When Your Attorney Should Litigate Your Immigration Case
Immigration law can be confusing, even for experienced attorneys. The immigration laws and regulations were enacted over decades by politicians and bureaucrats with differing views of immigration policy. For these reasons, by contrast with, for example, the relatively elegant scheme of regulation found in the federal securities laws, immigration law is a hodgepodge of regulations and practices that form no coherent whole. Just in recent history we have witnessed successive United States presidents holding declared views of immigration which may have seemed at odds on their face, when in reality the results were heightened scrutiny of immigration petitions and accelerated levels of removal (deportation) enforcement by both administrations.
In addition, the immigration bureaucracy embodied in agencies such as USCIS, EOIR, ICE, DHS, DOS, and CBP are underfunded and overwhelmed, particularly given the strains of historic levels of refugees and seekers of asylum. Relatively straightforward immigration petitions, whether family or employment-based, may now result in waiting years instead of months for approval, while asylum applicants in some parts of the country are told to expect to wait from three to five years or more before being granted an interview.
In some and probably most cases, the best approach may be to accept the fact that immigration cases take time. In others, though, where there may be a compelling reason to try to move a case forward more quickly, a means to do so is available.
You can sue the government.
The types of immigration problems which might in some instances or in some postures be good candidates for litigation are too numerous to list, but some of the more common ones are when constitutional rights such as the right to due process have been violated, when the immigrant is in detention, when an immigration application or petition has been unduly delayed, or when the government has denied a citizenship application.
A person with even a colorable asylum claim must be given the opportunity to assert the claim; otherwise, that person’s right to due process has been violated.
Although federal immigration authorities — ICE — have the right to place some persons in detention, particularly those who have been ordered “removed,” or deported, some persons in detention may be challenging their removal orders on appeal in another court. For those persons and some others in detention, filing a lawsuit to seek a writ of habeas corpus, in which the court is asked to order the release of the immigrant from detention, may be appropriate.
Some delays in processing citizenship or green card applications are inevitable, and it is true that the United States Customs and Immigration Service (“USCIS”) faces a substantial backlog. Nevertheless, Congress has expressed the intent that applications should be decided in months, not years.
Delays substantially outside these guidelines may provide the petitioner or applicant with a cause of action under the Administrative Procedures Act, 5 U.S.C. § 500, sometimes called a Writ of Mandamus. While the federal court cannot order the USCIS to approve the pending petition, the court does have the power to order the executive branch to do its job and review the petition.
There can be risks associated with this type of litigation. USCIS may have found something in the background of the petitioner that causes it to deny the petition. The petitioner’s country of origin may have some bearing on both delays in making a decision and on decisions to deny petitions. For example the USCIS may subject an applicant to the Controlled Application Review and Resolution Program (“CARRP”) if the applicant is from a majority Muslim country. Arguably, the CARRP may unconstitutionally discriminate against a petitioner on religious grounds.
In addition, immigrants or non-immigrant applicants from the People’s Republic of China may see more delays and stricter scrutiny of applications, perhaps because Chinese immigrants now constitute the largest national group of immigrants to the United States.
At times, however, when USCIS has no real objection, they will go ahead and process the application or grant the interview after the lawsuit is filed. In the interim and in the very least, the lawsuit provides a channel for communication between the lawyer representing the applicant and an Assistant United States Attorney and his or her client, the USCIS.
Naturalization petitions may also be denied, in some instances, for impermissible reasons. At times, depending on the facts, and even though the officer reviewing the application is trying to be fair and impartial, a citizenship applicant can be denied for improper reasons or because of an incorrect interpretation of the law.
Litigation of immigration matters is a serious step, one not to be taken without careful and thorough factual and legal research and full and effective communication with the potential plaintiff and his or her family or friends. In all such cases where litigation may be an appropriate strategy, the person seeking to change his or her immigration status will be best served by seeking counsel with both immigration law experience and experience litigating complex matters in federal court.