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Compelling DHS Action on Long-Pending Adjustment and Naturalization Cases
Even before this summer’s deluge of petitions and despite massive fee increases, the U.S. Citizenship and Immigration Services (USCIS) has been incapable of processing tens of thousands of applications for permanent residence and citizenship within a reasonable period of time. For some applicants, many years go by without a word about the resolution of their case, despite diligent follow-up with USCIS. Major processing delays reportedly affect up to 300,000 cases. Although lengthy delays are most common in citizenship and adjustment of status applications, unreasonable delays also affect applications for employment authorization and travel permission, petitions for nonimmigrant status, and green card renewals. Besides an overloaded immigration system, what causes these delays, and more importantly, what can be done to compel DHS action?
Most USCIS processing delays result from so-called “background checks.” These checks, which are distinct from fingerprint checks for a criminal history, match up names and dates of births of applicants with Federal Bureau of Investigation (FBI) databases, which, in turn, link up with other governmental databases. Often the background check will reveal the existence of a government record or “hit,” even a benign hit, which must be investigated to determine if it presents information relevant to the adjudication of the application. Delays are sometimes caused for other reasons, including misplaced or simply neglected files. During this time, the USCIS informs the applicant that his or her case is pending background checks, or offers excuses, and advises that nothing can be done.
Something can, however, be done. Many applicants are turning to the federal courts to assert their right to a reasonable period of adjudication through a writ of mandamus, a type of lawsuit to compel government officials to act on their case. Many adjustment of status and naturalization applicants have succeeded in forcing the USCIS to adjudicate long pending cases. A writ of mandamus is not a request that the application be approved, but simply that the application be adjudicated. Approvable cases often are approved by USCIS after a writ of mandamus is filed. Once this occurs, the lawsuit is dismissed by agreement.
In the citizenship context, there is a separate legal action known as a “Section 1447(b) action,” a provision of law that requires USCIS to decide applications for citizenship within 120 days of the examination. “Examination” generally has been held by the courts to be synonymous with the naturalization interview, although a minority of courts have held that “examination” refers to the entire process of deciding a naturalization application. The law gives applicants a right to ask a federal court to decide or to order USCIS to decide an application 120 days after the USCIS interview. Often the filing of a 1447(b) action will result in prompt adjudication of the naturalization application. However, like a mandamus cases, it is essential that the applicant’s eligibility for naturalization be carefully evaluated before filing a 1447(b) action, as the government can and often does elect to oppose the court’s intervention and will fight applications where it does not believe naturalization is warranted.
Maggio & Kattar’s litigation practice group has filed dozens of mandamus and 1447(b) actions to compel adjudications for our clients, with excellent results. For more detailed information, please see the recent article on writs of mandamus and Section 1447(b) actions by Andres Benach posted on our web site.