MANDAMUS AND OTHER DELAY LITIGATION WHY WHEN AND

MANDAMUS AND OTHER DELAY LITIGATION: WHY, WHEN, AND HOW TO BREAK THE BACKLOG AILA NEW YORK CHAPTER: FEBRUARY 3, 2020

AGENDA Intro and AILA Resources Mandamus Litigation Naturalization Delay Litigation FOIA Delay Litigation Other Delays and When NOT to Sue Q&A

WHAT IS DELAY LITIGATION? We can sue agencies (USCIS, DOS) in federal district court for unlawful denials of applications (after exhausting administrative remedies) We can also sue agencies in federal district court for delaying adjudication of applications in the first place Delay litigation forces the agency to make a decision or to produce information, not to guarantee a positive result.

BASES FOR LITIGATION Administrative Procedure Act Mandamus Act 8 U. S. C. § 1447 Freedom of Information Act Trafficking Victims Protection Reauthorization Act Others? ?

AILA MANDAMUS INITIATIVE

AMERICAN IMMIGRATION COUNCIL RESOURCES

AIC RESOURCES CONT.

THE ADMINISTRATIVE PROCEDURE ACT AND MANDAMUS CLAIMS

MANDAMUS VS. APA UNREASONABLE DELAY Mandamus is to compel an agency to APA provides a basis for requesting a perform an act that it has a duty to court to order an adjudication if the delay perform, generally, for extraordinary is “unreasonable”: delays: • Goal is to compel an adjudication, not a • Clear right of plaintiff to the requested specific result relief • Duty of government to adjudicate • No other adequate remedy available

THE MANDAMUS ACT q 28 U. S. C. §  361 – Action to compel an officer of the United States to perform his duty The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

APA PROVISIONS FOR UNREASONABLE DELAY q 5 U. S. C. §  55(b) A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. . With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. . ” q 5 U. S. C. §  706(1) To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall— (1) compel agency action unlawfully withheld or unreasonably delayed

WHEN IS MANDAMUS/APA COMPLAINT RECOMMENDED? Case is pending well beyond published processing times, especially if coupled with humanitarian factors Where the statutory or regulatory scheme is completely abrogated because of the delay (e. g. F-1 change of status to H-1 B where the F-1 loses cap gap employment on September 30) Can you bring a claim even when the case is within processing times?

MANDAMUS/APA DELAY CASES: GENERAL ISSUES Preliminary steps Arguments and contents of complaint Contacting the government and communicating pre and post-filing Possible outcomes

TAKEAWAYS Litigation has become a necessary tool in today’s environment Creative solutions can make internal discussions about supporting litigation easier Litigation may be the only way to resolve some delayed cases and denials Litigation is the best way to limit harmful policy changes

CLIENT COMMUNICATION AND EXPECTATIONS Fear of Retaliation: Most litigators report no evidence whatsoever that USCIS: o Has retaliated against employers or individuals who file suit o Has the desire, will, or resources to retaliate Costs: o Fee arrangements/success fees o EAJA o Multiple plaintiffs with the same issue can drive the price down Publicity: Client information in court filings can be kept confidential Time: A good case can be settled faster than an AAO appeal

NATURALIZATION DELAYS

“If there is a failure to make a determination under section 1446 of this title before the end of the 120 -day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter. ” 8 U. S. C. § 1447(B)

FILING A NATZ DELAY CASE Must have had “examination” - the interview. Case delayed without interview will fall under mandamus/APA However, can file 1447(b) case IMMEDIATELY after 120 -day period. Unlike mandamus, court can decide the case (or remand). No required element of showing unreasonable delay, processing times, prejudice, or exhaustion (But you still might want to, to look prudent/diligent)

PRACTICAL CONSIDERATIONS Making USCIS or other inquiries makes a good record Explain why client is clearly eligible and delay is causing hardship if possible – audience is not just judge, but the AUSA or agency counsel who may settle this quickly Reach out to government pre-filing or immediately after filing If client is deportable, consider whether escalating case could result in NTA – would they have relief? National security/CARRP cases – may need special care

JURISDICTION In the Second Circuit, USCIS loses jurisdiction over the N-400 once you actually file under 1447(b). Bustamante v. Napolitano, (582 F. 3 d 403) USCIS can grant your case pre-filing, or you can negotiate withdrawing the suit or a joint remand to USCIS for a positive resolution of the case. Compare with a denial lawsuit under § 1421(c) – USCIS denies case, you take admin appeal, and then get de novo district court review.

