When Your Case Is Stuck at Immigration

It is often said that our immigration system is broken. This is accurate in many respects, whether it is a refusal to grant status to millions of children who were brought here by their parents at a young age and now find themselves belonging to no country as adults, or the failure to timely adjudicate visa applications and petitions for those who qualify for relief.

Take one example: A U.S. citizen files a visa petition for his wife who entered the U.S. without a visa several years ago. The couple has three U.S. citizen children, ages 8, 5, and 3. Because of the unlawful entry of the wife, she does not qualify to process her immigration in the U.S. Unfortunately, this family did not seek legal assistance, so it was unaware of the penalty that attaches when such a person leaves the U.S. When the time came for the immigrant visa process, it had to be with the U.S. Consulate in Mexico. The wife dutifully went to the appointment, only to learn that she is inadmissible to the U.S. for 10 years. This is a penalty for unlawful presence enshrined in the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. The Consulate told the wife that she may file a waiver of inadmissibility; this requires a showing of "extreme hardship" to the U.S. citizen spouse.

The husband could not care for the three children so he took them to Mexico to be with their mother. He filed the application for waiver which was denied. He then filed an appeal, all without legal counsel. He continued to wait for a decision, but the long delay in adjudication caused him to become so despondent that he suffered a severe nervous breakdown, requiring hospitalization. He also developed heart problems, high blood pressure and asthma.

It was at the point that a family member finally turned to an attorney. The attorney updated the appeal with the medical information, but after two years, the appeal remains pending.

A Compelling Case for Action

This story is not an exception, but it is exceptional. Justice has been slow and absent, allowing humanitarian conditions to deteriorate, perhaps irreversibly.

Immigration law does not define what is "extreme hardship." The Board of Immigration Appeals (BIA) and some courts have held that "mere" separation of family and financial difficulties do not constitute extreme hardship because it is what everyone suffers. This view is in total disregard of the sanctity of the marital relationship and importance of family unity. The example of this article has severe issues of health, both physical and psychological. The dire facts call out for action. Something must be done.

What Is the Solution?

Federal courts have the authority to issue equitable relief. In this case a request for a mandatory injunction based on unreasonable delay would be appropriate. An aggrieved party may ask the court for a mandamus, to intervene by ordering the Citizenship and Immigration Services (CIS) to act -- that is, make a decision on the pending appeal. Suing in federal court is the best way to dislodge an overdue case.


Advantages to Suing

When you sue the federal government, it has 60 days to answer the complaint. Almost immediately, the U.S. Attorney, who must defend the case, asks the CIS for the file so that (s)he may review it and explain to the judge the government's side of the story. This already puts you ahead of the game because the case will be dislodged from its location. The government attorney will examine the file, knowing that there is a deadline for filing an answer with the court.

Suing in federal court takes the case away, even if temporarily, from the CIS. This is important because you will have an independent adjudicator, outside the CIS, examining the facts and the applicable law. Additionally, in federal court, you can control the speed of the case by filing certain motions for the judge to consider. It is unlikely that your case will linger without some resolution.

When a case has compelling facts backed by favorable law, the U.S. attorney typically calls your attorney to discuss the possibility of settlement. Simply stated, when the government has a weak defense, it will try and settle because it wants to keep horrid or embarrassing details away from the judge. I have experienced such conversations more than once. If the offer from the government is not satisfactory or adequate, it does not have to be accepted, and the case may proceed to the judge.

Finally, if you win the lawsuit, there is a possibility of collecting attorney fees pursuant to the Equal Access to Justice Act. This is beneficial to both the client and the attorney.

If the facts of the case are ripe and the law is on your side, take advantage of it. Ask for relief in federal court.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.