Waiting 10 Years on Asylum? Why Suing USCIS Now Could Backfire

A Nigerian mother called the Immigration Answer Show to ask whether, after nearly a decade waiting on an affirmative asylum case, she should sue USCIS over the delay. She entered in September 2016 with daughters aged 9 and 12 and filed in early 2017, based on female genital mutilation that was performed on her and that she feared her family would inflict on the girls. Founding attorney Jim Hacking answered with a question of his own.

He asked whether her case had gotten stronger or weaker in the last ten years. FGM as persecution is settled law; the Board of Immigration Appeals recognized it in Matter of Kasinga in 1996. The problem is that her claim was anchored to her daughters’ ages, and her daughters are now 22 and 19.

Her answer was that the family would treat them as outcasts and demand the ritual as the price of belonging. Hacking drew the line an immigration judge would draw.

He also previewed the internal relocation question, one of the standard levers for denying a claim where the persecutor is a family rather than a government: couldn’t they live safely somewhere else in Nigeria, away from that family? Under 8 C.F.R. § 208.13, when the feared persecutor is private, the applicant carries the burden of showing relocation would be unreasonable. Her answer, that there is no other family and no place to go, is a real answer, but it is the kind a judge probes hard.

A mandamus or unreasonable-delay suit does not win an asylum case. It forces the agency to decide it, and whether that helps depends on what the decision would be.

A denial would not arrive alone. For someone without status, an affirmative asylum denial means referral to immigration court, and a removal order in 2026 does not necessarily send you to the country named in your claim. The government’s removal authority under INA 241(b) lets it designate alternative countries, and third-country problems are already complicating asylee cases in other postures.

His advice to this caller was the opposite of litigation: “So, I think you just want to keep renewing your EAD and keep waiting waiting them out.” An asylum applicant’s work permit under 8 C.F.R. § 208.7 renews indefinitely while the case is pending, and her family has built stable lives on it, with one daughter through college and the second enrolled, both paid out of pocket.

None of this means delay litigation is dead. Hacking noted his firm is filing delay suits on asylum cases now, in the right postures, and pre-litigation demand letters and mandamus remain the main lever for stalled work permits and cases where the applicant would win the hearing tomorrow. Before filing, ask Hacking’s opening question: did the case get stronger or weaker while it sat? If the honest answer is weaker, a lawsuit just speeds up the wrong decision.