When all other options have failed, it may be necessary to file a federal lawsuit against USCIS, ICE, or other immigration agencies. Federal immigration litigation most often focuses on the government’s unreasonable denial of a petition, or the government’s unreasonable delay in adjudicating a case or executing an immigration detainee’s deportation order.
The Administrative Procedures Act (APA) permits a federal judge to review certain decisions made by executive branch agencies, including immigration agencies such as USCIS. To prevail, it must be shown that the agency decision was “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law.” An APA suit is generally the action of choice for an unreasonable denial of an employment-based immigration petition.
HABEAS CORPUS PETITIONS
There are legal limitations on how long the government can detain somebody in immigration custody. For example, foreign nationals who are awaiting execution of their deportation orders in detention can sue the government for release after six months of post-deportation order detention if there is good reason to believe that there is no significant likelihood of deportation in the reasonably foreseeable future. A petition for a writ of habeas corpus under the Supreme Court’s Zadvydas decision is generally the federal action of choice under these circumstances.
If the government has unreasonably delayed issuing a decision in a case in which it has a legal duty to make a decision, a petition for writ of mandamus can help move the case forward. Mandamus actions are frequently used to dislodge petitions which have been pending for years with USCIS.