Good And Bad News For Long-delayed Asylum Applicant


In response to an “unreasonable delay” lawsuit filed in U.S. District Court, the Department of Homeland Security [“DHS”] promised to adjudicate an asylum case “within 90

days” in lieu of filing a response to the lawsuit. The DHS kept its promise. However, the asylum case was rejected, and referred to Immigration Court.

Mr. A was interviewed by an asylum officer in August 2014. But, no decision was made. His lawyer wrote letters and emails in 2015 and 2016. His lawyer contacted the US-CIS Ombudsman, and AILA.

March 2017: Mr. A filed an Administrative Procedure Act [“APA”] lawsuit against the DHS, in the U.S. District Court for the District of Columbia. [No. 17-cv-0556 (CKK); filing fee: $400]

His complaint cited 5 USC section 706(1), which provides that a Court is authorized to compel agency action that has been “unreasonably delayed.” Besides asylum, Mr. A claimed the statutory, non-discretionary right to withholding of removal, under 8 USC section 1231(b)(3). Mr. A cited Han Cao v. Upchurch, 496 F. Supp. 2d 569, 574 (E.D. Pa. 2007) (an agency does not have the right to let “a petition languish indefinitely.”)

May: The Assistant U.S. Attorney [“AUSA”] representing the DHS in court asked for an extension of time to file an answer. In June, an agreement was reached: “The CIS will interview Mr. A again, and decide his application within 90 days.” An excruciating 6-hour re-interview was held [no water, no bathroom breaks; Mr. A’s lawyer surreptitiously swallowed a few Tic-Tacs at times]. Mr. A was asked about his father’s employment 20 years earlier, among other seemingly irrelevant issues.

September 2017: CIS kept its promise: the application was decided- it was denied. Mr. A was referred to the Arlington VA Immigration Court. The case in U.S. District Court was dismissed.


Beshir v. Holder, 10 F. Supp. 3d 165 (D.D.C. 2014):

Beshir filed an application for adjustment of status in 2004; in 2008, the DHS suggested Beshir was a “terrorist,” in 2010, Beshir filed a lawsuit under the APA, and other statutes. In 2014, the Court ruled it had no jurisdiction, and dismissed the case! [The Court acknowledged there was case law to the contrary.]

Sultaliev v. Rodriguez, 2017 WL 2960515 (D.Mass. 2017): plaintiff complained that the CIS had not acted on his I-751 “Petition to Remove the Conditions.” The Court ruled that plaintiff lacked standing, for failure to show “a concrete and particularized injury.” [!]

Bemba v. Holder, 930 F. Supp. 2d 1022 (E.D. Mo. 2013) (six years is not unreasonable)

= = = = =

BUT: in SAI v. DHS, 149 F. Supp. 3d 99, 121 (D.D.C. 2015), the plaintiff, who suffers from a neurological disorder, filed an administrative complaint with DHS. Held: a delay of 2.75 years was “unreasonable.”

Reprinted with permission.

About The Author

David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.