When USCIS fails to make a decision – immigration delay – regarding an application for naturalization or a green card, then it may be necessary to file a law suit in federal court. This type of lawsuit is called a “writ of mandamus.” A writ of mandamus is a civil action and is issued by a superior court to compel a government officer to perform mandatory duties correctly. The Mandamus Act, codified at 28 USC §1361 says, in its entirety: 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. As mandamus is a civil action, the district courts local rules and the Federal Rules of Civil Procedure apply. The Federal Rules of Civil Procedure are available online at http://www.uscourts.gov/rules/CV2008.pdf . The local court rules for the United States District Court for the District of Colorado are available at http://www.cod.uscourts.gov/LocalRules/Rules.aspx. Local rules for other United States District Courts are available on the courts’ websites.
Most delays of applications are due to FBI “name checks” or “security checks.” These FBI name checks can have an applications stuck in the system for years and years. These delays are usually based simply upon the applicants name and the country they come from. These delays affect any application that is subject to FBI name check and security checks. In recent years a large percentage of the mandamus cases filed are suits to compel adjudication of green card applications.
Recent legislation has had an enormous impact on immigration delay cases and the remedies available for those who are being delayed due to terrorist related grounds. The USA PATRIOT Act, Pub L. No. 107-56, 115 Stat. 271 expanded the definition of terrorist activity and created the new “undesignated” or “Tier III” terrorist category. A Tier III terrorist organization is defined as a “group of two or more individuals, whether organized or not…. that engages in terrorist activity.” Under the broad definition of “terrorist activity” under INA § 212(a)(3)(B)(iii)(V) many refugees fleeing war torn nations could easily fall into this category. Many individuals that had been granted asylum or refugee status in the United States many years ago because of persecution in war torn nations are still waiting for their adjustment applications to be adjudicated because they are now deemed to fall into the Tier III category.
The enactment of the Consolidated Appropriations Act of 2008, Pub. L. 110-161, 121 Stat. 1844 (December 26, 2007)(“CAA”) codified at 8 U.S.C. § 1182(d)(3)(B)(I), was passed in part to deal with the withholding of adjudication of thousands of applications based on association with or material support given to certain terrorist organizations or other groups. The CAA has given the authority to the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General to exempt most terrorism related grounds as a matter of discretion.
Based on this newly expanded discretionary authority, the Deputy Director of USCIS issued a memorandum on March 26, 2008 instructing USCIS application adjudicators to withhold the adjudication of cases that could benefit from future exemptions currently being considered. The memorandum further directs adjudicators to notify appropriate officials within USCIS of cases that may benefit from possible exceptions under CAA. This guidance was reaffirmed in a second USCIS memorandum dated July 28, 2009. U.S. immigration attorney Bobbie C. Masters can help you get off of the FBI name check list and compel USCIS to make a decision regarding your case. You can keep waiting and waiting, or you can contact Masters Law Firm, P.C. in Denver, Colorado today to make an appointment.