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  • aaronaisen

USCIS Has Not Decided My Asylum Petition that I Filed Years Ago. Can I Sue? Well, It Depends.

You came to America. You filed your asylum application on time. Now, several years have passed, and you have heard nothing.

You might have heard about a section of the law that sets deadlines for the U.S. Government to decide your application. 8 U.S.C. § 1158(d)(5)(A) requires the U.S. Government, absent "exceptional circumstances" to conduct the initial interview or hearing on an asylum application within 45 days after the application is filed. This statute also requires the U.S. Government to make a decision about that application within 180 days after the application is filed.

But you are way past those deadlines. Can the U.S. Government take forever to decide your application? What are your legal options? Unfortunately, the answer to this is not as clear cut as you might think. First, let's talk about the bad news.

The Bad News

Here is the bad news. First, a minority of courts have held that because the grant of asylum is a discretionary action, the courts lack the jurisdiction to even hear a case regarding delays in processing asylum cases.

Second, the same statute that set those deadlines for the U.S. Government also explicitly takes away any right for you as the asylum seeker to enforce those timelines. In other words, you cannot sue to enforce those deadlines. See 8 U.S.C. 1158(d)(7). BUT.....

The Good News

Here is the good news. A majority of courts have held that even though the grant of asylum is considered a discretionary action, this only applies to the final decision. The U.S. Government must still make a decision. In addition, while you cannot enforce these deadlines, the U.S. Government also cannot take forever, especially without a good reason.

After a certain point, the delay becomes unreasonable and the courts can order the U.S. Government to process the application. Therefore, you can still file a lawsuit requiring the U.S. Government to process the application.

How long is too long? This will largely depend on the court and the facts of each case. This requires a thorough analysis of the law in the court where you are filing and the facts of your application. You should consult an attorney experienced in resolving immigration processing delays before filing a lawsuit.

At Aisen Law, PLLC, we have experience handling immigration application processing delays. If your immigration application has been in processing for a long period of time, please give me a call today for a free initial consultation about your case.

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