Writ of Mandamus / unreasonable delay lawsuits for asylum interviews
Filed your asylum application years ago, but still haven’t had an interview? Or you’ve already had your interview, and now USCIS won’t make a decision? Eager to move forward with your life?
The USCIS Asylum Office is legally required to set an interview within 45 days and to make a decision within 180 days, in most situations.
The USCIS Asylum Office used to interview applicants in more or less the order that cases were filed. In 2018, they changed the rule – and now they are processing the line backwards under the “Last In First Out” (LIFO) rule. This means cases filed in 2018 and earlier are now at the back of the line, with new filings jumping ahead of them every day.
If you’re stuck in this line, I recommend:
- Get interview-ready. If an attorney didn’t file your application, review your case with a reputable immigration attorney to ensure that it is a strong application, well-documented, and ready for interview. If not, an immigration attorney can assist you in getting your case “interview ready.”
- Ask for an interview. Some local asylum offices have a process for delayed cases to be set for interviews on short notice when other applicants cancel, or they may have processes to request a faster hearing for humanitarian reasons. If you don’t have an attorney, you can hire one to assist with this.
- If step 2 gets your interview scheduled within a few months, great! If not, it might be time to pull out a sharper tool: a federal lawsuit.
How does a federal lawsuit work?
If the usual channels don’t work, a federal judge can order the Asylum Office to hold an interview and make a decision on your case within a reasonable amount of time.
Congress ordered the immigration authorities to
A lawsuit starts with a complaint, which is a document explaining the history of your case, giving legal argument for why USCIS has a legal obligation to you, and asking the judge to order them to take action on your case. The government has 60 days to respond to the complaint. Very often filing the complaint is enough to get your case moving, because the government attorney coordinates with USCIS and does not want to waste resources fighting the case.
Can this hurt my case? Will USCIS retaliate against me?
Over several years and assisting in lawsuits with thousands of plaintiffs, I have never heard of an immigration agency retaliating against a plaintiff. Often it’s the opposite – when the agency sees that you understand your rights, they are careful to treat you fairly.
However, suing the government does not guarantee that you will win your asylum case. If your asylum application is weak, filing a lawsuit will not fix that, and might simply get you a denial of your case sooner. This is why I always recommend reviewing your file and ensuring that it is strong and interview-ready before proceeding.
Where do we file the lawsuit?
A federal lawsuit can be filed in the jurisdiction where the plaintiff lives, or where the government agency is. For example, if you live in Memphis, you can file in the Western District of Tennessee where you live, or in the Eastern District of Louisiana, where the New Orleans Asylum Office has your case. You could also possibly sue in the District of Maryland, where USCIS is headquartered.
For each case we review possible venues and research recent cases to see where would be the best place to locate your case. If I am not yet admitted to practice in the jurisdiction where we want to file, we can collaborate with a local attorney to get your case filed.