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from http://www.visalaw.com/99feb/11feb99.html
LAWSUITS AGAINST THE INS LATEST TOOL IN RESOLVING PROBLEM CASES
While the INS is claiming to be putting customer service first, immigration lawyers and immigrants who have been observing the operations of the agency over the past several years all seem to have reached a similar conclusion - service is worse than ever and it is not unusual for cases to drag on for years without INS action. In the past, these problem cases were resolved by immigration lawyers simply by contacting the INS to alert them to the problem. If that did not work, working through the American Immigration Lawyers Association would help. And then perhaps a Congressmen could offer assistance.
Recently, however, the old civil methods of trying to get INS to do their job don't seem to be working very often and immigration lawyers are left with the one option that as lawyers they know best - suing the agency. Immigration lawyers can file mandamus actions to compel an officer or employee of a the United States to perform a duty owed to a plaintiff. Failure to comply with the court order can lead to an INS officer being held in contempt of court. The American Immigration Lawyers Association is actively encouraging its members to utilize this tool and is providing extensive guidance materials to make the job easier.
Recently, for example, our firm, Siskind, Susser, Haas & Devine, successfully used a mandamus complaint to get the INS Texas Service Center to adjudicate an old I-485 adjustment of status case. The plaintiff in this case was a research scientist who was the beneficiary of a National Interest Waiver. The application for adjustment of status had been pending about 20 months and repeated fax and phone inquiries went unanswered. The AILA liaison was not able to help on the matter either. Rather than give up, we drafted a lawsuit and sent it to the local office of the US Attorney attached to a letter indicating that we would file the suit to compel the INS to act on the case unless we received a satisfactory response. Within a day, we received a call from the US Attorney asking us for two weeks to resolve the matter. And within a few days, we had gotten a call from the INS asking us to send our client for new fingerprints (the old ones had already expired). We have been assured that as soon as the prints clear the FBI, the case will be completed. Of course, we have heard this before. But the threat of a lawsuit means that the INS will likely not ignore the case again.
This case illustrates a basic principal. Merely threatening a lawsuit can force the INS to act on a case. One expert we conferred with who has filed numerous mandamus actions over the years reports that the INS will act to resolve a case nearly half the time just on the basis of a threatened lawsuit. The rest of the time one should be prepared to go to court. The good news is that even if one has to go to court, the INS often has only weak arguments to defend itself.
Immigration applicants can rely on 28 USC 1361, the Mandamus Act. The Act is simple and states that district courts have original jurisdiction of any action in the nature of mandamus to compel an officer of employee of the United States or any agency thereof to perform a duty owed to the plaintiff. Mandamus actions, by the way, are different than injunctions. Mandamus actions are used to force someone to do something. Injunctions are used to prevent an action.
While mandamus actions are not useful in every case, they are appropriate where a plaintiff's claim is clear and certain and the duty of an INS officer is ministerial and so clear as to be free from doubt. The best cases will be those where the plaintiff's case has been pending much longer than normal.
The American Immigration Lawyers Association has recently added a wealth of materials on mandamus actions on its members-only Infonet web site at http://www.aila.org. The AILA Mandamus "kit" contains a useful how-to guide as well as several sample mandamus briefs.