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Suing the federal government to compel a decision on a long-delayed immigration application is sometimes necessary. This is especially true after paying expensive application fees, engaging in a futile multi-year campaign to get someone to decide the pending application, and keeping your client’s life on hold in the interim. Determining which government agencies to sue, where to file the case and a host of other issues are all important steps in this process. But perhaps the most critical is presenting the claim in such a way that causes the government to issue a decision promptly.
This all comes down to preparing the substance of the complaint. And it’s where litigators can really show their value. A poor complaint can invite dismissal, dueling summary judgment motions and possible discovery disputes. On the other hand, a complaint that persuasively applies sympathetic facts to applicable legal claims, can cause the government to issue a decision before a response to the complaint is due. No one likes to fight a losing battle. The trick is to make the case so compelling that the government is almost certain to lose and suffer some consequences for putting up a fight.
This is an achievable result. And it can be summarized into a three step framework.
First, counsel need to identify the correct legal basis, claims or causes of action. In these types of situations, there are generally three: (1) the Writ of Mandamus, 28 USC § 1361; (2) the Administrative Procedure Act (APA), 5 U.S.C. § 555(b) & 706(1); and, (3) Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.
Second, counsel needs to merge the facts into the claims. For example, a Mandamus action requires three elements: (1) a clear right to get a decision (which the Immigration and Nationality Act (INA) provides in connection with a variety of immigration benefits); (2) a clear duty to make a decision (which is supported by the fact that the government accepted a fee to perform an act and should do so within a reasonable or statutorily-fixed amount of time); and, (3) no other adequate remedy (which is supported by counsel’s letter writing campaign to get a decision). While some immigration benefits require an exhaustion of efforts before seeking mandamus relief, some failures to exhaust may be excused through various exemptions to exhaustion. Some research will be required.
The elements to an APA claim are similar, and both it and a Mandamus claim require compelling equitable grounds, which means counsel needs to flesh out each element and the real-world consequences the applicant has had endure as a result of the delay. These grounds are known as the TRAC factors, named after the case that established them: Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984). The six non-exhaustive and admittedly vague factors include (among others) the propriety, nature and consequences of the delay. It is fertile ground for a good advocate to make the case for why a decision has been unlawfully delayed and warrants judicial compulsion. And while doing so can sometimes make a complaint sound argumentative or read like a brief, it can also make clear that the government has no basis to avoid making a decision.
Third, and finally, the complaint needs to provide the government with some encouragement. This is where EAJA comes in and provides a plaintiff with attorneys’ fees and costs (albeit at reduced rates) in any successful suit against the government. This fee-shifting threat can motivate the government to try and moot the case by having the application decided before the judge renders a decision on the merits of the case.
Needless to say, this is just an overview of the legal claims and relevant facts. In addition to these, the complaint will also need to include several other items such as the basis for the court’s jurisdiction, the identities of the parties, the requested relief, etc. But those can all be easily found in templates and similar prior filings. (Rarely are pleadings made from scratch.) The key point, however, is to make the case as ironclad as possible. While this is a case-by-case exercise, and must be tailored to each unique situation, it is also completely within the abilities of a good lawyer armed with a basic understanding of how to make the case.