You filed your immigration case, you paid all the fees. If USCIS asked for it, you responded to their request for evidence (RFE). You got your interview.
That was four years ago.
Now, many frustrated phone calls and InfoPass appointments later, you continue to be told the same thing: security checks. Or perhaps it’s a different story every time: extended review, file is with another agency, name check, file is lost…
What are your options?
In some cases, it may be appropriate to file a lawsuit against the USCIS and other government agencies. There is a law known as the Administrative Procedures Act (5 U.S.C. §500 et seq, the “APA”). Among other things, it says that when an agency (such as USCIS) is given a task to do by Congress, it has to do it, and within a reasonable time. Now, what is considered a “reasonable time” is of course subject to interpretation. Every case is different, and only an experienced attorney has the professional judgment to say it one way or the other.
Assuming the delay is unreasonable, the APA does give you the right to file a lawsuit. Typically in these lawsuits, you sue the Secretary of the Department of Homeland Security, the USCIS Director, the district director of the field office your case is pending in, (sometimes) the director of the main USCIS Service Center, and quite possibly, the FBI (especially in security check delay situations.) The lawsuit itself is known as a writ of mandamus – a request to the Court to force (mandate) a government agency to do something. In this case, you are asking the Court to tell USCIS to make a decision.
You don’t have the right to ask for an approval of your application. You only have the right to ask for a decision. That decision may be good or bad. How can you tell? There is no way to know for sure, but an experienced attorney can certainly tell you whether it’s a good idea to file or not.
American courts don’t agree on whether they can even hear cases like this. By law, many decisions of USCIS cannot be reviewed by a court. We call this “judicial review” (or lack thereof!) In a typical writ of mandamus, however, you are asking the court not to review the decision itself, but the pace of the decision. In other words, you are saying, “Your Honor, I filed an application for my green card and CIS sat on it for 4 years. I know you can’t tell them to approve it, but you can tell them to make a decision, because they have a duty to do so within a reasonable time, and 4 years is unreasonable.”
Many courts agree that while they cannot tell USCIS to approve or deny an application, they can tell them to hurry up. However, some courts say that if they can’t say anything about the decision, it makes no sense that they could say anything about the pace of the decision either. These courts see the “pace” of the decision as part of the decision itself, and if it can’t review the decision, it can’t review the pace of the decision either.
Courts have gone all over the map on this one. Sometimes, even within the same courthouse, two different judges will reach two different conclusions on two writs of mandamus cases!
Successful writs of mandamus work in an interesting way. Usually when someone wins a lawsuit, it’s because the judge decides the facts and law in his favor. Writs of mandamus may achieve the intended result before the government even files an answer to your complaint. Many of our clients, for example, came to us after waiting 3, 4, 5 and up to 7 years for their green cards or citizenship. We file the writ of mandamus. The government attorney asks for a brief extension of time. We agree. The government attorney then tells us that USCIS is ready to approve the application. We dismiss (withdraw) the lawsuit. The government doesn’t get dragged into a costly litigation, our client has his green card, and everybody goes home happy.
But this is not always how it works. Sometimes the review of the file brought on by the lawsuit reveals a problem in the alien’s immigration history. If something like that is found, the client may actually wind up in removal proceedings, because USCIS will have found a way to not only deny the benefit he was applying for, but take away the status he already had!
In our experience in dealing with these lawsuits and the clients who bring them, we have heard all kinds of mandamus “folklore” ranging from “the government will retaliate against your family if you file,” to “all I have to do is file and I will get my green card within 30 days,” to “these lawsuits just don’t work.”
The truth is that filing a writ of mandamus is just another option available to you. It is a very complicated option, one that a competent attorney must analyze. Like any option, it has benefits, and it has risks. And these benefits and risks are different for each case.