Unreasonable Delays at INS and What Can be Done About It

The Immigration and Naturalization Service (“INS”) is responsible for processing various immigration applications. Under Federal law it is required to adjudicate these applications “within a reasonable time.” When INS fails to timely adjudicate an application the applicant may bring suit in the U.S. District Court, requesting the Court order the Immigration Service to adjudicate the application. Presently, at the Los Angeles District Office applicants are experiencing extremely protracted delays. These delays are caused by poor management, lack of organization, new laws imposed by the Republican Congress and a general apathy and an indifference towards the rights of aliens and immigrants. The most egregious delays are in the adjudication of the naturalization and adjustment status applications.

The Immigration Service’s failure to adjudicate these applications within a reasonable period of time often causes many hardships for the alien or immigrant and their families. The alien may be unable to secure employment, obtain different employment, travel freely, unite other family members, inability to pay lower tuition fees or may have a child “aged out” situation, that is the child becomes 21 years old and will not be eligible for a green card and may be banished from the U.S and their family. The Immigration Service’s delays in the naturalization cases causes loss of benefits, including health care to the aged immigrants, inability to vote, “age-out” problems and the inability to reunite with other family members.

What should an alien do when his or her application has been languishing for months or even years with the Immigration Service with no adjudication even in sight. Under the Federal Administrative Procedure Act federal agencies including the INS are required to adjudicate applications “within a reasonable time.” It is the job of an applicant’s attorney to make sure the INS follows the law. The INS is not above the law.

When INS is not adjudicating an application within a reasonable period of time, the attorney should follow up with the INS by making phone calls and requesting in writing for the status of the case and for an adjudication of the application. More often than not, the INS has been ignoring these requests from attorneys, aliens and immigrants. When these informal methods are unsuccessful, the attorney should, on the applicant’s behalf, file suit in the U.S. District Court requesting that the Court order the Immigration Service to adjudicate the application. This type of lawsuit is called a Writ of Mandamus which seeks to compel an officer or employee of the United States or 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.

This week our law offices filed several lawsuits under the mandamus statute seeking a Court order compelling the INS to adjudicate over 100 Adjustment of Status applications and over 100 naturalization applications. It is the current policy of my firm not to allow naturalization applications to languish more than nine months without a preliminary hearing or more than 12 months without a final hearing, that is swearing-in. Regarding the adjustment of status application for a green card, I will not allow these cases to wait more than 12 to 14 months. I sincerely believe that a naturalization or adjustment of status application should not take more than 30 to 60 days to adjudicate. It is patently absurd and a travesty of justice to allow applications to languish for the periods of time that the INS is now taking. Recently, I have been retained by large numbers of aliens who either had other representation or representing themselves and their cases have been languishing with the Immigration Service for more than two and in some cases, three years.

I believe that our clients should be treated as first class citizens and deserve the best representation possible. I will not allow my clients’ cases to languish at the INS or tell my clients go to the INS to ascertain the status of their own case. The client did not hire the attorney so that they could then stand in line and ask why his or her case has not been adjudicated in the last two years. When an attorney consistently files lawsuits in the U.S. District Court, the INS knows that this attorney means business and will fight for the applicant’s right to a timely adjudication of their application.