ILW.COM - the immigration portal Immigration Daily

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Court Orders USCIS To Pay Alien's Attorney Fee

by Jian Joe Zhou, Esq.

On July 2, 2008, a US Federal District Court in California entered an order requiring that the USCIS pay Mr. Asghar Shirmohamadali, the plaintiff in a Writ of Mandamus (WOM) law suit against the USCIS, around $25,500 in attorney fees and $1,000 in other costs incurred during the suit. In addition, the Court had previously ordered the USCIS to adjudicate Shirmohamadali's pending I-485 case within 30 days.

The I-485 Adjustment of Status application is the last step in permanent residency processing for aliens in the U.S. To be qualified for the approval of an adjustment of status, an individual must be a beneficiary of an approved immigration qualification process. The I-485 process allows the USCIS an opportunity to check the applicant alien's background to determine the alien's admissibility to be of a permanent residency. Because of the extensive nature of the I-485 process, it often takes months or years for the USCIS to adjudicate an individual case.

A lot of applicants with pending I-485s feel powerless when facing the prolonged delays of USCIS processing. This is especially true in the post-9-11 era as the US Government steadily increases its war against terrorism. Often, the USCIS cites delays caused by the FBI name check system and national security priority as convenient justifications for USCIS inaction on a pending I-485 case. This can lead to extended delays and little sense of reassurance for I-485 applicants.

Fortunately however, in a country dedicated to the rule of law like the United States, administrative agencies such as the USCIS are not privileged with ultimate discretion. The three-branch government structure mandates that the decisions and behavior of the administrative branch are subject to checks and balances by the legislative and judiciary branches. In the case of administrative inaction or delay, the Writ of Mandamus (WOM) law suit procedure allows an individual or organization seeking an administration decision to bring the administrative agency to court. In order to win a WOM suit, the plaintiff must prove that (1) she or he has a clear right to the relief (adjudication) requested; (2) the government agency has a clear duty to perform the act in question; and (3) and there is no other relief available.

After waiting four years for USCIS to adjudicate his I-485 case, Mr. Asghar Shirmohamadali brought a WOM lawsuit against the USCIS in a U.S. federal court. The court found that all three requirements for a WOM had been met and ordered the USCIS to adjudicate Shirmohamadali's case within 30 days. Please note, a WOM suit cannot ask that the court adjudicate a pending I-485 case; rather, it is a suit requesting the court to take action to force the USCIS to adjudicate the case and fulfill its administrative duties as required by law.

In Shirmohamadali's WOM lawsuit, the USCIS contended that, among other reasons, the delay was caused by the FBI's workload and complete discretion in name check procedure. However, the court disagreed and found that the USCIS had produced no evidence to prove that higher priorities necessitated a delay of over four years and that the USCIS failed to make any efforts to expedite Shirmohamadali's I-485 case.

While wining the WOM suit serves as a great relief for Shirmohamadali, success came with a costly price tag: he had spent a total of close to $50,000 in attorney fees and other costs. However, Shirmohamadali and his attorney soon found that the Equal Access to Justice Act (EAJA) could potentially allow Shirmohamadali to recover the costs of his WOM suit from the defendant. The EAJA requests that a court award to a prevailing party the reasonable attorney fees and other expenses incurred by that party in any civil action brought by or against US Federal government agencies. However, the law limits that the attorney fees shall be "based upon prevailing market rates for the kind and quality of the services furnished but shall not be awarded in excess of $125 per hour," unless the court finds that an increase in the cost of living or a special factor, or attorney's special expertise for the proceedings involved, justifies a higher fee.

In Shirmohamadali's WOM law suit, his attorney charged $300 per hour and worked more than 150 hours on the case. The attorney argued for a full recovery of attorney fees based on several factors: (1) the attorney's expertise in immigration law; (2) an increase in the cost of living; and (3) similar rates for attorneys of comparable expertise. The court agreed with the argument based on increase of cost of living and used a price index formula and determined that an hourly rate of around $170. On the other hand, the court disagreed with the argument of adjustment based on the attorney's expertise and found that the comparable rate argument had no separate legal basis. In addition to attorney fees, the court awarded Shirmohamadali around $1,000 for all other costs.

Shirmohamadali's victories in these two cases against the USCIS are significant. They not only brought immediate benefits for Shirmohamadali since he received the adjudication of his I-485 within 30 days and partial recovery of his WOM attorney fees, but they also serve as a significant influence in the push for improved service from the USCIS. These cases placed tremendous political pressure on the USCIS, and the loss of both suits may hurt the agency and cast doubt on individual officers' discretionary decisions. While no single officer was required to pay any money for the two litigations, as it paid out of government budget, the lawsuits may raise questions about some officers' discretionary decisions. In addition, the USCIS spent valuable resources of both time and money during the lawsuit that may strain their operational budget. Additionally, Shirmohamadali's cases establish a new legal precedent for alien's to bring WOM cases against USCIS. This precedent opens the doors for additional cases against the USCIS and adds further pressures on the USCIS to increase the speed of I-485 processing.

In fact, in spring 2008, the USCIS announced new guidelines for its name check system: USCIS will proceed and approve adjustment cases when the name check cannot be completed within a given time period if all requirements except the name check have been met. With the improved processing time for FBI name check and USCIS' commitment to process the backlogged I-485 cases, it is our hope that the need to file WOM be reduced in the near future. WOM process certainly involves the waste of costs for the I-485 applicant as well as the Federal Government.

These victories deserve further recognition because of the heavy personal cost and risk taken on by Shirmohamadali during the process. Even with the successful recovery of additional costs and partial attorney fees, the costs to Shirmohamadali include around $20,000 in attorney fees for the WOM suit, and all attorney fees for the motion covering the WOM attorney fee claim. In addition, Shirmohamadali took a great risk as even with a good case, a lawsuit like Shirmohamadali's involves substantial amounts of uncertainty; the slightest mistake in litigation technicality can be fatal to an entire case. He might have spent $50,000 and received nothing. Not many I-485 applicants have the financial resources or psychological preparedness to undertake the cause to fight with the USCIS. Dedicated aliens like Shirmohamadali who fight to hold the USCIS responsible for fulfilling its duties serve as an important force in improving the service provided by government agencies. For this, Shirmohamadali and his attorney deserve a salute.

Note: Case reference: Asghar Shirmohamadali, ET AL V. Gerard Heinauer, ET AL., Docket Number: No. CIV S-07-1073 DAD, United District Court for the Eastern District of California. Ordered entered July 2, 2008. Mr. Gerard Heinauer is the Director for USCIS Nebraska Service Center.

About The Author

Jian Joe Zhou, Esq. is the co-managing at Zhang & Associates, PC. He has more than eight years of experience in employment/business immigration and international law practice. He received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law.

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