INTRODUCTION
Do you have an immigration application that has been pending for a long time? Have you contacted USCIS numerous times and they did not do anything? Are you frustrated that USCIS is not doing anything with your immigration application? If you answered yes to any of these questions, you might want to consider suing the USCIS in federal court to make USCIS make a decision on your long-delayed immigration application. NOTE: The first thing you should know is that you will not be penalized for suing USCIS. Actually, the opposite is true – if you sue USICS in federal court, USCIS will give your immigration application personal attention and service to make sure it is adjudicated as quickly as possible.
The most common federal court action is called a mandamus action where we demand that USCIS adjudicate your long-delayed immigration application. In addition, there are several other federal court actions available to non-citizens regarding their immigration matters.
MANDAMUS ACTIONS
Mandamus means “we command” in Latin. A mandamus action is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly. The federal district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. In other words, in a mandamus action, you are suing USCIS to compel them to do something that USICS should be doing. This typically arises when USCIS does not make a decision on an application in a timely manner, such as long-delayed I-130 Petition for Alien Relative applications and I-485 permanent residency applications.
Mandamus and naturalization. In general, for naturalization applications, USCIS has 120 days to make a decision on a naturalization application after the naturalization interview. If the adjudication of your naturalization application takes longer than 120 days, you can file a mandamus action in federal district court to compel USCIS to make a decision on the naturalization application. Please note that the mandamus suit merely compels USCIS to make a decision. The mandamus action cannot compel USCIS to approve the application, but it does compel USCIS to make a decision on your application, which means that USCIS could approve or deny the application.
Mandamus and adjustment of status. In general, there is no time limit for USCIS to make a decision on adjustment of status (I-485) and petitions for alien relative (I-130). However, the federal courts have generally said that any delay over two years is unreasonable. If your I-130 or I-485 has been pending for more than two years, you should consider filing a mandamus action in federal district court.
Mandamus for other USCIS issues. Mandamus is available for any action that USCIS is supposed to do but does not. For instance, recently one of the firm’s clients applied for a green card through a very unusual set of circumstances. The application was rejected two times. Then, the firm filed a mandamus action in federal court demanding that USCIS accept the filing. Once the firm filed suit, we were directed to file the application once again and it was accepted and that client now has a green card.
DE NOVO REVIEW OF NATURALIZATION DENIALS
If your naturalization application is denied, you can file an N-336, Request for Hearing on a Decision in Naturalization Proceedings. If USCIS denies the N-336, you can file an action in federal court pursuant to 8 U.S.C. § 1421(c) asking the federal district court to review your application for naturalization. The federal district court may completely review all aspects of your naturalization application regardless of what USCIS said or did. Federal court review is a very powerful weapon because USCIS hates when the federal courts get involved with their decisions. USCIS hates federal court so much that they will do almost anything to avoid it which means that you should always force the issue and file an N-336 when USCIS initially denies your application for naturalization. Once you file an N-336, the stakes are raised for USCIS because if USCIS denies your N-336, you can go directly into federal court.
DECLARATORY JUDGMENTS ACTIONS
A declaratory judgment is a judgment of a court in a civil case that declares the rights, duties, or obligations of one or more parties in a dispute. Declaratory judgment action are rarely used in immigration related matters, do they do arise from time to time.
For example, one way to qualify for NACARA (Nicaraguan Adjustment and Central American Relief Act) is to register as a class member under the American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D. Cal. 1991), or the (“ABC”) settlement class. Only the federal district courts have jurisdiction to review ABC class membership. If USCIS denies class membership, then you should file a declaratory judgment action in federal court asking the court to “declare” you a member of the ABC class settlement.