In our past article, “Expediting Your Asylum Application If Already in the Backlog”, we discussed that starting January 29, 2018, the Asylum Division will give priority to the most recently filed affirmative asylum applications when scheduling asylum interviews. As a result, if you are in the current asylum backlog (more than 311,000 in the current backlog), this policy would further delay the adjudication of your asylum application.
We advised that if you have an urgent need to be interviewed and or to obtain a decision outside of the priority order, you may submit an expedited request to the Asylum Office, explaining the need for an expedited process; based on severe financial loss, emergency situation, or humanitarian reason; and providing evidence confirming the urgency. There is no downside from seeking to expedite your asylum case but you will not be successful unless you meet the criteria.
What if you do not qualify for an expedited request but have been waiting for months or years to have your asylum case scheduled or decided?
If the delay in scheduling or issuing a decision in your case is unreasonable, it may be appropriate to file a mandamus action. Under the Mandamus Act, the court may force a government agency to do its job within a reasonable amount of time. In this case, you are requesting that the court force USCIS to take action by scheduling your asylum interview or issuing a decision in your case.
The asylum offices frequently settle mandamus cases by simply agreeing to schedule the interview at a date certain or issuing a decision in the case. Sometimes, however, they oppose the mandamus lawsuit, by filing a motion to dismiss; arguing that your case has not been unreasonably delayed, and asking the judge to dismiss your lawsuit.
It is unclear whether USCIS will respond to future mandamus actions by scheduling the asylum interview/issuing a decision to avoid litigation, or by taking a more aggressive stance by defending against the lawsuit; and if so, whether such cases may be more likely to succeed in court because of the change in scheduling priorities.
There are risks and benefits involved in filing a mandamus action. On the downside, you may lose your mandamus lawsuit if USCIS chooses to defend and is successful in convincing the judge that the delay in scheduling or issuing a decision in your case is reasonable. In that event, your asylum case will just continue to wait in line. On the upside, your lawsuit may force USCIS to process your case in order to avoid fighting your lawsuit. The risks and benefits are different in each case. As such, it would be prudent to consult with an immigration attorney to determine your chances for success before your proceed with this option.
Let our experienced attorneys examine your circumstances to determine whether you should proceed with a mandamus action, and if so, assist you with filing a mandamus at any point during your application. Feel free to contact our immigration attorneys at the Law Offices of Azita M. Mojarad, P.C. with any questions or for additional information.