delayed by the government.
A lawsuit can even be filed to compel a decision on a pending application for citizenship (a topic which will be fully discussed in a future article). However, pursuing a lawsuit against the government is extremely complex, and requires the services of an experienced and knowledgeable immigration lawyer to achieve the desired result. An experienced and knowledgeable immigration lawyer will be able to review an individual’s case to determine what actions are appropriate, and to pursue such actions to insure that the government renders a decision as quickly as possible. The stress and frustration can end. The light at the end of the tunnel still exists.