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US embassy in Guyana ordered by Judge in New Jersey to expedite Guyanese immigrant petition

imgres-1In an opinion that is likely to affect intended immigrants to the US from around the world, a New Jersey Federal Judge has issued an order directing the US Embassy in Georgetown to make a decision. In the case Federal Judge William Martini was asked by a Guyanese woman who sponsored her husband to the United States, to issue a writ of mandamus directing that the US Embassy make a decision to either issue or refuse her husband a permanent resident visa.

The Judge ruled that while it may not be within the court’s jurisdiction to review how a consular officer arrived at a decision, it was certainly within the court’s mandate to instruct the Government officer to make a decision. The State Department and the Embassy’s lawyer attempted to argue that the court had no jurisdiction. In addition the court found the US Embassy’s argument that the finding of temporary ineligibility was a final refusal and that mandamus was therefore inappropriate was not convincing. According to the Judge the U.S. Embassy clearly failed to execute its non-discretionary duty to issue a visa or a final refusal. This is evident from: (1) its failure to comply with its own refusal procedures; (2) the language of its communications with the petitioner and her spouse.

The case arose from what can be called maximum administrative delay for nearly two years. The husband received a letter from the U.S. Embassy in Guyana stating that he was found temporarily ineligible to receive a visa. That was since June 2011. The letter stated that the case required “Administrative Review” and that new information, when available, will be communicated to him in writing. The letter additionally stated he could check from time to time, to inquire about his application. One year later the case was still pending administrative review. The New Jersey based spouse decided to go to court. The court found that there was no evidence of administrative review.

After the matter ended up in the court this year the US embassy called in the husband to continue the process.

Several persons have complained about delays in the immigration process where US embassies in the Caribbean have put them on pause so to speak for administrative review or claimed that there is a refusal on various grounds including failure to provide documentation or allegations of misconduct.

The New Jersey Judge’s order is expected to make it clear that decisions have to be made according to the procedures laid down in the law. The Court ruled that intended immigrants simply cannot be told “your case is still pending” without a final decision being made.

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