ADMIN & JUDICIAL REVIEW
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 a visa petition/application adjudication has been unreasonably delayed.
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 the underlying application or petition was filed. “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 file an appeal directly. 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 bodies with 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 the appeal.
Federal Court Complaint Under the 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 disregards its own binding policy memorandum to reach an erroneous decision in a case. Plaintiff can seek 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
A mandamus action can be a remedy when the government fails 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.
Frequently Asked Questions
What is the difference between filing a new application and appealing a denial?
Appealing a denial challenges the legal reasoning of the decision and preserves the original filing date, which can be critical for priority dates. However, filing a new application allows for the submission of fresh evidence that may not be admissible in an appeal. We can help you assess whether the error lies in the adjudication or the initial evidence to determine the most effective path forward.
How do I know if a USCIS decision can be appealed?
A USCIS decision can generally be appealed if the notice of denial or decision includes information about the right to appeal. The decision notice will often specify the appropriate administrative body to handle the appeal.
Does a Writ of Mandamus guarantee that my application will be approved?
A Writ of Mandamus compels the government to make a decision when one has been unreasonably withheld, but it does not dictate what that decision must be. The court orders the agency to adjudicate the case, whether that results in an approval, a denial, or a Request for Evidence (RFE).
Does a federal lawsuit automatically stop deportation proceedings?
Filing a complaint under the APA or a Writ of Mandamus regarding a benefit adjudication does not automatically grant a “stay of removal” or stop deportation proceedings. A stay of removal is a separate and specific legal request.
When can a writ of habeas corpus petition be filed?
A writ of habeas corpus can be filed when an individual believes they are being unlawfully detained or imprisoned, including cases involving immigration detention. It is a legal mechanism used to challenge the legality of the detention and request the court to order the release of the detained individual if the detention is found to violate constitutional or statutory rights.
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