Litigation

 

Suing the Government for Agency Delay Increasingly, immigration practitioners and foreign nationals seeking benefits from U.S. Citizenship and Immigration Services (USCIS) face long delays in application processing. In some instances these delays become unreasonable and can add up to years over the advised processing times quoted by USCIS. In the case of an unreasonable delay, it may ultimately be necessary to bring a civil action against government agencies. Before seeking redress by federal court, however, there are other means to seek redress: Use expedite procedures offered by USCIS

  • Contact a congressional liaison to inquire on the applicant’s behalf
  • Contact USCIS to check your case status

It is important that these steps are followed before bringing an action in federal court, as a plaintiff may be required to prove he or she has exhausted all administrative remedies before seeking redress from the courts. Documented proof that the above steps have been taken will serve as evidence that plaintiff has exhausted all administrative remedies and is thus eligible for relief from the court.

If administrative remedies prove inadequate or ineffective, it may be necessary to bring suit in federal court. To bring a suit in federal court, a plaintiff must file a complaint in the correct district. In the complaint, the plaintiff must outline:

  • Why the venue plaintiff has chosen is appropriate
  • Why the court they are addressing has jurisdiction.
  • Parties against whom the claim is brought
  • What relief the plaintiff is requesting from the court

Venue

Venue refers to the district in which the case is brought. Venue is always proper against government agencies or officials in the judicial district where plaintiff resides. However, the plaintiff’s district may not be convenient, or the district may have case law that is not advantageous to the plaintiff’s position. It may be necessary, then, to bring the suit in another district where the government defendants “reside.” Plausibly, the government defendants reside anywhere there is any district office. However, courts usually require that the district office engaged in substantial part of the activity complained of in the plaintiffÕs complaint.
Jurisdiction

Jurisdiction refers to the courtÕs authority to make a decision on a plaintiffÕs case. In immigration matters involving unreasonable delay, the source of jurisdiction differs depending on whether plaintiff filed an application for adjustment of status or for naturalization.

Adjustment of Status

In cases involving unreasonable delay in adjudicating an application for adjustment of status, jurisdiction is most commonly found in the Mandamus statute and the Administrative Procedure Act (APA).

Mandamus Act

The Mandamus Act is found in 28 USC ¤1361 and gives federal district courts the power to compel an agency to act where the agency has failed to perform its duty. ¤1361 states: ÒThe district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” To bring a successful mandamus claim, you must first determine if the delay is “unreasonable.” Plaintiffs can show unreasonableness by proving that they have exhausted all administrative remedies before suing. Evidence of failed attempts to resolve the delay administratively gives strength to the argument that delay is unreasonable and that judicial action is the last and only resort.

Administrative Procedure Act (APA)

The APA is found in 5 U.S.C. ¤706 and provides that courts have the authority to “compel agency action unlawfully withheld or unreasonably delayed.” However, the APA does not provide an independent ground of jurisdiction and can only be used in conjunction with another statute for jurisdictional purposes. This usually is easily done if used in conjunction with the federal question doctrine, which states, “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” For instance, if a plaintiffÕs application is waiting on a pending FBI name check, the applicant may assert jurisdiction based on several provisions of the INA and statutes requiring the FBI to report records to federal agencies.

In the context of APA cases, exhaustion of alternative remedies is required only where mandated by statute or regulation and where there is no provision for staying the administrative decision during a pending administrative appeal. When USCIS simply fails to act on a petition or application there is rarely any other regulatory or statutory remedy available, so in theory, little needs to be done before bringing an appeal to federal court under the APA. However, judges may look more favorably upon a plaintiffÕs case if the plaintiff still attempted to resolve the delay through USCIS before filing suit. Letters to the agency informing officials of a possible suit in federal court, or a letter to the U.S. Attorney’s office can serve this purpose.
Naturalization Applications

For unreasonable delays in adjudicating naturalization applications, jurisdiction can be found under the Mandamus Act and the APA, as with adjustment of status cases discussed above. In addition, 8 U.S.C. ¤1447(b) specifically states “If there is a failure to make a determination [on the naturalization application] before the end of the 120-day period after the date on which the examination is conducted…the applicant may apply to the United States district court for the district in which the applicants resides for a hearing on the matter.” While the relevant statutes provide a specific timeline for the agency to act, judges may nonetheless look to the reasonableness of the delay in fashioning a remedy. It is still important, then, to exhaust all administrative remedies before bringing an action in federal court.

There has been some disagreement among jurisdictions as to what the “examination” entails. Government defendants always assert that the “examination” includes not only the interview, but also the completion of the FBI name check. They argue then, that plaintiffs do not have standing to bring suits because 120 days have not passed from the completion of the examination since the examination has yet to conclude. A majority of courts, including one in the Southern District of Ohio, however, have ruled that the “examination” consists only of the interview. Therefore, most cases that have been pending for more than 120 days after the date of the applicant’s interview are reviewable by a federal district court.

Other problems arise if the unreasonable delay in a naturalization case arises before the interview is conducted. In these situations, the government tends to argue that they have discretion as to when to schedule an interview on a naturalization application, and thus APA arguments would be null in these situations. However, the naturalization statute appears to mandate a decision on an application, which would imply a timely scheduling of an interview and decision on the matter. In addition, regulations implementing the naturalization statute contain mandatory language indicating that the agency must act on an application. The regulations provide that a decision on the application must be made when it says at 8 CFR ¤335.3 “The applicant shall be notified that the application has been granted or denied.”
Parties to the Suit

It is usually better to err on the side of suing more officials, since defendants can always be dropped from the suit but it may be difficult to amend a complaint to join additional defendants. A petitioner should, then, name the following officials when filing a mandamus or APA action challenging immigration adjudication delays:

  • Secretary of Department of Homeland Security (DHS)
  • Director of USCIS
  • Director of the service center where the application or petition is located
  • District director of the local USCIS office with jurisdiction over the plaintiff.
  • Director of the FBI (if delay is a result of a pending FBI name check) Some may also name the U.S. attorney general, but it is not necessary because the Homeland Security Act of 2002 vests immigration as a function of DHS.

Relief Requested

Plaintiffs should ask for the following relief:

  • Compel USCIS to adjudicate the application within 60 days
  • Compel the FBI to issue the results of a criminal background and/or name check relating to plaintiff to USCIS and the court within 60 days
  • Award attorney’s fees to the plaintiff if he or she is the prevailing party

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