FOIA DELAYS

FOIA STATUTE, 5 U. S. CODE §  52(6)(A) q Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall— (i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of (I) such determination and the reasons therefor; (II) the right of such person to seek assistance from the FOIA Public Liaison of the agency; and The 20 -day period under clause (i) shall commence on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests under this section. The 20 -day period shall not be tolled by the agency except— (I) that the agency make one request to the requester for information and toll the 20 -day period while it is awaiting such information that it has reasonably requested from the requester under this section; or (II) if necessary to clarify with the requester issues regarding fee assessment. In either case, the agency’s receipt of the requester’s response to the agency’s request for information or clarification ends the tolling period.

LITIGATION DELAYS FOR FOIA REQUESTS If requester is in removal proceeding, accelerated track treatment may be requested with the request. Litigation Ripe: 30 business days after Agency receipt o Agency has 20 business days to decide whether to comply with the FOIA request, §  52(6)(A) o In "unusual" circumstances, agency may extend deadline by up to 10 business days, §  52(6)(B)(1) Exhaustion: Should the agency fail to respond to requests within the statutory time frames, the requester will be deemed to have “constructively” exhausted administrative remedies and can request for judicial review Jurisdiction: District Court after request is deemed exhausted and denied Venue: District (a) where Plaintiff resides or has their principal place of business; or (b) where agency records are situated, or (c) the District of Colombia, § 552(a)(4)(B). Retaliation or adjournment concerns?

FOIA DELAYS COMPLAINT: POTENTIAL CAUSES OF ACTION Violation of the Freedom of Information Act, 5 U. S. C. § 552(a)(6)(A)(i) and (B): Failure to Respond within Time Required Violation of the Freedom of Information Act, 5 U. S. C. § 552(a)(3)(A): Failure to Conduct an Adequate Search for Responsive Records Violation of the Freedom of Information Act, 5 U. S. C. § 552(a)(3)(C): Failure to Disclose Responsive Records

CLASS ACTION: NIGHTINGALE V. USCIS (N. D. CA. 2019) "U. S. Citizenship and Immigration Services. . . or U. S. Immigration and Customs Enforcement. . . have failed to make determinations within the statutory timeframe mandated by the FOIA statute. 5 U. S. C. § 552(a)(6)(A), (B). Instead, Plaintiffs and the classes of similarly situated FOIA requesters they seek to represent must wait for prolonged periods—generally months—before receiving complete A-Files. " "Issue a nationwide injunction requiring Defendants to make determinations on A-File FOIA requests and referrals that have been pending for more than 30 business days with USCIS and/or ICE, within 60 business days of the Court’s order or as the Court deems appropriate [and] Order USCIS and ICE to make determinations on A-File FOIA requests and referrals of members of the proposed classes as mandated by 5 U. S. C. § 552(a)(6)(A)(i); " "USCIS Class: All individuals who filed, or will file, A-File FOIA requests with USCIS which have been pending, or will be pending, with USCIS for more than 30 business days without a determination. " "ICE Referral Class: All individuals who filed, or will file, A-File FOIA requests with USCIS that USCIS has referred, or will refer, to ICE and which have been pending, or will be pending, for more than 30 business days from the date of the initial filing with USCIS without a determination. "

OTHER DELAYS AND CONSIDERATIONS

SPECIAL IMMIGRANT JUVENILE STATUS DELAYS q 8 U. S. C. 1232 (d)(2); Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110 -457, 122 Stat. 5044 (2008), § 235(d)(2). Expeditious adjudication. All applications for special immigrant status under section 101(a)(27)(J) of the Immigration and Nationality Act (8 U. S. C. 1101(a)(27)(J)) shall be adjudicated by the Secretary of Homeland Security not later than 180 days after the date on which the application is filed. q USCIS Policy Manual, 6 -USCIS-PM J. 4. B The 180 -day timeframe begins on the. . . receipt date. If the petitioner has not submitted sufficient evidence to establish his or her eligibility for SIJ classification, the clock stops the day USCIS sends [an RFE] and resumes the day USCIS receives the requested evidence from the petitioner. 8 C. F. R. 103. 2(b)(10). The 180 -day timeframe applies only to the initial adjudication of the SIJ petition [and] does not extend to the adjudication of any motion or appeal. .

EVALUATING MANDAMUS AS A STRATEGY Counseling clients on potential benefits & drawbacks Non-exhaustive factors to weigh q How clearly approvable is this petition? q Can you tolerate risk of denial? Effects in affirmative or defensive posture. q What is the value of approval – now? Is a visa number available? q What is normal/mandatory processing time? q Have you documented advocacy for • Adjudication trends, role of discretion • Memos on RFE/NOID (July 2018), Nt. A (June 2018); effect on continuance requests • Ancillary benefits? See Osorio-Martinez v. US, 893 F. 3 d 153 (3 d Cir. 2018) on SIJS • Interplay of delay and other factors • Adjudicators, CIS Ombudsman,

QUESTIONS AND ANSWERS GOOD LUCK LITIGATING!