This posting is by David L. Cleveland, a staff attorney at Catholic Charities in Washington, DC. David was Chair of the AILA Asylum Committee from 2004 to 2005, and has secured asylum or Withholding of Removal for people from 47 countries. A graduate of the University of Rochester and Case Western Reserve University School of Law, he has published articles about asylum in Bender’s Immigration Bulletin, ILW.com, AILA, and Lexis-Nexis.
When I was in high school, I liked music by a British group called “The Kinks.” One of their songs was “Tired of Waiting.” It goes: “Tired of waiting, Tired of waiting for you, So tired….”
Now, I am an immigration lawyer. I file cases. I wait. I get tired from time to time. My clients, of course, suffer more than me. They are really tired of waiting.
What can be done about this?
First, I try to determine if the application is, or is not, in the hands of a real human being. There are cases that “slip through the cracks.” Supervisors at USCIS have told me–more than once–that at times, cases get “lost.” For example, an asylum case file is assigned to Officer “A” in January 2015. His boss tells him to make a decision. But, six months later, Officer A quits his job. His boss realizes that the case should be assigned to a new officer, but it doesn’t happen. The case is not re-assigned. It sits in a box in the asylum office, but no officer is assigned to it.
In such a case, the applicant can make an inquiry at the asylum office, and ask, “What is the name of the officer assigned to my case?” The applicant can ask at the asylum office reception window, “Where is my case? In whose office is it?” If the case has not been assigned, the applicant’s inquiry might cause it to be assigned. The applicant can also email the Asylum Office, but sometimes, it is more effective to go in person.
Second, the applicant can try to force the Asylum Office to make a decision by filing a complaint in the local U.S. District Court. The theory of the case is simple:
(1) Congress enacted a law–the Administrative Procedures Act–that provides that a federal court “may” compel an agency to act in a case if it is “unreasonably delayed.”
(2) The applicant filed–for example–an asylum application with the USCIS more than three years ago, and there has been no action on the application.
(3) A three-year delay is “unreasonable.”
Therefore: Judge, make the agency do something! Make them adjudicate the case!
Is a three-year delay unreasonable?
Many judges have said “No, a three-year delay is not unreasonable. Applicant loses.”
In fact, applicants waiting more than three years have been denied relief: A judge in Missouri denied relief to an applicant who had been waiting six years. A California judge agreed: Six years is not unreasonable. A judge in New York denied relief in a case involving a five-year delay. A DC judge agreed that five years was not unreasonable.
But, another DC judge said 2.75 years was too slow. SAI v. Dep’t of Homeland Security, 149 F. Supp.3d 99, 121 (D.D.C. 2015) (airport patron who alleged harassment at airport filed an administrative complaint).
In another case, Haus v. Nielsen, 2018 WL 1035870 (N.D. Illinois 2018), the government filed a motion to dismiss, arguing that a three-year delay was reasonable. The Judge denied the motion, stating that he was not “prepared to hold” that a three-year delay was reasonable. He did not say it was unreasonable, either. This case illustrates the confusion and difficulty judges have with these kinds of cases.
What happens after a complaint is filed in federal court?
A copy of the complaint is delivered to the agency (in an asylum case, the agency is USCIS). The agency then gives the complaint to its lawyer; very often, this is a lawyer at the Department of Justice (“DOJ”). The Judge sets a deadline for the agency to file a response with the court–often 60 days after the complaint was filed.
The DOJ lawyer could file a motion to dismiss the case, citing precedent that holds a six-year delay is reasonable.
Or, the DOJ lawyer could telephone the agency, and ask, “Why haven’t you made a decision on this case? Why don’t you make a decision soon? If you do, then I do not need to file a motion with the Court.” Such phone calls, at times, result in agency action.
I am aware of three recent cases in the Washington, DC area: (1) In January 2017, an asylum applicant filed a complaint in court. He was granted asylum in March; (2) In June 2017, an asylum applicant filed a complaint. USCIS interviewed the applicant a second time, and then denied asylum in September; (3) In June 2018, the applicant filed a complaint. He was granted asylum in July. In these three cases, the agency did not file a motion to dismiss. Instead, the agency did what the applicant wanted by adjudicating the case (even if the result was not always what the applicant had hoped for).
Each case is different. Many applicants who file complaints lose. But some win. If you would like more information, contact me at David.Cleveland@cc-dc.org.