INTRODUCTION
If USCIS is not doing something that it should be doing, you can sue USCIS in federal district court. The most common federal court action is called a mandamus action, however are several other federal court actions available to non-citizens in immigration related 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.”
§ 1361. Action to compel an officer of the United States to perform his duty
The 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.
Mandamus and naturalization. In general, for naturalization applications, USCIS has 120 days to make a decision on a naturalization application after the interview. If the adjudication of your naturalization application is taking longer than 120 days, you can file a mandamus action in federal district court to compel USCIS to make a decision. Please note that the mandamus suit merely compels USCIS to make a decision. The mandamus action cannot compel USCIS to approve the application, but merely to make a decision and USCIS can approve or deny the application. Typically, the firm will not recommend a mandamus action until the naturalization application has been pending for more than one year.
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.
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 a 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, to qualify for NACARA (Nicaraguan Adjustment and Central American Relief Act), a non-citizen must be a member of the class action settlement under 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 class membership. If USCIS denies class membership, then you must file a declaratory judgment action in federal court asking the court to “declare” you a member of the ABC class settlement.
Recent Case Results
September 17, 2012 – Citizen of Nigeria finally receives an I-130 petition from his U.S. citizen wife after eight years of trying
Facts: A citizen of Nigeria was placed in removal proceedings after his third I-130 petition had been revoked by USCIS. His first I-130 (filed nearly seven year earlier) had been denied and his second I-130 petition had been abandoned. In the process, the citizen of Nigeria had hired several immigration lawyers and had spent thousands of dollars. His fourth attorney had filed his fourth I-130 petition. Unsatisfied with his fourth lawyer, the citizen of Nigeria came to the form for help.
The Firm’s Representation: The firm supplemented the I-130 petition, prepped our clients for the marriage interview, and represented our clients at their USCIS interviews. USCIS was hesitant to make a decision, so the firm filed a complaint with the CIS Ombudsman and later we filed a mandamus in federal court.
Outcome: On September 17, 2012, about a month after we filed the mandamus action, our client was granted a family based I-130 petition. Subsequently, the firm got our client’s removal proceedings terminated and we filed a I-485 adjustment of status application with USCIS.
July 27, 2012 – A citizen of Nigeria became a citizen of the United States despite a recent conviciton for disobeying a lawful order from a police officer
Facts: A citizen of Nigeria was convicted of disobeying a lawful order from a police officer. Later, he tried to naturalize, however his naturalization application was denied based on the conviction and he came to the firm for help.
The Firm’s Representation: The firm immediately filed an appeal of the naturalization denial – technically called a Request for a Hearing on a Decision in Naturalization Proceedings under Section 336 of the Act. The firm asserted that despite the conviction during the statutory period, our client was still a person of good moral character and USCIS should approve his naturalization application. After the hearing, USCIS stalled on making a decision for another year. The firm filed a mandamus action in federal court demanding that USCIS make a decision on the naturalization application.
Outcome: Three weeks after the firm filed the mandamus action in federal court, USCIS scheduled our client for a naturalization swearing in ceremony. On July 27, 2012, our client became a proud citizen of the United States.
April 14, 2011 – NACARA application denied based on manslaughter charge, appeal pending in the U.S. Court of Appeals for the Fourth Circuit
Facts A citizen of Guatemala came to the United States in 1984. In 1986, he was convicted of manslaughter in Washington, D.C. In 1991, he applied for inclusion in the American Baptist Churches (ABC) class action settlement. In 2006, the United States Citizenship and Immigration Services denied his application for NACARA benefits stating that his manslaughter conviction rendered him ineligible. He contacted the firm for help with his case.
The Firm’s Representation The firm took our client’s case and filed a writ of habeas corpus in the United States District Court of Maryland. Later, the firm filed a complaint for declaratory judgment and injunction relief and motion for a temporary restraining order. In addition, the firm represented our client at his NACARA hearing in the immigration court.
Outcome On March 12, 2010, the U.S. District Court issued an order declaring our client to be a member of the ABC class action settlement and ordered the government to comply with the terms of the ABC class settlement. Our client’s NACARA application was denied by the immigration court. The firm appealed to the Board of Immigration Appeals, which denied the appeal on April 14, 2011. The firm appealed the BIA’s decision to the U.S. Court of Appeals for the Fourth Circuit. The matter has been briefed and we are awaiting a decision from the court.
March 2, 2010 – Citizen of Liberia received his green card after the firm filed a mandamus action in federal court
Facts A citizen of Liberia was granted refugee status in 2004. In 2006, he filed for adjustment of status. The United States Citizenship and Immigration Services (USCIS) delayed adjudication of his application for over two years. He contacted the firm to see if anything could be done.
The Firm’s Representation In March 2009, the firm filed for a writ of mandamus in federal court to compel the USCIS to adjudicate our client’s adjustment application.
Outcome on March 2, 2010, our client was granted adjustment of status to that of a lawful permanent resident.