With each passing day, it seems that the government takes longer and longer to process applications for immigration benefits. Whether it is an application for a green card or an application for work authorization, a task that used to require several months for the government to complete now requires years.
On our blog and Youtube channel, we often emphasize the benefits of using litigation to combat these delays. By filing a mandamus lawsuit against the government, you invite a neutral judge to decide whether the government’s delay is reasonable, and whether it should be forced to do its job.
In an earlier post, we described the typical ways in which the government responds to a mandamus lawsuit. One of the ways in which the government can respond is by filing a motion asking the judge to dismiss the lawsuit, called a motion to dismiss. In this post, we discuss what a motion to dismiss is, the arguments that are usually made in such a motion in the context of an unreasonable delay claim, and a few tips to effectively argue against a motion to dismiss.
For those of you eager to dive right in and look at how a judge analyzes a motion to dismiss, take a look at this recent win that we received on behalf of our client. In the order, the judge applied a common framework and concluded that none of the relevant factors weighs in favor of dismissing the case. Our client was able to continue his lawsuit against the government’s extensive delays.
What is a motion to dismiss?
A motion to dismiss usually happens at the early stages of a lawsuit. As described in our earlier post here, by filing a motion to dismiss, the government makes the claim that the plaintiff (the applicant who has sued the government) doesn’t have a case even if all of his allegations are true. Clearly, this is a significant claim, and many judges have decided that it is premature to consider a motion to dismiss in a mandamus case when the parties have not even had a chance to fully develop their arguments and engage in discovery.
Nevertheless, some judges have decided to grant motions to dismiss, even in cases in which the applicant has been waiting years for the government to take action. In this post, we will take a look at how to prepare your complaint in a way that increases the chances that the judge will conclude that the case should not be dismissed.
How does a judge decide whether to grant the government’s motion to dismiss?
To rule on a motion to dismiss, the judge must decide whether the complaint has alleged facts that could plausibly support the claims made in it. In other words, if the judge were to assume that everything you’ve said in your complaint is true, would that lead to the conclusion that the government has unreasonably delayed a decision on your application?
At the outset, it is important to make clear that any complaint must satisfy several basic, threshold requirements. Among other things, the complaint must comply with the court’s rules. It must also make clear the basis on which the court has jurisdiction over the matter. The complaint must also name the correct defendants, who must have been served both the summons and complaint. A qualified lawyer will be familiar with these and other fundamental requirements that must be followed in order to survive a challenge to the complaint.
What are the additional factors the judge is likely to consider when deciding the motion to dismiss?
Many judges look to six specific factors when determining whether to grant a motion to dismiss in a mandamus case. These factors come from a 1984 case that was decided in the U.S. Court of Appeals for the District of Columbia called Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), or “TRAC,” for short.
The questions raised by the six TRAC factors are as follows:
- TRAC Factor 1: Is the time the agency takes to make a decision governed by a rule of reason?
- TRAC Factor 2: Has Congress provided a timetable or other indication of the speed with which it expects the agency to reach a decision?
- TRAC Factor 3: Does the delay negatively impact the applicant’s health or welfare?
- TRAC Factor 4: Would expediting the decision have an impact on other agency activities that have a higher or competing priority?
- TRAC Factor 5: Is there any other impact that the delay has had on the applicant?
- TRAC Factor 6: Is there any impropriety or bad faith behind the government’s delay?
How can the applicant use the six TRAC factors in their favor?
By keeping the six TRAC factors in mind, the applicant can draft a complaint that is more likely to survive a motion to dismiss. By including facts in the complaint that can be used to answer each of the six questions listed above, the applicant can significantly improve their odds of success should the government move to have the case dismissed.
For example, TRAC factors 3 and 5 both ask what impact the delay has had on the applicant. The complaint can therefore anticipate a motion to dismiss by including details about how the applicant has suffered harm as a result of the delay. Perhaps the applicant is prevented from being able to vote, unable to be united with their family, kept from working, or prevented from growing their business. These are all facts that would be relevant in response to the government’s allegation that the applicant has not suffered any harm as a result of its delay.
Similarly, the complaint can anticipate the first TRAC factor by including facts that show how the agency’s process is not governed by a rule of reason. This might require some detective work. Fortunately, as detailed in our earlier post here, the government is required to disclose a significant amount of information that calls into question the reasonableness of its delays.
To see how one judge analyzed the six TRAC factors and ultimately found that they weighed in favor of the applicant, see our recent win on behalf of a client who had been waiting several years for a decision on his I-526 application here.
Final Thoughts
While many mandamus lawsuits resolve through settlement, some require that the applicant respond to a motion to dismiss or other efforts by the government to challenge the lawsuit. As a result, it is important that the applicant prepare to respond to such challenges from the start of the lawsuit. By keeping the six TRAC factors in mind and including in the complaint facts that can be cited to show how the TRAC factors weigh against the government, the applicant can significantly strengthen their position as they fight the government’s delay.
