Sue To Get Through U.S. Immigration Backlogs

Sometimes it is helpful to compare your progress with that of others to get perspective on how well you are doing. This is certainly the case, for example, when it comes to processing times of immigration cases. Let us take a look at how U.S. cases are doing when compared to Canada in regard to results.

So How Does It Look?

According to Immigration, Refugee and Citizenship Canada (IRCC), there were 2.6 million applications in IRCC’s inventory on September 30, 2022, out of which 1.1 million were within service standards and 1.5 million were considered backlog. To be fair to Canada, they have reduced their backlog in the last few months, but it is still far from perfect. In the U.S. between 2015 and 2020, the number of cases awaiting a decision by U.S. Citizenship and Immigration Services (USCIS) grew from 3.2 to 5.8 million. According to USCIS’s own data, processing times are increasing, leaving applicants waiting too long for a decision for most types of immigration benefit applications. In short, neither country is doing very well with processing and people in both countries are disgruntled with how long everything is taking.

Missing Connections

That brings us to the most interesting part of the story. Recently, CBC News published an article indicating that, “Canada’s immigration department has assigned tens of thousands of applicants to immigration officers or placeholder codes that are inactive and no longer working within their system — some who’ve last logged in and processed files up to 16 years ago, and from airports and visa offices around the world.” This appears to be almost a Keystone Cops scenario. As for the United States, despite recent progress, given the extraordinary immigration processing delays in the U. S., one can only wonder whether a similar drama could be unfolding in USCIS offices.

Turning To The Courts For Help

The Toronto-based Globe and Mail recently reported that the Canadian federal government, “is facing a barrage of legal cases” related to its backlog of immigration applications, which has led to slower processing times and plenty of frustration for those waiting years on a decision. In search of resolutions, more people are turning to the courts.”

A Writ Of Mandamus To The Rescue

At common law, the way to force a government official to do something was to apply to the courts for a writ of mandamus. A writ of mandamus is a court order that requires a government official, public body, corporation, or individual to perform a certain act that they have a duty to perform. For example, after a hearing, a court might issue a writ of mandamus forcing a public school to admit certain students on the grounds that the school illegally discriminated against them when it denied them admission.

A mandamus plaintiff must demonstrate that: (1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to perform the act in question; and (3) there is no other adequate remedy available to the plaintiff. Even when a court finds that all three elements are satisfied, the court retains the discretion to grant or deny the writ. Note, however, courts lack the power to compel the official or agency to act in any particular manner and thus cannot order the official or agency to grant the specific relief the plaintiff seeks. Nonetheless, mandamus can be a very effective way to speed things up in the right case.

Resorting To Litigation

The Globe article stated, “Slightly more than 800 mandamus applications against Immigration, Refugees and Citizenship Canada were filed in the 2021-22 the fiscal year, an increase of 465 percent from 143 applications in 2019-20.” In America according to one article recently published, “One year ago, in July 2021, 387 such lawsuits were filed. By December 2021, that number grew to 466, and in May 2022, that number grew again to 647.” It is evident from this brief summary that the trend to turn to the courts to speed up the processing of immigration cases using mandamus as a remedy is certainly growing even when looked at from an anecdotal point of view in both countries.

Could America Be In The Same Boots?

While not essential, having your case lost somewhere in the Canadian government’s closed offices is certainly helpful to draw attention to your matter in litigation. Were a similar series of misconnections discovered in America, which appears possible given the massive number of files being delayed, applicants could use a mandamus action to help move their cases forward as well. Filing a Freedom of Information Act request would be one way attorneys could discover whether the American system suffers from the same maladies the Canadian one does. That may be worth looking into for the sake of addressing the backlogs.

First Things First

At the moment the focus of attention in the U.S. is on December 16, 2022, when the continuing resolution (CR) passed by Congress last year to fund the federal government is set to expire. Discussions over a potential omnibus spending bill that would appropriate funds for Fiscal Year 2023 are ongoing. The American Immigration Lawyers Association (AILA) is calling on Congress to include in this package $400 million specifically targeted for backlog reduction and to address processing delays at USCIS field offices, service centers, and asylum offices. To be fair to the USCIS, last year’s funding helped the USCIS to catch up somewhat on processing. But more is needed this year. In addition to continued funding, AILA is calling on Congress to pass the Case Backlog and Transparency Act which will reduce backlogs by implementing certain reporting requirements.

However, even if the extra funding is passed by Congress and a serious problem with files like in Canada is indeed found, Americans will continue looking to the courts to ease their delay burdens. While both Canada and the U.S. are trying to catch up to their pre-pandemic levels, litigation is increasingly the best way forward for many immigrant applicants who, “just can’t take it any more!”