Government Inaction on Immigration Paperwork Leads to Record High Lawsuits

Published Jul 12, 2022

The federal government is facing a flurry of lawsuits for failing to take action on a variety of immigration-related applications. In May 2022, the federal civil courts recorded 647 immigration-related lawsuits for writs of mandamus (a type of lawsuit that seeks to compel the government to take a lawful action) and other immigration actions, the vast majority of which were linked to procedural delays or decisions by the Department of Homeland Security. This is the highest number of such cases filed in a single month since at least October 2007, the earliest date for which TRAC has data. At this rate, the courts will see 6,276 such cases by the end of this fiscal year in September, up from 4,347 in FY 2021. See Figure 1.

These numbers on mandamus actions do not include civil suits for habeas corpus petitions from individuals who are detained, or other categories of civil immigration lawsuits such as those concerning naturalization. These other categories have shown no recent increase.

The US immigration system relies on a wide variety of applications and other documents that must be acted upon (typically by issuing an approval or denial), including applications that are decided by immigration judges, government employees at US Citizenship and Immigration Services (USCIS), an agency within the Department of Homeland Security (DHS), or government employees at the Department of State.

In recent years, the processing times for cases at USCIS has grown considerably, leading to many immigrants waiting for prolonged periods of time to find out if their paperwork will be approved. For some applicants, delays at government agencies could mean that a person outside of the United States must wait to join family members inside the country or a person inside the country may have to live in legal limbo for months or years while waiting on an outcome. For others, delays at the agency mean waiting on work authorization or other paperwork that may require little more than a perfunctory signature, but that prevent the person from working and participating fully in society. However, filing a mandamus action may speed getting a decision on their application; but that decision could well be to have their application denied. There is no assurance it will be approved.

Although USCIS is not the only agency named in recent lawsuits, USCIS does illustrate the challenges that agencies are currently facing when trying to process immigration paperwork, which then lead to growing lawsuits. Many of the record number of lawsuits filed in May 2022 name USCIS Director Ur Jaddou as a defendant, while others name DHS Secretary Alejandro Mayorkas, US Citizenship and Immigration Services as an agency, Attorney General Merrick Garland (who oversees the immigration courts), and even USCIS regional directors.

USCIS itself acknowledges that delays at the agency have increased in recent years. In March 2022, USCIS issued a public statement describing the steps it planned to take to address backlogs. In that statement, USCIS identified the current exacerbation of delays as due to the global pandemic and recent under-resourcing at the agency: “Due to the COVID-19 pandemic and resource constraints resulting from the prior administration, USCIS inherited a significant number of pending cases and increased processing times.” Among other measures, USCIS has sought to improve access to employment authorization documents, expanded premium processing, and streamlining many processes. The agency also now makes processing times available online.

Despite USCIS’s attempts—and attempts by other agencies—to address the backlog of paperwork, immigrants who are facing delays often see a lawsuit as the only means for obtaining a decision on their case when they hear nothing back from agencies for months or even years. Indeed, in recent months, the number of these lawsuits has grown. A 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. See Figure 2.

Although both government agencies like USCIS and immigrants themselves may see themselves as suffering from circumstances beyond their control, a lack of meaningful solution to the growing backlog of immigration cases across several government agencies (not only the immigration courts) is having a spillover effect by leading to more resource-intensive litigation efforts in the federal civil courts.