What Is Jurisdiction?

Jurisdiction refers to the court’s authority to make a decision on a plaintiff’s case. In immigration matters involving unreasonable delay, the source of jurisdiction differs depending on whether the plaintiff filed an application for adjustment of status or for naturalization.

In cases involving adjustment of status, jurisdiction is most commonly found in the Mandamus statute and the Administrative Procedure Act (APA).The Mandamus Act gives federal district courts the power to compel an agency to act where the agency has failed to perform its duty. To bring a successful mandamus claim, you must first determine if the delay is “unreasonable.” Plaintiffs can show unreasonableness by proving that they have exhausted all administrative remedies before suing. Evidence of failed attempts to resolve the delay administratively gives strength to the argument that the delay is unreasonable and that judicial action is the last and only resort.

In cases involving naturalization applications, jurisdiction can be found under the Mandamus Act and the APA, as with adjustment of status cases discussed above. In addition, 8 U.S.C. ¤1447(b) specifically gives applicants the right to apply for a hearing if the agency fails to make a determination within 120 days of the case examination. While the relevant statutes provide a specific timeline for the agency to act, judges may nonetheless look to the reasonableness of the delay in fashioning a remedy. It is still important, then, to exhaust all administrative remedies before bringing an action in federal court.

There has been some disagreement among jurisdictions as to what the “examination” entails. Government defendants always assert that the “examination” includes not only the interview, but also the completion of the FBI name check. They argue then, that plaintiffs do not have standing to bring suits because 120 days have not passed from the completion of the examination since the examination has yet to conclude. A majority of courts, including one in the Southern District of Ohio, however, have ruled that the “examination” consists only of the interview. Therefore, most cases that have been pending for more than 120 days after the date of the applicant’s interview are reviewable by a federal district court.

Other problems arise if the unreasonable delay in a naturalization case arises before the interview is conducted. In these situations, the government tends to argue that they have discretion as to when to schedule an interview on a naturalization application, and thus APA arguments would be null in these situations. However, the naturalization statute appears to mandate a decision on an application, which would imply a timely scheduling of an interview and decision on the matter. In addition, regulations implementing the naturalization statute contain mandatory language indicating that the agency must act on an application. According to the regulations, the applicant must be notified that their application has been granted or denied.

Relief Requested & Parties to the Suit

Plaintiffs should ask for the following relief:

• Compel USCIS to adjudicate the application within 60 days
• Compel the FBI to issue the results of a criminal background and/or name check relating to plaintiff to USCIS and the court within 60 days
• Award attorney’s fees to the plaintiff if they are the prevailing party

Regarding parties to the suit, it is usually better to err on the side of suing more officials rather than less. This is because defendants can always be dropped from the suit, whereas adding more defendants can be difficult.

A petitioner should, then, name the following officials when filing a mandamus or APA action challenging immigration adjudication delays:

• Secretary of Department of Homeland Security (DHS)
• Director of USCIS
• Director of the service center where the application or petition is located
• District director of the local USCIS office with jurisdiction over the plaintiff
• Director of the FBI (if delay is a result of a pending FBI name check)

Some may also name the U.S. Attorney General, but this is not necessary because the Homeland Security Act of 2002 vests immigration as a function of DHS.

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