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Immigration practitioners and foreign nationals seeking benefits from U.S. Citizenship and Immigration Services (USCIS) increasingly confront the problem of agency delay.
Petitioners and beneficiaries are familiar with long-pending cases and the uncertainty of agency processes mired in a drawn-out obscurity. Of course, this phenomena is not particular to USCIS, as other agencies struggle to meet statutory and regulatory requirements in the face of flagging Congressional appropriations.[1] Yet, to some extent the problem of agency delay appears to be intrinsic to the administrative state. Over fifty years ago, Professor Davis warned that “[a]dministrative inaction which unduly injures the public will some day be as grievous a fault as administrative action which unduly injures the regulated.”[2] In the world of immigration adjudication, that day has come.
It is no secret that lawyers have options when confronting unreasonable agency delay. Of course, USCIS has expedite procedures and some lawyers are always eager to call upon the assistance of a Congressional liaison. But internal agency procedures and political pressures will not often move the agency to act, especially when the delay is caused by security clearances. When all else fails, the petitioners and beneficiaries facing delays can turn to Article III (federal) courts for assistance.
A commonly used vehicle is the Mandamus Act, which vests federal district courts with the power to compel an agency to act where the agency has failed to perform its duty.[3] In the context of delayed naturalization applications, the Immigration and Nationality Act, as amended (INA), also provides for specific relief in federal district court.[4] As USCIS becomes more pressed for resources and faces more complex statutory requirements in adjudication,[5] applicants will need to turn to these solutions when facing agency delays.
Other immigration practitioners have discussed the use of mandamus as a solution to delays in immigration adjudication.[6] These discussions provide a thorough analysis of the legal underpinnings of mandamus actions. Building upon these prior discussions, this article will focus on the practical and legal issues confronting litigants challenging delayed agency action.
Preparing the Case
Before considering a civil action in federal court, counsel must determine whether the substance of the case is meritorious and approvable. Of course, it would be a colossal waste of time to obtain a writ of mandamus in federal court only to have the case denied on the merits at the agency level. For this reason, counsel must review the underlying application and the client’s entire immigration history in order to determine whether the agency will have any basis to deny the case. Ideally, counsel would obtain all records relating to the applicant from USCIS through the Freedom of Information Act (FOIA).[7] Given the fact that USCIS almost never responds to FOIA requests in less than one year, this avenue may be impractical.
As discussed in detail below, an essential element of mandamus and Administrative Procedure Act (APA) cases is whether the agency delay is “unreasonable.” Unfortunately, this is not a determinate standard. It is based on the surrounding nature and circumstances of the case and the average processing and adjudication practices of the agency. In the context of long-delayed naturalization cases, the statute provides a specific timeline for the agency, but judges may nonetheless look to the reasonableness of the delay in fashioning a remedy. Given the unreasonableness standard, it is imperative that counsel review the history of the client’s case, paying particular attention to the prior administrative attempts to move the agency to act.
Where the client or counsel attempts to resolve the case by contacting USCIS or the U.S. Attorney’s office (usually, the chief of the civil division) in the district where the client’s case is pending, the case will be on stronger ground when in federal court. Pre-litigation attempts to move the agency to act will build a stronger argument that the agency’s delay is unreasonable and show the judge that judicial action is the last and only resort.
As administrative lawyers know, appeals of agency action require the exhaustion of administrative remedies.[8] Traditionally, exhaustion was a “prudential rule created by the courts to enable them to allocate responsibilities efficiently between agencies and courts.”[9] This rule does have relevance in the context of mandamus, as courts have required the plaintiff to exhaust all other avenues of relief in order for the writ to issue.[10] In the context of Administrative Procedure Act cases, exhaustion is required only where mandated by statute or regulation and where there is no provision for staying the administrative decision during a pending administrative appeal.[11] Although Darby v. Cisneros appears to foreclose the use of exhaustion as a prudential matter in APA cases, the fact remains that a judge may look more favorably on counsel’s attempt to resolve the delay at the agency level prior to seeking relief in court. Again, letters to the agency informing officials of a possible suit in federal court, or a letter to the U.S. Attorney’s office, should serve this purpose.
