For Long Delays, Mandamus Works.
I’ve known this for years because we won one of the first visa-delay cases – ever. The year was 2005, 4 years after 9/11, which resulted in the creation of a new government security bureaucracy. This bureaucracy has grown exponentially over the years – with more and more agencies and personnel involved in the decision-making process, triggering more and more delays. The recent pandemic made the situation much, much worse – leading to colossal delays in adjudicating petitions and visas. As a result, the time has never been more ripe than now for the filing of mandamus lawsuits.
The last month alone provides testament. In a B-1 visitor visa case that had been pending under Section 221(g) for more than 5 years, we filed suit against the Department of State. Within 3 ½ months of the filing of the lawsuit, our client was issued a visa. In an I-829 EB-5 condition removal petition pending for nearly 5 years, USCIS approved the client’s petition within 30 days of the filing of the mandamus suit. In a Freedom of Information Act (FOIA) lawsuit based on the time limitations specified in the FOIA for processing requests (not mandamus), the Department of State turned over the materials that had been requested 2 years prior – within 2 months of the filing of the lawsuit.
While this is good news for our clients, the reality is, it is a sad state of affairs when you have to sue the government in order to get a decision on your application. You paid the processing fees; you answered all of the questions that were asked; you provided the documents requested. But for US government officials, it is easier to do nothing or to be overly cautious – to become entrapped by “paralysis by over-analysis.” “Let him file a lawsuit if he really wants a decision on his application,” becomes the mindset. And so, unfortunately, it takes the filing of the lawsuit to compel the government to do what it was supposed to do in the beginning.
Sometimes, one ally in our struggle is the Assistant US Attorney (AUSA) from the Department of Justice. The AUSA is tasked with defending these lawsuits. Because there has been a flood of these lawsuits, each government attorney may have more than 100 lawsuits to defend at one time. And so he or she is forced to prioritize – to identify which lawsuits are the easiest to dispose of by provoking a decision and which ones are worth defending in court. The AUSA has the ability of facilitating the “unsticking” of the delay: she or he contacts the government agency responsible for the delay; tells the official that a decision needs to be made, because if it isn’t, a judge will tell the official to make a decision. It is easier to make a decision on the application or petition then to risk the wrath of a judge and creating bad precedent.
In short, mandamus, the “unreasonable delay” prohibition in the Administrative Procedures Act, and the Freedom of Information Act time restrictions are invaluable legal tools in dealing with long delays. For FOIA cases, even delays of only a few months are appropriate for litigation. These mandamus, APA, and FOIA lawsuits are no longer the exception, but have become part of the “new normal” in 2023. Visa, I-829 condition removal petitions, and FOIA cases are just a few of the types of delay cases that may benefit from litigation. Naturalization, I-601 waiver applications, I-140 immigrant petitions, asylum applications, I-730 family reunification petitions, I-526 EB-5 investor petitions, and I-290B Motions to Reconsider – all may benefit by being proactive and filing a lawsuit.
But keep in mind that every case is different. Litigation may not always be the solution: there is no “one-size-fits-all” answer. Feel free to contact us if you are experiencing substantial delays with your visa application or other application or petition.