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Decisions on various immigration benefit applications – ranging from naturalizations to a whole host of visas – have become significantly delayed. A disproportionate number of these delayed decisions involve applicants from several Middle Eastern, South Asian and Muslim majority countries. The delay is partially caused by a policy called the Controlled Application Review and Resolution Program (CARRP) designed to conduct “extreme vetting” of Arab and Muslim immigrants. Applicants who have paid processing fees, and waited years for a decision, are now filing lawsuits against the federal government to compel a decision. This is proving successful in many cases. Here’s why.

First, a bit of background. The Department of State (DOS) regularly works with the Department of Homeland Security (DHS), within which resides the United States Citizenship and Immigration Services (USCIS), to conduct background and security investigations. In 2008, this alphabet soup of government agencies instituted CARRP to slow down immigration to the United States by Muslims, or people from predominantly Muslim countries, on the basis of security concerns. This includes countries such as Iraq, Iran, Yemen, India and Pakistan (among others).

CARRP is not well known or widely discussed. It is an internal policy, meaning it has not been approved by Congress or subjected to the usual and customary public notice and comment process. It was instituted and designed to investigate and adjudicate applications deemed to present potential “national security concerns.” CARRP prohibits USCIS field officers from approving an application with a potential “national security concern.” It directs government officers to deny applications or delay their adjudication—sometimes indefinitely, which is inconsistent with the Immigration and Nationality Act (INA). In effect, it takes authority on these cases away from USCIS and turns it over to the FBI. CARRP’s definition of “national security concern” is broader than the security-related ineligibility criteria for immigration applications Congress included in the INA. Instead, CARRP’s definition of “national security concerns” is so broad, and the policy casts such a wide net, that many innocent individuals who pose no security threat at all are caught in its delaying efforts. Seemingly innocuous activities such as sending money home or certain loose social media contacts can trigger being put on the CARRP list.

USCIS will neither confirm nor deny whether any applications have been subject to CARRP or a successor “extreme vetting program.” Based on information presented in a class action lawsuit brought by the American Civil Liberties Union (ACLU), it is believed that over ten thousand individuals are subjected to CARRP each year. A copy of the ACLU’s complaint can be viewed by clicking here. And CARRP is not alone, which the ACLU complaint makes clear by also referencing “similar ultra vires policy” or “successor ‘extreme vetting’ programs.” While the ACLU and the government litigate the terms, propriety and constitutionality of CARRP, tens of thousands of immigration applications are stuck in limbo, with no end in sight. Fortunately, there can be a way out.

To compel the government to decide an immigration application that has been unreasonably delayed (i.e., more than a year has passed without a decision), suing the federal government is sometimes the answer.

Several legal remedies such as the Writ of Mandamus, 28 USC § 1361, and the Administrative Procedure Act (APA), 5 U.S.C. § 555(b) & 706(1), provide applicants with the legal basis to do so. These laws enable applicants to sue the alphabet soup of immigration-related government agencies in order to compel them to decide a pending immigration application. And to add pressure to this request, applicants can also rely on the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, to seek their attorneys’ fees for having to sue the government in order to get them to decide an application for which they received thousands of dollars to process. These claims can also apply at the consular level – meaning that even if the application is pending at a foreign consulate, the obligation of the government to render a decision may still be compelled by a court.

While suing the government to compel a decision may sound daunting, it is a straightforward process. Besides identifying the legal basis for such a suit (see above), counsel will also need to blend the unique facts of the case with the law, explain the harm that the delay has caused, identify the appropriate government agencies and officials to name as defendants, and select the appropriate venue in which to file the suit. As the government is represented by Department of Justice lawyers, experience working with the U.S. Attorneys Office may help expedite the process, but it is certainly not required. In many instances, especially if the case is properly and persuasively presented, the government may even try to “moot” the case by having the application decided before the 60 days for the government to respond to the complaint expires. And because the applicant has indicated a willingness to sue the government, the decision may be a positive one because the government very likely prefers not to be sued again for arbitrarily denying the application.

While CARRP has caused additional nearly-endless delays for applicants from select countries, there is an effective remedy – sue the government and ask a Judge to compel them to do what they are obligated to do.