Another practical consideration is warranted. Many long-delayed cases at USCIS are the result of the ubiquitous “name check” or “security clearance” requests pending with the Federal Bureau of Investigation (FBI). USCIS subjects all adjustment of status (I-485 and I-698) and naturalization (N-400) applicants to an FBI name check.12 The FBI is the custodian of criminal records, which it must release to other federal agencies upon request,[13] but given the geometric increase in the number of name check requests over the past five years, the FBI is overwhelmed with a backlog of name checks, many of which have been pending for several years.[14]
Prior to December 21, 2006, USCIS’ policy on pending FBI name checks allowed for USCIS to request an expedite from the FBI where an applicant sought relief in federal court. Because of that policy, many long-delayed cases could be resolved rather quickly after filing a complaint in federal court. The expedite policy would allow plaintiff’s counsel and the Assistant U.S. Attorney (AUSA) to work together in resolving the delay within a reasonable period of time, usually within sixty days, assuming no other underlying issues were presented. USCIS changed its policy after December 2006. It no longer provides for an automatic expedite in cases where the foreign national sues the agency in federal court.[15] The agency views an expedite stemming from a civil action in federal court as “line jumping.” In its view, a plaintiff with the money to pay for a civil action is buying a place at the head of the line, ahead of others who filed their cases prior in time.[16]
Regardless of the legitimacy of USCIS’ line jumping view, it has become a brute fact in immigration litigation. Far fewer cases will be resolved by the AUSA soon after the filing of a complaint. Rather, the AUSAs will now consistently file motions to dismiss challenging petitions for writs of mandamus on various legal theories, some of which will be discussed below. It is worth noting that USCIS will request FBI expedites in limited circumstances, where “compelling” factors are present, including the applicant’s demonstrable medical condition.[17] This limited expedite policy reinforces counsel’s duty to investigate the facts and circumstances of the client’s case to determine whether compelling factors can be asserted once a complaint is filed. It is also advisable to allege a compelling factor in the complaint, if it exists.
Finally, counsel should conduct research to determine where the lawsuit should be brought (geographically). Some districts have case law that is not very advantageous to litigants seeking relief under the Administrative Procedure Act for long-delayed applications. As discussed in detail below, this is a venue issue which should be resolved prior to filing the complaint.
The Complaint
Once counsel conducts the initial fact-gathering and determines the circumstances and merits of the client’s case, and the final demand letter has been sent to USCIS or the U.S. Attorney’s office, it is time to draft the complaint. Some attorneys like to treat the complaint as if it were a brief, complete with citations to cases. Others like to drown the complaint with a plethora of facts and all the horrible things that have happened to the plaintiff. This is completely unnecessary.[18] The FEDERAL RULES OF CIVIL PROCEDURE adopt “notice pleading,” which only requires the plaintiff to apprise the defendants of the nature of the suit against them.[19] Accordingly, the Federal Rules “do not require a claimant to set out in detail the facts upon which he bases his claim”; rather, the complaint must only “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”[20]
Jurisdictional Issues
Although the notice pleading standards of the Federal Rules are very lenient, the Rules do require certain statements. A jurisdictional statement is among the required elements in the complaint.[21]
As every student of law knows, federal district courts are creatures of Congress,[22] and their power extends only as far as Congress permits.[23] Therefore, a brief statement that the district court is empowered to hear the case is required. When challenging a long-delayed application, jurisdiction is straightforward. The mandamus statute explicitly provides for jurisdiction in federal district court: “The district courts shall have original jurisdiction of any action in the nature of a mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”[24]
The Administrative Procedure Act of 1946 (APA) also provides an avenue to challenge agency delays. Plaintiffs may sue an agency under the APA asking the district court to “compel agency action unlawfully withheld or unreasonably delayed.”[25] Although an open question at one time, the Supreme Court ruled that the APA does not provide an independent ground of jurisdiction.[26] In other words, the APA only provides a cause of action, and a plaintiff must cite some other statute for jurisdictional purpose before the court can rule on the PA claim. Nonetheless, this is usually not a difficult issue, as a plaintiff can locate jurisdiction in district court under the federal question doctrine: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”[27] In the case of an applicant for adjustment of status with a pending FBI name check, the applicant may assert jurisdiction based on an action arising under the “laws” of the United States, in particular, several provisions of the INA28 and statutes requiring the FBI to report records to federal agencies.[29]
In the context of long-delayed naturalization applications, the INA specifically provides for jurisdiction as long as the applicant can demonstrate the agency’s failure to act within a specified time frame: “If there is a failure to make a determination [on a naturalization application] before the end of the 120 day period after the date on which the examination is conducted [. . . ], the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter.”[30]
Although jurisdictional issues are not a primary concern when litigating delayed adjudications, the judicially developed elements required for a successful suit under each of the statutes discussed above can present more difficult matters. The judicially required elements under mandamus, APA and the naturalization statute lay a foundation for agency defendants to file motions to dismiss on jurisdictional grounds. Recent experience indicates that this will become a trend, and specific examples will be discussed below.
