Fighting for Your Rights in the Greater Cincinnati Region
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, such as:
Using expedite procedures offered by USCIS (e.g. premium processing)
Contacting a congressional liaison to inquire on the applicant’s behalf
Contacting USCIS to check case status
It is important to follow these steps before bringing an action in federal court, as a plaintiff may be required to prove that they exhausted all administrative remedies before seeking redress from the courts. Documented proof that the above steps have been taken will serve as evidence that the plaintiff has exhausted all administrative remedies and, therefore, is eligible for relief from the 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 the 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
Our team at The Fleischer Law Firm LLC can guide you through this process and advocate for your rights. Our immigration litigation attorneys have decades of experience, and we look forward to putting this experience to work for you.
Understanding Your Legal Rights: A Free Consultation
At The Fleischer Law Firm LLC, we believe that knowledge is power. Understanding your legal rights is crucial, especially when facing complex legal challenges. That’s why we offer a complimentary consultation to discuss your case and explore your options. Whether you’re dealing with personal injury, family law, or criminal defense, our experienced attorneys are here to provide the guidance you need.
During your free consultation, you can expect:
Personalized Attention: Our attorneys will take the time to listen to your story and understand your unique circumstances.
Expert Legal Insights: Gain clarity on your legal situation and receive expert advice tailored to your needs.
Transparent Process: We will explain the legal process in simple terms, so you know what to expect moving forward.
No Obligation: There’s no pressure to hire us after the consultation. We want you to feel comfortable and informed before making any decisions.
Don’t navigate the complexities of the legal system alone. Contact The Fleischer Law Firm LLC today to schedule your free consultation and take the first step towards protecting your rights.
Choosing a 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 a district office. However, courts usually require the district office to have engaged in a substantial portion of the activity discussed in the plaintiff’s complaint.
Jurisdiction refers to the court’s authority to make a decision on a plaintiff’s case. In immigration matters involving unreasonable delay, the source of jurisdiction differs depending on whether the plaintiff filed an application for adjustment of status or for naturalization.
In cases involving adjustment of status, jurisdiction is most commonly found in the Mandamus statute and the Administrative Procedure Act (APA).The Mandamus Act gives federal district courts the power to compel an agency to act where the agency has failed to perform its duty. 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 the delay is unreasonable and that judicial action is the last and only resort.
In cases involving 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 gives applicants the right to apply for a hearing if the agency fails to make a determination within 120 days of the case examination. 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. According to the regulations, the applicant must be notified that their application has been granted or denied.
This is Dorcas from Ghana. We love to get photos and feedback from our clients! She is now a US citizen based on her hard work and good moral character.
"Today was awesome. I am finally a citizen thanks to you!"
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 they are the prevailing party
Regarding parties to the suit, it is usually better to err on the side of suing more officials rather than less. This is because defendants can always be dropped from the suit, whereas adding more defendants can be difficult.
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 this is not necessary because the Homeland Security Act of 2002 vests immigration as a function of DHS.
Call (513) 880-9969 or send us an online message to get started with our Cincinnati immigration lawyers today. We offer same-day services, payment plans, and complimentary consultations.
