Can an Immigrant Sue the Government for Excessive Delays in their Application?
It just might be your best option!
The last thing an immigrant wants to do is irritate the U.S. Government and do anything that might jeopardize their chances of obtaining their immigration relief. Our clients are hard workers who bring to this country their culture which usually teaches them a great respect for authority. Obtaining immigration relief is one of the most important milestones in their life as an American and most are willing to wait as long as it takes to obtain this benefit. However, the United States is a country where the law can work for even the most marginalized populations. Even though this is an incredibly good and blessed country and a wonderful place to live, sometimes the bureaucracy in our government produces unfair results for very good people. It is important for new Americans to realize that holding the U.S. Government accountable is not a sign of disrespect but is actually a very patriotic way of improving our system for others who might be in the same unfavorable situation.
When it comes to immigrant petitions, we know that are clients wait on a daily basis for the results of their applications. Usually, the only advice we can give to an eager client is to patiently wait. There are listed processing times for immigrant applications which tell us whether the government has exceeded normal processing times. For example, if you received Asylum Status and have filed for a Greencard, the Nebraska Service Center or the Texas Service Center will be responsible for adjudicating the first part of your application. According to the government’s website, they are currently working on Asylum Greencard applications that were filed on or before January- April of 2017. That means that if you filed later, you need to wait patiently.
What can I do if my application has exceeded normal processing times?
There are many things you can do. You can call and place an official inquiry. You can email them and you can also place an inquiry online. If these requests do not produce any favorable result in 60 days, you can even have someone from the Government write a letter on your behalf. It is important that you make and document attempts to contact the government about the delay. Keeping a paper trail of your attempts will show the Government that you did everything you could to give them a chance to adjudicate your application in a timely manner.
What can I do if the Government still does not give me a decision, even after many attempts to contact them?
While we have to be understanding of the Government’s high work load and understand that most of its officers are doing their very best to adjudicate an ever growing number of applications, we cannot tolerate excessive delays. There is no formula to determine exactly what “excessive is”. However, in our opinion, if your application has been pending for over 6 months beyond the processing time, you should probably write a letter to the government explaining your desire to consider a lawsuit and be prepared to act within 30-60 days of writing that letter. If your application has been pending for close to or over a year, that is clearly excessive and if you have given the government ample opportunity to do their job and they simply haven’t done it, you have a very effective legal recourse available to you.
What is Mandamus and how can it help me?
The Mandamus Act is a Federal Statute that states that the Government must perform any duties owed to other people. The Act specifies that in immigration cases, the Government must render a decision and, if the decision is a denial, state in detail the reasons for the denial to give the applicant a chance to appeal. Our courts have held that, while decisions to grant immigration benefits are discretionary, the Government does not have discretion to simply not issue a decision. The Act states that the Government must issue a decision within a “reasonable time”.
If you can show that you have suffered excessive delays beyond the normal processing time, you can file a Mandamus Action in the Federal Court that has jurisdiction over your matter. In our experience, our clients have achieved excellent results through these lawsuits and usually have a positive result within 3 months of filing!
Many clients fear that filing will trigger retaliation from the Government, but actually quite the opposite is true. These lawsuits are filed with the Federal Courts who will assign the case to a Prosecutor. This Prosecutor works for the Federal Prosecutor’s Office and not for USCIS, which is the organization responsible for adjudicating immigration petitions. These Federal Prosecutors are usually very busy and do not want to be bothered with cases from USCIS. Because of this, we have actually seen that these Federal Prosecutors become our biggest ally in getting these cases approved in a timely fashion! Once they read our motions and see that we have proven our point and will likely prevail in court before a judge, they exert substantial pressure on USCIS to adjudicate the application. Since the law requires USCIS to state reasons for denial, they cannot deny your case simply because you filed a Mandamus Action in Federal Court. Logically, they are especially unwilling to do this to an applicant who has show that he will not hesitate to sue in Federal Court! Thus far, all of our Mandamus Actions have resulted in quick approvals for our clients!