Venue
Once jurisdiction is established, venue simply dictates where the case should be brought, its geographic location. In civil actions involving government agencies or officials, venue is always proper in the judicial district where the plaintiff resides.[31] For practical reasons, the plaintiff’s district may not be convenient. More importantly, the plaintiff’s district may have case law that is not advantageous to the client’s position. In such cases, counsel should consider whether it would be advisable to bring the suit in another district, including where the government defendants “reside.”[32] Arguably, in the case of USCIS, the agency “resides” in any district where it maintains a local district office, so venue could be appropriate almost anywhere in the United States. This conclusion may not always be warranted, as courts have determined that maintaining an office in a judicial district does not automatically make a federal agency a resident of that district for purposes of venue in a specific action.[33] Courts will require that the agency district office engage in a substantial part of the activity complained of in the plaintiff’s complaint for venue purposes.[34]
Although the “substantial activity” test may limit venue options, it would almost always be legally appropriate to sue DHS, USCIS and the FBI in the District of Columbia, as these agencies maintain their headquarters in that district. In many instances, a plaintiff will benefit from the well developed case law of the Court of Appeals for the D.C. Circuit, as many statutes vest jurisdiction and venue over agency appeals in that Court.35 Of course, counsel must research the recent case law in the district where a civil action is contemplated in order to determine the probable outcome based on the facts at issue.[36]
If counsel contemplates filing a civil action in a district court where counsel is not admitted to practice, partnering with a local counsel in that district is required. Most courts permit counsel outside the district to file pleadings with the court, but local counsel must file along with them.[37] In addition, if outside counsel intends to appear in court, local counsel must file a motion pro hac vice on behalf of the outside counsel.[38]
Parties
Obviously, the aggrieved foreign national with the long-pending application or petition will be listed as the plaintiff in the suit, but any other person connected with the transaction or occurrence should be listed as a co-plaintiff. The permissive joinder rule provides: “All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.”[39] For example, all family members or derivative beneficiaries filing related adjustment of status applications should be listed as plaintiffs along with the principal applicant.
Some counsel have been successful joining multiple un-related adjustment of status plaintiffs in a single suit, claiming that the plaintiffs were connected to the same transaction or occurrence by virtue of filing the same I-485 application with the same agency, which resulted in the same type of harm and delay.[40] Yet, this tactic is not always successful. The plaintiffs seeking joinder must demonstrate a right to relief arising out of the same transaction or occurrence, and some questions of law or fact common to all persons seeking to be joined.[41] Based on this standard, AUSAs have filed motions to dismiss in mandamus cases, arguing improper joinder of parties.[42] Under the Federal Rules, if joinder is improper, all of the parties will be dropped from the suit, save the first named party.[43]
Given USCIS’ unwillingness to give special preference to mandamus plaintiffs, it is advisable to limit joinder to applicant plaintiffs who are related by family ties or connected in some way to the same application or petition. Otherwise, plaintiffs may be wasting their time fighting motions to dismiss only to be forced to file separate civil actions when they are dropped from the suit.
As far as the defendants are concerned, it is always better to err on the side of suing more officials. Defendants can always be dropped from the suit, but it may be difficult to amend a complaint to join additional defendants. For this reason, it is advisable to name the following officials when filing a mandamus and/or APA action challenging immigration adjudication delays: Secretary, Department of Homeland Security; Director, USCIS; Director of the Service Center where the application or petition is located; District Director of the local USCIS office with jurisdiction over the plaintiff. It is also advisable to name the Director of the FBI, since in most cases the delay is the result of a pending FBI “name check.” Naming the FBI Director will allow the AUSA to work with the FBI to resolve name check delays. In the event that the judge issues a ruling in the case, where the FBI is a defendant, the judge can order it to act within a certain period of time.
Some litigants also name the U.S. Attorney General in the complaint, but this may not be necessary, given the amendments to the INA by the Homeland Security Act of 2002, which vests the immigration function in the Secretary of Homeland Security.44 In any event, the officials named as defendants should be sued in their official capacity, which should be stated explicitly in the caption of the complaint.[45]
In the interests of rigor, some litigants name the agencies in the complaint as defendants as well, which is perfectly acceptable, but not necessary. The reason for naming the agency is that the agency official may change during the course of litigation. Technically, this is not a problem, as the Federal Rules provide for an automatic replacement of officials sued in their official capacity.[46]
