In some cases it may be necessary to sue the government in federal court if it is taking too long to decide an application or it is detaining someone in violation of the Constitution.
- Writ of Mandamus: If USCIS is taking too long to decide an application, one remedy is to file a writ of mandamus and ask a federal judge to order USCIS to make a decision. Whether a writ of mandamus is a good idea will depend on the facts of the case, but in most cases it requires an unreasonably long delay.
- Petition for Hearing on Naturalization Application: The law requires USCIS to make a decision on a naturalization application within 120 days of the date of the naturalization interview. If USCIS fails to make a decision within this time frame, an applicant may file a petition for a federal judge to decide the application.
- Lawsuits under the Administrative Procedures Act: A person whose immigration application was denied by USCIS may have a basis to file a lawsuit under the Administrative Procedures Act (“APA”). A lawsuit under the APA is not easy. The petitioner must first exhaust all administrative remedies. It also requires showing that USCIS made a clear legal error or otherwise acted arbitrarily in violation of the law.
- Writ of Habeas Corpus: A person who is being unlawfully detained by ICE may file a petition for writ of habeas corpus in federal court. Ordinarily, a person detained must exhaust administrative remedies first, such as requesting a bond before an immigration judge. Because the law governing mandatory immigration detention is so harsh, a writ of habeas corpus may not be available unless ICE has detained a person in violation of the U.S. Constitution or in clear disregard of the law.
