By Johnson Lazaro, Attorney At Law
Ever get tired of waiting for the Immigration Service to grant you that green card that you deserve? You paid so much money for fees and costs and the Immigration Service (USCIS) still makes you wait and wait and wait. One person got so sick and tired of waiting that he sued the government and won.
On July 2, 2008 the Federal District Court in California ordered the USCIS to pay Mr. Asghar Shirmohamadali, around $25,500 in attorney fees and $1,000 in other costs incurred during the suit. In addition, the Court had previously ordered the USCIS to adjudicate Shirmohamadali’s pending “green card” case within 30 days. He has been waiting for four years for the government to work on his case. During the hearing, the government tried to justify the long wait by stating that it needed to complete the FBI name check system. However the Court did not buy this argument and made the USCIS pay. The Court found that the USCIS did not make sufficient effort to expedite the case.
The government’s failure to adjudicate an immigration application in a timely manner should be challenged. It is simply unfair for anyone to have to wait an enormously long time for Immigration to do its job. No one should have to wait longer than necessary.
This recent victory by an immigrant plaintiff serves notice to the government that it shouldn’t just sit on the applications. People’s futures are on the line. Things happen and lives change. For some, waiting for four years for the government to act is simply unacceptable.
The lesson here is that you can fight and you can win. You can take the Immigration Service to court and make it defend. Immigration’s budget has greatly increased over the past few years. It has increased filing fees by 80%. It has stated publicly that it is hiring more employees to streamline the application process. Immigrants who must move on with their lives should not have to wait years just to have their applications reviewed.
Challenging the government is not easy. Plaintiff must prove that (1) she or he has a clear right to the relief (adjudication) requested; (2) the government agency has a clear duty to perform the act in question; and (3) and there is no other relief available. Litigation against the government can be expensive and this is why many immigrants choose not to do it. There are only a handful of lawyers who have the expertise in these types of cases. And if you decide to challenge the Immigration Service, do so carefully and proceed with caution.
A few years ago, agents of the Immigration Service sent a deportation notice to an immigrant. He was ordered to pack up his things and leave the US immediately. A deportation order has serious consequences. One can be banned from entering the US for at least ten years if deported. However upon closer examination of his case we discovered that the Immigration Service had committed an error. The agents had misinterpreted the order of the court. Our office immediately filed a lawsuit in the Federal District Court in San Francisco to get a stay of deportation. Two days after the filing, an attorney for the government called our office to try and settle the case. Our client was allowed to voluntarily leave without deportation. He is now back in the US with his family.
The law is clear. Once an applicant has been examined, the Immigration Service must make a decision on the case. Sometimes the Immigration Service will come up with creative arguments as to why it has not adjudicated the case that’s been pending for several years. For instance, sometimes attorneys for the Service would argue that the background checks have not been completed or the investigation is still ongoing, or the applicant needs to be scheduled for another interview. If they are challenged in court, they would need to present convincing evidence that they have a legitimate reason to delay the case. And then of course there is the old “finger pointing routine.” The other department is still doing some checks or the FBI has not completed its investigation. This argument can also be challenged on court. The agents handling your case can be cross examined in front of a District Court judge. The truth will come out and if immigration is wrong, it will pay.