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Challenging AOS Delays in Federal Court

by Carl Shusterman

We have received dozens of questions from persons whose applications for adjustment of status (and naturalization) have been stalled because the FBI has not completed security checks on their cases.

Interestingly, most of these questions come from people born in India, China, Europe and South America. Does the FBI seriously believe these would-be immigrants are potential terrorists? Probably not. More likely, they either have common names which have stalled their name checks or the FBI simply has not gotten around to performing name checks in their cases.

Many of these persons, or their attorneys, have made multiple inquiries with the CIS about their pending cases. However, CIS considers this an FBI problem, and the FBI does not have a public inquiry system.

So, is there a remedy for such applicants?

Yes. They can ask a Federal Judge to issue a Writ of Mandamus to compel the government to take action on their applications. Our law firm frequently appears in Federal Courts across the U.S. in delayed Adjustment of Status or Naturalization Cases.

In the past, Assistant U.S. Attorneys (AUSAs) have been very cooperative in getting the FBI and the CIS to perform name checks and adjudicate applications for adjustment of status. More recently, the Justice Department has instructed the AUSAs to challenge the right of immigrants to bring Mandamus actions in Federal Court on the ground that since the CIS may deny applications for adjustment of status on discretionary grounds, the Federal Courts lack jurisdiction over such cases. This argument is clearly fallacious since Mandamus suits do ask Federal Judges to order the CIS to grant pending applications for adjustment of status, only to order the agency to take action on long-delayed cases. The CIS has a duty to make a decision on an application for adjustment of status within a reasonable time. This is not a discretionary matter.

The government, when faced with a Mandamus action, now responds with a Motion to Dismiss, arguing lack of jurisdiction, attaching form affidavits from both the FBI and the CIS, and invoking the need for increased security in a post 9-11 environment.

However, we believe that this is simply a smokescreen aimed at discouraging immigrants and their attorneys from submitting requests for Writs of Mandamus.

Why do we say this? First, since the applicant is permitted to reside and work in the U.S. and travel in and out of the country during the pendency of his application for adjustment of status, the longer the government takes to investigate a security risk increases the danger to the United States and its citizens. If the government has damaging information about the applicant, all the more reason to perform the required name checks expeditiously. Secondly, whenever the government losses this argument in Federal District Court, one would think that they would immediately appeal the Federal Judge's holding to the Federal Appeals Court. We have yet to see the government do so in any of the Mandamus cases that we have brought. We intend to keep bringing Mandamus and 120-Day Naturalization cases in Federal Court, and to keep you informed as to the results of these cases.

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.