Federal Court Litigation

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Immigration Litigation in Federal Court

If your immigrant or non immigrant visa petition or other relief  has already been denied by a local immigration court, the Board of Immigration Appeals (“BIA”), or Administrative Appeals Office (“AAO”), you may still be eligible to seek relief and win your case by taking it to federal court.

At Baughman & Wang, our experienced attorneys can review your case to determine and advise you whether to file your case in federal court. It is critical that you receive expert advice promptly involving any potential federal claim you may have due to the complexity of this area of law and strict deadlines which may apply to your case.

Although federal appeals can arise in a variety of immigration cases, most cases involve appeals of BIA denials related to asylum, deportation, removal, and criminal charges. If the BIA denies your case, you will need to know if you should take the case to the appeals court.  If your employment based immigrant or non immigrant visa petition is denied by the AAO, contact us immediately upon receipt of a denial. We can help you file a petition for review with the federal court that has jurisdiction over your case. The petition must be filed within 30 days after the date of the BIA or AAO denial.

Following are common claims in federal district courts:

Mandamus action.  This action is to compel USCIS delay in adjudicating immigration benefits.  We have handled more than 250 mandamus actions in the past several years.  The results have been exceptional good.

Declaratory Relief.  This action is to have the federal court to review a denial of employment based visa petition or certain claims arising out of the removal proceedings, or to have the court review government policy, regulation or to interpret the immigration law.

Petition for Review after N-400 denial.  This action is to have the federal judge  review the denial of your naturalization application.

Habeas Corpus.  This is an action to challenge certain action/practice of the US government involving constitutional rights of the alien.

Following are common claims in federal appeals courts:

Petition for Review after dismiss of appeals by BIA.

Petition for Review after dismissal or lost in district court for any cases.

Please consult with us if you have any federal court immigration cases.

Mandamus Action for Case Processing Delays

The following issues must be considered before you decide to file Mandamus Action:

(1) the time agencies take to make decisions must be governed by a “rule of
reason”;

(2) where Congress has provided a timetable or other indication of the speed with
which it expects the agency to proceed in the enabling statute, that statutory
scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency
activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests
prejudiced by delay;

(6) the court need not find any impropriety lurking behind agency lassitude in
order to hold that agency action is unreasonably delayed.

When a court grants mandamus relief, it usually will direct USCIS to adjudicate an application or petition within a certain period of time, or order the agency to promptly process an application or petition without providing a deadline.

In litigating a mandamus case, we always consider the following strategies:

  • Specifically requesting that the court order USCIS to adjudicate the application or petition within a certain time period, for example, 30 or 60 days.
  • Asking the court to maintain jurisdiction over the action even after granting mandamus relief so that the court can enforce its order. Alternatively, a plaintiff may request that the court require USCIS to periodically update the court about its progress.
  • In cases where the plaintiff knows or suspects that security checks are causing the delay, naming the FBI in addition to USCIS to ensure that the court has jurisdiction over both agencies. The court may then order either or both to complete the investigation of the plaintiff and process the application or petition.

Since 2008, name check delays have been exceptions rather than norm.  However, delays caused by other reasons are still common for difficult cases, especially cases involving investigation, complicated legal issues or fraud related cases.  Mandamus Action is still very valuable when the delay become unreasonable.