When Your Attorney Should Litigate Your Immigration Case
In some and probably most cases, the best approach may be to accept the fact that immigration cases take time. In others, though, where there may be a compelling reason to try to move a case forward more quickly, a means to do so is available: file a lawsuit against the government.
The Writ of Habeas CorpusAlthough federal immigration authorities -- ICE -- have the right to place some persons in detention, particularly those who have been ordered "removed," or deported, some persons in detention may be challenging their removal orders on appeal in another court. For those persons and some others in detention, filing a lawsuit to seek a writ of habeas corpus, in which the court is asked to order the release of the immigrant from detention, may be appropriate.
Undue DelaySome delays in processing citizenship or green card applications are inevitable, and it is true that the United States Customs and Immigration Service ("USCIS") faces a substantial backlog. Nevertheless, Congress has expressed the intent that applications should be decided in months, not years.
Delays substantially outside these guidelines may provide the petitioner or applicant with a cause of action under the Administrative Procedures Act, 5 U.S.C. ? 500, sometimes called a Writ of Mandamus. While the federal court cannot order the USCIS to approve the pending petition, the court does have the power to order the executive branch to do its job and review the petition.
Potential RisksThere can be risks associated with litigating an immigration matter. USCIS may have found something in the background of the petitioner that causes it to deny the petition. The petitioner's country of origin may have some bearing on both delays in making a decision and on decisions to deny petitions. For example, the USCIS may subject an applicant to the Controlled Application Review and Resolution Program ("CARRP") if the applicant is from a majority Muslim country. Arguably, the CARRP may unconstitutionally discriminate against a petitioner on religious grounds.
In addition, immigrants or non-immigrant applicants from the People's Republic of China may see more delays and stricter scrutiny of applications, perhaps because Chinese immigrants now constitute the largest national group of immigrants to the United States.
In such cases, the decision whether to litigate must be weighed against the potential risks.
Potential RewardsAt times, when the USCIS has no real objection, the USCIS will process the immigrant's application or grant the immigrant an interview after a lawsuit is filed. In the interim and in the very least, the lawsuit provides a channel for communication between the lawyer representing the potential immigrant and an Assistant United States Attorney and his or her client, the USCIS.
The Immigrant Should Seek Litigation CounselLitigation of immigration matters is a serious step. In any case where litigation may be an appropriate strategy, the potential immigrant should seek counsel with both immigration law experience and experience litigating complex matters in federal court.