Franz Kafka, Man at a Table, Illustration For The Novel The Trial, 1905.

Bibi Alli & Matthew Blaisdell

Backlogs and delays have become common roadblocks in the U.S. immigration system, overburdening the courts and agencies. What to do, though, when the agency’s delay is used to justify a denial? While the Administrative Procedures Act (APA) allows for challenges to agency decisions that constitute an abuse of discretion, situations such as these are not explicitly addressed; case law, the relevant regulations, and USCIS policies merely emphasize the very broad latitude that officers are granted in exercising their discretion. In instances like these, it is occasionally useful to survey other areas of civil practice for remedies that may apply.

For example, the concept of “laches” dates back to the 14^th-century (deriving from a French term for ‘negligence’), understood to mean that “equity aids the vigilant, not those who slumber on their rights.” The concept is rooted in two elements: 1) an unreasonable delay caused by a party taking an action against another party; and 2) “a resulting prejudice” to that other party. In modern civil law, laches essentially allows a person to assert that they should not be prejudiced due to conditions that have changed with time as a result of the other party’s unreasonable delay.

Below we’ll look at instance in which we applied this concept to a USCIS denial that classified our client’s evidence as “outdated”––after their having sat on the application for two years.

Reorganization, delays, and denial

Very shortly after an adjustment of status interview for our client, we filed an application to waive a ground of inadmissibility. This waiver required us to prove that her U.S. citizen husband (and stepfather to her child) would suffer extreme hardship if she were unable to enter the U.S. However, it appears that, during a period of reorganization at the USCIS office, our client’s file began changing hands. These types of events are always problematic, as the officer who ultimately makes the decision is far less familiar with the applicant and their family than the one who conducted the interview; and they also take less responsibility for completing the case than the original officer. The more often a file gets passed around, the less likely it is to receive a quality and timely decision.

Despite having made many inquiries (by letter, in person, and electronically) to every point of contact and through every venue made available by USCIS, no substantive update or explanation was provided for 26 months. A denial was then issued claiming that the evidence of hardships was, by that time, out of date. At no point during this process had USCIS issued a “request for evidence” that would have allowed us to respond to such concerns.

Discretion for waivers is very broad, but can’t be abused.

Courts will generally defer to an officer’s discretion under the notion that agencies possess expert knowledge in a particular field. However, an officer’s discretion is not limitless. As we’ve explored in prior posts, courts may conclude that an agency violated the APA by issuing decisions that were arbitrary and capricious or failed to consider reliance interests. So, while officers may exercise broad discretions, they are bound by regulations to prevent abuse of that decision-making power.

We appealed to the Administrative Appeals Office, arguing that the evidence should be evaluated as it existed when it was provided––not as it existed by the time it was actually looked at. We further noted that, not only did the reliability of the evidence change in the 26 months, but the understanding of the law changed as well. The USCIS Policy Manual was updated immediately after the application was filed to address the understanding of “extreme hardship,” in which case the officer should have made clear which understanding was being applied and provided our client an opportunity to respond. For example, would our client be required to demonstrate extreme hardship in both scenarios of relocation and separation, or in just the scenario that was likely to occur? Would the hardship suffered by her son be considered in terms of the extent to which it would increase the hardship suffered by his stepfather? Such considerations could have a decisive effect on the manner in which the officer exercised discretion, and we should, therefore, have been given a chance to respond to those changes. The case was recalled by the Field Office, assigned to a different officer, and approved.

Keep going back to the rules, but be creative.

There are times when a decision just feels wrong, but the regulations and rules provide little guidance––such as how long an agency might take to issue a decision and how that time frame may factor into its decision. By employing the centuries-old civil concept of laches, we were able to fashion an argument that fit neatly with the APA’s standards for review. When navigating USCIS, it helps to remember that, in law, little is new––and remedies may occasionally be found outside the realm of immigration.