Delays in processing visas and status adjustments leave many in limbo for months or years. Without an idea of when applications will be processed and with long wait times, individuals and families are not able to plan for the future. Hardship caused by delays can come in many forms. Some cases leave individuals unable to work while await authorization. This week, the LA Times published the story of an Indian National who waited for over a decade to join his family in the United States. His application finally reached the front of the line, but he died of Covid-19 before the government made a final decision. This is far from anecdotal, but the experience of millions whose lives have been held up in the immigration process. Bloomberg recently reported the rise of writs of mandamus filed in response to USCIS processing delays. With ever-mounting wait times, mandamus litigation is increasingly becoming the solution. After exhausting all options, litigation is often the only choice for those waiting indefinitely.
FY 2022 by the Numbers
In July, the Transactional Records Access Clearinghouse (TRAC) published numbers illustrating the rise in mandamus suits filed. “647 immigration-related lawsuits for writs of mandamus” were filed in May of 2022 alone. They estimate that when the fiscal year ends at the end of September, the total number of lawsuits filed could reach 6,276. This marks a significant jump from the previous fiscal year, which also saw a steep rise in mandamus litigation because of delays caused in part by Covid-19.
Why the rise in lawsuits?
The continued rise of lawsuits filed illustrates that processing delays have only intensified over the past year. An outdated and overburdened system and policy changes have contributed to the massive backlog. Covid-19 exacerbated the issues and lengthened the waitlist.
This spring, USCIS announced new measures aimed at decreasing the backlog. The measures which include new time goals, an increase in hiring, attempts to streamline the process, and to move towards digital filing will take a while effect change and alone will likely not result in meaningful change. New cases are added to the queue daily. Meanwhile, legislation in Congress that would speed up the process and eliminate the backlog has no momentum. Many of the immigration measures in front of Congress address the backlogs piecemeal. Pending legislation like the Eagle Act and the RELIEF Act aim to eliminate country caps. (See our previous article on current immigration legislation.) Other legislation, like the Jumpstart Our Legal Immigration System Act, include increase funding for USCIS to combat backlogs. More comprehensive immigration reform is unlikely. With no meaningful immigration reform in sight and USCIS unable to catch up, many caught up in the system have nowhere to turn but to the courts.
Plaintiffs can bring mandamus action under either the Mandamus Act or the Administrative Procedure Act (APA) – which requires agencies to conclude matters “within a reasonable time”. Claims brought under either statute entitle the plaintiff to the same relief. Compelling the government agency to act will result in approval or denial of the plaintiff’s application. It does not guarantee a decision in favor of the plaintiff.
Filing a writ of mandamus, after exhausting other efforts, can present an expedited path to adjudication and end to the wait. Rather than go through a lengthy legal battle, the government has often opted to hand down a decision on the applicant’s case. However, the rise in cases is changing the landscape. Immigration attorneys have noted that the government is more willing to let things play out in court and put on a defense. Bloomberg interviewed immigration attorney Brad Banias, who stated that “with the increase, they do have an interest in pushing back a little more to try to disincentivize delay cases.” A number of immigration attorneys feel there is power in the increase in number of suits filed and hope it to helps jumpstart systemic change.