WHEN TO GO TO FEDERAL COURT

By Robert L. Reeves & Nancy E. Miller

When an application is filed with a government agency, one would expect a timely decision and not just to be placed on hold indefinitely. This expectation is supported by U.S. Administrative Laws that require the agency to adjudicate applications or petitions within a reasonable period of time. Many people who have filed an application with United States Citizenship and Immigration Services (USCIS or INS, its predecessor) know the delays experienced may be well beyond what’s reasonable.  The remedy for unreasonable delays is to file a lawsuit in U.S. District Court to compel the government to do its job. 

This lawsuit is called a mandamus complaint.  It does not demand that the agency approve an application.  The complaint seeks an order from a federal court judge compelling the government to adjudicate the cases (a decision). This decision will allow the immigrant’s case to move forward.  If USCIS grants the application, the non-citizen will be able to move up to lawful permanent residence or citizenship (depending on what benefit was sought).  Even if USCIS issues a denial, the applicant can appeal to a higher court.  However, that appeal can only be filed after the USCIS adjudicates the case.  
 
In previous years, upon the filing of a mandamus, the INS or USCIS would pull the alien’s file and adjudicate the application within a matter of weeks.  They have ceased doing that.  Their practice now is that they will fight the case in court claiming the delays are not their fault.  They may claim that the delays are caused by the FBI’s background checks to ensure that they are not granting status or citizenship to a terrorist, or they may claim the delay is reasonable no matter how long it takes.

One solution to this dilemma is to include the FBI as a defendant in the lawsuit.  The FBI also has a duty to complete its task within a reasonable period of time. Sometimes the FBI claims that it is reasonable for the background checks to take years to complete, but we have successfully argued that if  the applicant were really a terrorist or pose other dangers to society, it would be unreasonable to wait years to find that out while that person is living in the United States. FBI checks should be completed in an expeditious manner if the government is truly concerned that the applicant might be a terrorist.  The reality is that the FBI and the USCIS have put these clearances on a low priority simply because they know that the majority of the people applying for benefits are law-abiding people who are no threat to society.  The attitude is that these people have no choice so they can just wait.

Many Federal courts have held it is unreasonable for a person  to have to wait years for a police clearance. Federal Judges have taken the position that the check or cases should be done or adjudicated in an expeditious manner for both the applicant’s sake and the safety of society.

Sometimes the problem is not the delay caused by government inaction, but rather refusal by government entities to follow the laws as enacted by Congress.  When that occurs, it may be necessary to file a lawsuit in U.S. District Court for declaratory action.  In that case, the plaintiff asks the court to instruct the government as to the correct interpretation of the law. 

A federal action (a petition for review or an appeal) against USCIS can also be filed  in the United States Court of Appeals.  This type of case is filed when the party believes that either the administrative agency or the District Court has made an incorrect decision. 

One should take great care in choosing a lawyer to represent them in federal court.   The lawyer should be experienced and knowledgeable in both immigration law and federal laws and procedures.  For more information, be sure to watch Episode 9 of “The Immigration Experts”. Episodes are available for viewing on KSCI-18 Television in Los Angeles, San Diego and San Bernardino and KTSF-26 in the San Francisco Bay Area on Sundays at 4:30 p.m. Episodes are also available for viewing on www.immigrationexperts.tv.