What if there is some trouble with my case, such as my previous attorney getting arrested for fraud, etc?
This is a fear shared by many in our community who were taken advantage of by very dishonest attorneys who are now disbarred because of criminal convictions for immigration fraud. Our clients whose previous attorneys were arrested and who now have pending Asylee Greencard applications fear that
- USCIS will deny the application for the Greencard as soon as they see who the prior attorney was; and
- Even if they get the Greencard, the Government can put them in proceedings later and try to take away their Greencard
These are reasonable but unfounded fears. First, because of the reasons stated above which include the substantial pressure by the Prosecutor’s Office and the Government’s Duty to issue reasoned decisions, this is not how this scenario actually plays out. While it is possible for the Government to issue a denial, we have not yet seen it in one of our Mandamus cases. We always review the previous filing to make sure there is no reason for the Government to denial the application.
Second, it is true that now the Government is investigating all cases filed by immigration attorney convicted of immigration fraud. However, I am going to provide you with extremely important information to aid you in your decision to consider filing your Mandamus Action now as opposed to waiting for the Government to contact you about accusations of fraud.
BURDEN OF PROOF
This is a very important principle in American litigation practice. Different cases have different Burdens of Proof depending on how serious our lawmakers see the right of those that are being accused in the proceedings. The highest burden of Proof is “Beyond a Reasonable Doubt”. This burden is reserved for criminal cases where the government is trying to take away your liberty. This is the highest burden of proof and is only reserved for those cases.
However, next to that is the “Clear and Convincing” Standard. For this standard, the government needs to prove that the accusations against you are “highly probably true”. This is still a very high standard and requires specific and compelling evidence against you. If you are a Greencard holder and the Government wants to place you in Immigration Court proceedings because of who your asylum attorney was, they will have to prove it under the “Clear and Convincing” standard. One famous Supreme Court case (called WOODBY) discussed this standard in immigration court proceedings. In that case, the Government was accusing a Greencard holder of pledging allegiance to another country by fighting in the Spanish Civil War. The Government was able to produce a witness who had supposedly seen and fought alongside the defendant in that war. However, the evidence was not sufficiently reliable under the Clear and Convincing standard and the Supreme Court agreed with the Immigration Judge that the defendant should not be deprived of his legal status in the United States.
In our experience with the recent termination cases due to attorney fraud, the government has had a very hard time with this standard in immigration court. From what we have seen thus far, the evidence they are able to gather are conviction records showing that the Attorney committed fraud on a large scale. Sometimes there are sworn affidavits by the Attorney or the Paralegals attesting to some of the fraud that took place. However, in no case have we seen specific evidence of wrongdoing against our clients. No witnesses have come forth specifically stating that our clients participated in the attorney’s fraud. We have successfully argued that this kind of evidence is not enough under the “Clear and Convincing” standard and will continue to do so.
However, if the Government contacts a client about fraud accusations before the client gets the Greencard, then the Government enjoys a much lower Burden of Proof called “Preponderance of the Evidence”. For this, the Government only needs to show that the accusations are “Probably True”. In other words, if they can show that there is a 51% chance that you participated in the fraud, they can terminate your status and place you in removal proceedings in immigration court! In our experience, this is not a very high standard at all and many immigration officers at the Asylum Office use this to terminate the status of those that do not have Greencards! These clients (and all of their family members who received derivative asylum status) then have to go to immigration court and apply for Asylum all over again. At Alexandre Law Firm, we are making the Novel argument that USCIS does not have the authority to terminate asylee status and that only an immigration judge can do so. We are seeing that the judges are receptive to this argument and are shifting the burden to the government.
Therefore, even if placed in immigration proceedings because of attorney fraud, a client who is a Greencard holder enjoys significantly higher protections under the law than someone who is not. Those who have been waiting for their Greencards without any meaningful update from USCIS need to consider filing a Mandamus Action to protect their status in the future.
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