Immigration law is managed under the jurisdiction and authority of the United States Citizenship and Immigration Services (USCIS). This agency is alloted the ability to process requests, implement policy and procedure, and interpret the Immigration and Nationality Act. Federal litigation is an important tool to challenge USCIS and ensure that the agency does not overstep its administrative roles.
Policy to Know
The Administrative Procedure Act (APA) is the federal statute which regulates federal agencies, including United States Citizenship and Immigration Services (USCIS). Under the Administrative Procedure Act a person who has suffered or is suffering a legal wrong because of agency action is entitled to judicial review. 5 U.S.C. §702.
An APA claim is made through a civil lawsuit filed in a federal district court. Venue is determined according to 28 U.S.C. §1391(e), which states that a suit against the federal government or a federal official acting in his or her official capacity can be brought in any judicial district where (1) a defendant resides; (2) a substantial part of the events or omissions giving rise to the claim occurred; or (3) the plaintiff resides if no real property is involved.
Using these federal lawsuits is an important aspect of immigration defense as it often provides the only real opportunity to challenge USCIS’s frequent decisions that violate the Immigration and Naturalization Act.
MyRights Immigration has successfully challenged USCIS in federal district court on a number of issues. If your case has been denied a federal lawsuit under the APA may be your opportunity to continue to fight your case.
A Writ of Mandamus is a specific type of federal litigation which seeks an order from the federal district court compelling USCIS to act on an application. The APA requires USCIS to carry out its duties within a reasonable time stating, “with due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. §555(b)
Unfortunately, USCIS often fails to adjudicate applications within a reasonable time. In these situations USCIS usually provides little to no explanation regarding the delays or an expected time frame for resolution. The solution to many of these delays is filing a Writ of Mandamus. This is a civil action pursuant to 28 U.S.C. §1361 which gives the district court “original jurisdiction of any action in the nature of mandamus to compel an officer of the United States or any agency to perform a duty owed to the plaintiff.”
MyRights Immigration consistently uses this powerful tool to challenge USCIS and to protect our clients from undue and unreasonable delays.
The approval or denial of N-400 Applications is the responsibility of USCIS under the INA and federal regulations. See 8 U.S.C. § 1427; 8 C.F.R. §§334, 335. Under 8 C.F.R. §335.3(a), USCIS is required to make a decision on an N-400 Application within 120 days of the applicant’s initial examination. A failure to render a decision within this 120 day timeline gives the Applicant the right to file a complaint with the Federal District Court having jurisdiction over where they live.
Federal litigation is a powerful way to “force” USCIS to adjudicate (not necessarily approve) a severely delayed N-400 Application, and can sometimes be the best way to seek resolution of a pending or delayed citizenship application (Form N-400).
8 USC §1447(b) states in relevant part, “If there is a failure to make a determination under §1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.”
Additionally, Federal litigation may be the most appropriate remedy for naturalization applications which have been denied.