The public and attorneys alike have found that the Immigration Service often takes longer than it should to decide cases. For many years, these problems were solved by having an immigration attorney contact Immigration to alert them to the problem. If that did not work, then a letter to a Congressman or Senator would often bring results. The ultimate tool for dealing with Immigration delays is to file a lawsuit against the agency. This is called a “writ of mandamus”. This tool is coming into more frequent use as Immigration delays persist and grow worse.
A writ of mandamus is a form of lawsuit that is designed to compel a government agency to perform its duty. A writ of mandamus cannot be used to force Immigration to grant a benefit, it only forces the agency to make a decision. Therefore, a mandamus action can possibly result in the denial of a petition or application. The assistance of an experienced immigration attorney is needed in order to evaluate whether or not a mandamus action will be appropriate in a given case, and to craft the mandamus complaint itself.
The attorney will first research whether the processing of a particular case has gone beyond the time limits stated by the Immigration Service itself. If so, inquires should be made with Immigration. If no results come within a reasonable time, the next step is to contact a Congressman or Senator, or proceed directly to a mandamus lawsuit.
The suit will be filed in federal court. Usually, simply filing the lawsuit brings the case to the attention of the Immigration Service, and they will then take action on the case. If not, the federal court to make a decision on your lawsuit.
Recently, a federal court in San Francisco ordered the Immigration Service to make a decision on an application for permanent residency that had been pending since June of 1998. The applicant was a Palestinian refugee who had been brought to the U.S. by the U.S. government under a special program for “Persian Gulf Evacuees” in 1990, at the time of the first Gulf war. The man was then instructed to file for political asylum, which he did in 1990. After waiting more than six years for his asylum application to be processed, he was granted political asylum in 1997. A year later, the man filed an application for a green card (i.e., to adjust his status to permanent residency status). Then followed years of waiting.
The man made many inquiries that led nowhere. He was told each time that his application was “pending a security clearance from the FBI.” The man finally filed sued the Director of the FBI, the Attorney General of the United States, and several Immigration Service officials, in San Francisco federal court. The mandamus complaint asked the court to compel the government to immediately process the necessary background checks and make a decision on the man’s application for permanent residency. Eight months later, in October of 2006, the federal court ordered the government to do its duty “forthwith”.
Federal courts require the Immigration Service to explain why it has delayed approval of a case within sixty days of the complaint being filed, and often these cases are decided within 30-60 days. In the example above, the Immigration Service responded immediately to the court order and granted the man’s application for a green card.
If your case has been delayed for one year or more, you should consider filing a Writ of Mandamus complaint with the federal court. As a general rule, you do not have to appear personally in court when you file a writ of mandamus.
If you are applying for citizenship, you have an even stronger option than filing a writ of mandamus. You can file a “petition for declaratory judgment” (PDJ). Unlike a mandamus action, which calls for a decision (good or bad), a petition for declaratory judgment is a lawsuit that calls for flat-out approval of your citizenship application. File a mandamus action after a one or two-year delay in most cases; file for a PDJ after 120 days in citizenship cases.
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About
the author: Kathleen Lord-Black is a U.S. immigration lawyer. Her offices
are located in Vancouver, British Columbia. She has served as Immigration
Consultant for the San Francisco Public Defenders Office, 2005 Chair of the
Immigration Section of the Barristers Club of the Bar Association of San
Francisco, and former Congressional liaison for U.S. Representative Farr. Ms.
Lord-Black is an active member of the American Immigration Lawyers Association
and the American Civil Liberties Union. Her articles regularly appear in the
Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be
reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com
