By:  Richard Hanus, Esq.

Published August 24, 2022

When it comes to a long delayed immigration filing, such as for U.S. citizenship or permanent residence, the decision to sue the government to compel a decision can be a tough one.  Importantly, a lawsuit in this context is not to compel an approval on an application, although that’s what any applicant would hope for.  Instead, the lawsuit is simply a request with a federal judge to push the process along and force the reviewing government agency to do their job and give the applicant  a decision, any decision.   The first questions almost every applicant asks themselves are: Why would I sue the very agency I am looking to receive a favorable decision from?  Will the agency get mad at me for suing them and deny my case as a result?   These are great questions of course, but when the delays are exorbitant and highly consequential for a clearly eligible applicant, perhaps the better question to ask is:  Why wouldn’t I sue on a long delayed application?

A recent result for a family of long delayed applicants for naturalization is an example of why one would want to sue.    Nikita Kapoor along with her parents, all U.S. lawful permanent residents, recently sued U.S. Department of Homeland Security/Citizenship and Immigration Services (DHS/CIS) in federal court in New Jersey after waiting more than 2 years for even an interview appointment to be scheduled on their naturalization applications.  For more context, their applications were filed in 2020 just before the outbreak of COVID.  DHS/CIS responded to numerous inquiries, explaining that their particular immigration files were located in a National Records Center basement that became inaccessible since COVID started, although by March, 2022 that facility section had reopened, yet no interview was forthcoming.

The problem was that a formal DHS/CIS plan to retrieve pending citizenship applicants’ files from this particular site had yet to be finalized.   Concluding that a wait of more than 2 years was enough, Nikita and her parents sued DHS/CIS, and it worked!  Within a short period after the lawsuit filing, DHS/CIS was prompted to retrieve the files in question and schedule the family for their interviews.   In fact, Nikita has already been approved and is in line to take the oath of citizenship.

On Nikita Kapoor’s mind was not just simply becoming a U.S. citizen, but the opportunity to exercise the privileges U.S. citizenship affords, including voting in upcoming elections.   “Serious issues about the future of the United States, as to immigration, family, education, the economy will be determined by who is elected at the national, state, and local levels. If Plaintiffs’ A-files are not retrieved, then their interviews cannot be scheduled, and they will have no possibility of being scheduled for oath ceremonies and becoming U.S. citizens in time to vote,” they said.

In general, an applicant’s decision to file a lawsuit to compel a decision on an application for naturalization or green card will rest on a number of factors.  How “clean” is the case?  Does the applicant have a complicated criminal or immigration history, including one involving a marriage where unusual circumstances may be at play?  The more complicated the case background, the more time DHS/CIS may need to investigate and reach a decision.    For clean cases, a processing time of 12 or even 18 months may be reasonable, but beyond that the filing of a lawsuit may be completely warranted.

In fact, in my decades practicing immigration law, it’s become clear to me that in many scenarios where systemic issues may be at play (vs substantive issues on a specific case), DHS/CIS may be welcoming of the lawsuit.  Lawsuits loudly call attention to widespread problems that might otherwise not be a priority for top management to attend to.   Lawsuits shine bright lights on systemic issues and can serve as a pretext for agency management to shake things up in the way the bureaucracy at issue operates.  This was surely at play in the case of Nikita Kapoor, a clearly eligible applicant who did nothing wrong other than to file her case just prior to the start of COVID and have her file located in a COVID isolated records center.

PUBLISHED August 24, 2022– “IMMIGRATION LAW FORUM” Copyright © 2022, By Law Offices of Richard Hanus, Chicago, Illinois