FEDERAL LITIGATION PRACTICE
Litigation in federal court is becoming more and more common in the practice of immigration law, particularly due to the unreasonable delay faced by many foreign nationals who have applied for immigration benefits. Our federal litigation practice consists of the following types of cases: petitions for review, challenges to processing delays in naturalization cases, complaints for writ of mandamus, and habeas corpus petitions.
Petitions for Review
Should an individual be denied relief before the Immigration Court and before the Board of Immigration Appeals (“BIA”), the individual may petition for the case to be reviewed in the United States Court of Appeals. The Court of Appeals may exercise judicial review of immigration decisions if there is a question of law or a constitutional claim to address, but will generally not review discretionary or factual determinations made by the administrative bodies below. Generally, the Court of Appeals will not review a case unless a final order has been entered by the administrative body below. A petition for review must be filed within 30 days of the decision of the BIA with the Court of Appeals having jurisdiction over the Immigration Court where the proceedings took place. If a Court of Appeals grants a petition for review, it may return the case to the Board of Immigration Appeals for further proceedings. If it denies the petition, the individual has a right to request a rehearing before the Court of Appeals or to file a petition for writ of certiorari with the United States Supreme Court. However, it is very rare for the Supreme Court to accept a petition unless several federal courts of appeals have issued differing opinions on the legal issues in the appeal.
Challenges to Unreasonable Delays in Naturalization Applications
By statute, when the U.S. Citizenship and Immigration Services (“USCIS”) fails to make a decision on a naturalization application within 120 days after the initial examination (the naturalization interview), the applicant may ask a federal district court to intervene due to the unreasonable agency delay under 8 U.S. Code 1447(b). The federal district court then has jurisdiction to either adjudicate the naturalization application in court, or remand it to USCIS with an order to adjudicate the application without further delay. These petitions are an effective tool in pushing USCIS to adjudicate long-pending naturalization applications following an N-400 interview, particularly when the applicant has already made multiple attempts to resolve the matter with USCIS.
Complaints for Writ of Mandamus
Where the U.S. government’s immigration agencies have failed to act when they have a duty to do so, complaints for writ of mandamus can be an effective remedy. These complaints have become a useful tool for foreign nationals who have submitted an application for an immigration benefit, which remains pending and unadjudicated after an unreasonable amount of time has passed. In these situations, it may be possible to pursue litigation in federal district court to compel the government to adjudicate the long-pending application. Filing a complaint for writ of mandamus in a U.S. District Court may be advisable for long-pending applications for which many attempts have been made to resolve the matter administratively. When the U.S. government fails to make a decision on an application within a reasonable time, the applicant may ask a district court to intervene due to the unreasonable government delay. If the applicant establishes that she has a clear right to relief, that the government has a clear non-discretionary duty to act, and that there is no other adequate remedy available, a federal district court may assume jurisdiction over the matter and either adjudicate the application or order the government to adjudicate it without further delay. Many applications, such as I-601 and I-601A waivers, U visa Bona Fide Determinations, I-751 Removal of Conditions, and Asylum interviews and adjustments of status have multi-year backlogs. A writ of mandamus can force the government to adjudicate these long pending applications. Of course, this process does not guarantee that the government will approve the application. Rather, the purpose of this litigation is to push the government to act.
Habeas Corpus Petitions
As stated by the U.S. Supreme Court, a writ of habeas corpus “is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” U.S. federal district courts have jurisdiction to consider and grant writs of habeas corpus to individuals who are held in custody by the federal government in violation of the laws of the United States. A petition for a writ of habeas corpus is a useful tool for an individual who wishes to challenge the legality or the length or conditions his or her immigration detention. The U.S. Supreme Court has upheld the availability of writs of habeas corpus in bringing challenges to post-removal order detention, pre-removal order detention, and the detention of persons found to be inadmissible to the United States.
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