When all else Fails: Suing the Federal Government
Pursuant to the rules of the Florida Bar, you are advised that if past results are mentioned, each case is different and those provided may not be representative of the results obtained by the lawyers.
One common problem that our firm assists clients with is one of delayed adjudication. Delayed adjudication occurs when the U.S. Citizenship and Immigration Service or the U.S. Department of State delays making a decision in a case. This delay can occur when one files an application such as for naturalization, a family petition, an adjustment of status/immigrant visa application. Nonimmigrant visa petitions/applications may be delayed as well. In some cases, the delays can last for years upon years. In appropriate cases, our firm offers a solution.
The story here has to do with our client, a U.S. citizen and daughter of a foreign national. Our client had filed a petition for her 73 year old mother who was residing in Colombia. Given the increasing age and deteriorating health of her mother, it was vital that our client bring her mother to the United States to live with her where she could take care of her. Our office prepared and filed the petition, which was approved by the USCIS. And then in accordance with the procedure, our office properly prepared the immigrant visa application, filed with the Department of State . . . and an immigrant visa appointment was set at the U.S. Embassy in Colombia.
The Problem: At the Embassy, the interviewing officer conducting the full interview and requested no further evidence. However, the officer issued a standard visa refusal sheet stating that further "administrative processing" must be conducted before issuing the visa. Our 73 year old applicant returned home disappointed, not understanding why she was refused. We advised her and her daughter to allow the Embassy a reasonable amount of time to complete its administrative processing.
Eventually, time passed and our office kept inquiring of the status of the case with the Embassy. After six months of waiting, we advised our clients that ultimately a writ of mandamus action would be the appropriate remedy to enforce the adjudication of the visa application. Such a lawsuit would be filed in Federal Court against the U.S. Department of State.
Our clients were reluctant to file this action. They feared that filing such an action may cause the Embassy to discontinue the administrative processing and actually deny the visa. We explained that while this is a valid concern, the immigration regulations require the Embassy to justify any denial, i.e. the reason for the denial must be explained. And as far as our clients knew, there was no reason to deny the visa in this case.
After one year had passed since the visa interview, our clients decided to proceed with filing the suggested writ of mandamus lawsuit in Federal Court. Our office filed the lawsuit at once.
The government resisted. The government filed a motion to dismiss arguing that the refusal of the visa for administrative processing was itself a decision which discharged its duty to make a decision in this case. It also argued that the Federal Court in the United States does not have jurisdiction over a foreign national outside of the United States and that the Department of State has exclusive authority over the visa application.
As a response, our office replied that the government's refusal of a visa giving "administrative processing" as a reason was not a proper decision as required by the regulations. A proper decision to deny the visa must be supported by a clear and specific explanation. We further argued that a U.S. citizen petitioning to bring her mother to live with her constituted a "family unity" interest which was indeed a protected constitutional right. Thus, the Court did have jurisdiction.
The Court agreed with our position and denied the government's motion to dismiss. As a result, the Embassy completed its processing and contacted the applicant to issue the Immigrant Visa. The Embassy never explained the reason for the delayed processing, but our client was relieved to be reunited with her daughter in the United States.
This story illustrates that sometimes, even when you are fully eligible for an immigration benefit, you may still encounter difficulties due to the government's inaction. In such cases, you may have to resort to litigation to enforce your rights.
Shahzad Ahmed, Esq. Partner Senior Immigration Attorney