ADMINISTRATIVE AND JUDICIAL REVIEW OF AGENCY ACTIONS
One may be able to seek administrative and/or judicial review after an unfavorable decision by USCIS on a visa petition/application. Additionally, an individual may file a Federal Court complaint where visa petition/application adjudication has been unreasonably delayed.
ADMINISTRATIVE REVIEW OF AGENCY ACTIONS
Motion to Reopen
A motion to reopen is a request to the office that issued the unfavorable decision to review its decision based on new facts. The motion must state new facts and be supported by affidavits or other documentary evidence demonstrating eligibility at the time of filing the underlying application or petition. “New facts” means facts that have not been previously submitted in the proceeding.
Motion to Reconsider
A motion to reconsider is a request to the office that issued the unfavorable decision to review its decision based on an incorrect application of law or policy. The motion must establish that the decision was incorrect based on the evidence of record at the time of that decision.
Appeal
One can file an appeal on a motion or directly file an appeal. An appeal is a request to a different authority to review an unfavorable decision. One may appeal certain USCIS decisions to the USCIS’ Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), an office within the Department of Justice. The BIA and the AAO are administrative appellate entities that have jurisdiction over different types of immigration cases. The denial or revocation notice provides information about whether the decision may be appealed and where to file appeal.
JUDICIAL REVIEW OF AGENCY ACTIONS
Federal Court Complaint under Administrative Procedure Act (APA)
A Federal district court complaint, under the Administrative Procedure Act (APA), seeking review of an unfavorable decision can be filed when USCIS fails to properly interpret and apply the relevant statute and/or disregard its own binding policy memorandum to reach an erroneous decision in a case. Plaintiff can seeks declaratory judgment stating that the USCIS’ actions were arbitrary, capricious, and not in accordance with law. Plaintiff may seek further relief ordering USCIS to reverse its decision.
Writ of Mandamus
Mandamus action can be a remedy in situations where the government has failed to act when it has a duty to do so. Mandamus can be used to compel administrative agencies to act. A mandamus plaintiff must demonstrate that: (1) he or she has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) no other adequate remedy is available.
Courts have found that the Immigration and Nationality Act (INA) establishes a clear right to have an adjustment application adjudicated. Courts also have found that the INA establishes a clear right to relief in the context of delayed naturalization applications where the interview has not yet been conducted.
Writ of Habeas Corpus
To challenge the lawfulness of an individual’s detention, a petition for a writ of habeas corpus may be filed in the Federal district court where the individual is detained. Once the habeas corpus petition is filed, the district court retains jurisdiction to decide the petition even if the individual is moved or transferred to a location outside the district.
