You Can Win Your Delayed Immigration Case In Federal Court
USCIS delays create frustration, family separation and, in some cases, tragic results where an employer petitioner or family petitioner is lost before the case has been completed. That is why for the past 10 years, one of my specialty practice areas has been filing federal district court actions often referred to as “Mandamus” cases.
Last week I had the pleasure of obtaining an approval for a Philippine national who had waited over two years to complete a Naturalization application. Naturalization applications normally process in six to eight months, so a wait of two years is significant. As with many of my clients from the Philippines, she was anxious to become a U.S. Citizen and wanted desperately to have her voice heard in this November's presidential elections. Other clients have family concerns such as the ability to petition a spouse or parent without having to endure long visa processing dates required for a legal permanent resident petitioner.
Since December of 2007, USCIS and the U.S. attorney's office has been actively contesting writ of mandamus cases. One tactic has been holding off on conducting the naturalization interview until all federal background checks both with the FBI and USCIS have been completed. By delaying the interview USCIS escapes being held to the 120 day rule which allows the District Court to decide a case once 120 days has passed following the naturalization interview. USCIS also regularly appeals to certain statutory language that may indicate federal background checks must be completed prior to adjudication of a case.
A skilled federal district court attorney must be able to prosecute and not just file the complaint. In my latest case, it was only after opposing government motions and stating our arguments with regard to the merits of their case that we prevailed; the naturalization interview was completed and the case was decided in my client's favor. My client is now a U.S. Citizen.
Making a federal case of your immigration application, whether for legal permanent residency (green card), visas for spouses or children, or as in my most recent case naturalization, is an important step. It is important that your attorney examine all aspects of your case including its strengths and weaknesses. USCIS has made great strides in reducing backlogs, and so if your case has been “hanging around” for two years or more it is safe to say something has gone wrong and your case may not be completed without a prod from the federal courts. In fact in certain circumstance officers at USCIS have suggested writ of mandamus cases should be filed and appreciate having the federal case as a basis for going forward.
In my experience, delays may come from background checks, but they may also come from lost files, multiple files or A #s, changes of address by the client, or in certain circumstances an effort by USCIS to delay a case. Usually when the client and even attorney inquiries fall on deaf ears, an appeal to the Federal District Court Judge is the last but necessary step to end the long wait.
I encourage you to consult with qualified counsel and consider this option when seeking to resolve your delayed case.
Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.
A similar version of this article may have been published in the Asian Journal.