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Immigrants Take to Court in Record Numbers as Backlogs Pile Up

July 19, 2022, 9:30 AM

Visa applicants facing protracted wait times for benefits like work permits and travel authorization are increasingly turning to the courts for solutions.

The number of immigration-related lawsuits over administrative delays, filed as writs of mandamus, has spiked in the past two years. Plaintiffs are projected to file more than 6,200 such cases by the end of this fiscal year, according to the Transactional Records Access Clearinghouse.

That’s nearly three times the number of cases filed just two years ago, according to TRAC data, which dates back to October 2007. Those administrative delay lawsuits were rarely filed in immigration cases before fiscal 2019, when they began to steadily increase.

Writs of mandamus are filed to compel a federal agency to fulfill its administrative duties under the law. The cases don’t ask courts to order a specific outcome, but rather an agency decision on an application one way or another.

Immigration attorneys say the increase in filings reflects the growing wait times applicants face at US Citizenship and Immigration Services, in addition to poor customer service at the agency. These lawsuits are the last resort for immigrants who have waited months or years for an application to be processed, and have exhausted other options, said Michael Piston, a senior attorney at the Immigration Law Office of Los Angeles PC.

“That’s why we file mandamus actions—because there’s simply no other alternative,” he said.

Increasingly Common Option

Delays securing employment-based green cards and the benefits associated with an application, such as work authorization and the ability to travel internationally, have ballooned in recent years, said Carl Hampe, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP.

“It started with the Trump Administration, but persists today,” Hampe said. “This is causing significant personal and professional disruption to our firm’s clients, and mandamus litigation is an increasingly common option to remedy these problems.”

The American Immigration Lawyers Association, made up of some 15,000 attorneys, has also encouraged members to bring mandamus actions when their clients encounter excessive delays. The organization additionally has pressed USCIS to adopt policy recommendations to improve customer service.

“You have to jump through lots of hoops to get anyone to help you,” said Shev Dalal-Dheini, director of government relations at AILA.

The mandamus option is attractive in part because government attorneys prefer to settle litigation over processing delays rather than fighting it in court. That could change, though, thanks to the spike in mandamus actions, said Brad Banias, an immigration attorney at Banias Law LLC and former attorney at the Department of Justice’s Office of Immigration Litigation.

“I do think now with the increase, they do have an interest in pushing back a little more to try to disincentivize delay cases,” he said.

USCIS Response

The increase in delay-related litigation is “one of a multitude of factors” that USCIS has considered in its efforts to reduce backlogs, Matt Bourke, a spokesman for the agency, said in a statement.

This year the agency has increased the automatic extension period for applicants renewing work authorization documents, set new agency-wide backlog reduction goals, and expanded fast-track processing options, Bourke said.

USCIS rolled out the second phase of expanded premium processing this month. The agency has also prioritized hiring to reduce backlogs—there were roughly 4,000 vacancies at the agency this year.

“USCIS will continue to promote policies that restore confidence in the immigration system; increase access to eligible immigration benefits for which noncitizens are eligible; and break down barriers in the immigration system,” Bourke said.

But steps to address wait times need to be paired with more responsiveness to applicants facing challenges with their cases, said Dalal-Dheini.

“It’s not to anyone’s benefit to have to sue because the agency’s resources are being taken away to fight all of these lawsuits rather than adjudicating cases,” she said. “But if they don’t have a mechanism for people to do something other than file lawsuits, it’s going to continue to happen.”

To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bgov.com

To contact the editors responsible for this story: Genevieve Douglas at gdouglas@bloomberglaw.com; Laura D. Francis at lfrancis@bloomberglaw.com