Federal Review of Immigration Decisions
Federal courts are entrusted with reviewing agency denials of benefits under the Immigration and Naturalization Act and the Administrative Procedures Act. Federal Courts may review agency decisions, or indecision, in a case. The basis of such jurisdiction is the Constitution under Article III, the Administrative Procedures Act, the Mandamus Statute, and the Immigration & Naturalization Act.
What Type of Cases can the Federal Court Review?
Federal Courts may review the following decisions from the United States Citizenship & Immigration Decisions:
- Denials of Employment-Based Petitions, including non-immigrant visa petitions and immigrant visa petitions.
- Denials of Family visa petitions, including denials of I-130 Immigrant Visa petitions, I-485 Adjustment of Status Applications, and I-730 derivative Asylum benefits
- Denials of N-400 Application for Citizenship, and N-336 Naturalization Appeals
Federal Courts may also review unreasonable delays in the abovementioned cases. So, if the Service is not adjudicating such petitions, or is taking an unreasonable amount of time, an Applicant or Beneficiary, may petition for review by a Federal Court of competent jurisdiction to rule on such unreasonable delay.
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Are All Immigration Decisions Reviewable by a Federal Court?
No all decisions by the United States Citizenship and Immigration Service are reviewable by a Federal Judge. Some cases that are non-reviewable are those cases that are within the agency’s discretion. These cases include any cases that are confined to the Agency’s discretion. None of the petitions included above are discretionary, although the Service always argues that I-485 Adjustment of Status cases are discretionary. This view has been rejected by several courts.
What is a Writ of Mandamus and How Can it Be Used in the Immigration Context?
A Writ of Mandamus is where a litigant asks a Federal Court to enter an order asking a federal employee, like the Service, to do something or take a certain action. In this context, the Writ could be used in unreasonable delay cases. Mandamus has been used to move the Service to rule on Adjustment of Status cases or long-stalled naturalization cases. One of the considerations that should be kept in mind is the fact that the government is given some leeway in delaying cases if the Beneficiary might not be eligible for the benefit, or there are some national security concerns. If the Service has not responded to your case, and you believe that such a decision is unwarranted, please call contact us to review your case.
I Have in Detention for Several Months, Can I file a Writ of Habeas Corpus?
A Writ of Habeas Corpus could be a very important toon in the immigration context. The Writ has been used since the founding of the United States. The Writ is an order to a custodian, the person who is holding you, to “produce the body”. In the immigration context, this could be the District Director, or the Sheriff, if the immigrant is in the custody of a local agency under an MOU with Immigration and Customs Enforcement.
Please keep in mind that certain individuals fall under “mandatory detention” if they are convicted of certain crimes or if they have certain claims, like an asylum. There has been a lot of litigation regarding “mandatory detention”, which has been dealt with by the Supreme Court of the United States in Jennings v. Rodriguez.
If you, or an immediate relative, have been detained and denied bond in removal proceedings, please call us to discuss your case.
Attorney Ahmad Yakzan is your Tampa immigration lawyer. Please call us if we can help you with anything.
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