"When the law offered no door, we tried to open one anyway."
In 2015, I filed a federal Mandamus action in the District of Connecticut on behalf of an Italian father whose three young children had been taken to the United States by his ex-wife — a woman an Italian criminal court had already convicted of kidnapping them. I took the case pro bono. We lost. This page tells the story honestly, because some cases are worth fighting even when the law makes them nearly impossible to win.
Besnik Marku is a citizen of Italy and the father of three children — Anna, Chiara, and Luca. In September 2007, his then-wife, Aida Krasniqi, traveled to the United States with the children to visit relatives. She had agreed to return to Italy approximately one month later. She did not.
Instead, once she was on American soil, Ms. Krasniqi informed Mr. Marku that she had no intention of bringing the children back. He filed a criminal complaint in Italy. The Criminal Court of Ancona later convicted her, in absentia, of kidnapping the children and sentenced her to two years' imprisonment and €100,000 in damages. She remains a fugitive from Italian justice.
In the United States, Ms. Krasniqi then did something extraordinary: she applied for a U Visa — a humanitarian visa Congress created for victims of serious crimes — on the basis of a criminal complaint she filed against Mr. Marku himself. USCIS approved her petition. Mr. Marku came to the United States to face the charges she had filed against him, and he was never convicted of any criminal offense.
Even after Mr. Marku served USCIS with a certified copy of the Italian kidnapping judgment, the agency took no action to reopen, rescind, or revoke the U Visa it had granted to his children's kidnapper. Years passed. The children remained in the United States. Mr. Marku remained more than four thousand miles away.
Aida Krasniqi travels to the United States with the three children on what is supposed to be a one-month visit. She refuses to return.
The Criminal Court of Ancona convicts Ms. Krasniqi in absentia and sentences her to two years in prison. She remains a fugitive.
USCIS grants U-visa status to Ms. Krasniqi and the children based on a criminal complaint she filed against Mr. Marku — charges that ultimately produced no conviction.
On November 12, 2015, I filed a Complaint in the U.S. District Court for the District of Connecticut seeking to compel USCIS to reopen the U-Visa proceedings — pro bono.
On March 31, 2017, Judge Robert N. Chatigny dismisses the case, holding that even if the visa were revoked, the chain of consequences leading back to a reunion with the children was too speculative under Article III.
"USCIS's decision not to void, rescind, or revoke Ms. Krasniqi's U Visa petition creates an incalculable prejudice to Plaintiff. Plaintiff is a citizen of Italy residing in Italy, and his children are over 4,000 miles away from him."
— From the Complaint, ¶¶ 24–25The Complaint pleaded three intersecting theories. None of them, on the merits, was implausible. The argument was that USCIS had a non-discretionary duty to act when a foreign criminal judgment — entitled in our view to full faith and credit — revealed that the beneficiary of a humanitarian visa was herself the perpetrator of the underlying crime.
Under 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), federal courts may compel an agency to perform a non-discretionary duty. USCIS regulations at 8 C.F.R. § 205.2 authorize — and we argued required — revocation of a petition obtained through fraud once the necessity becomes known.
28 U.S.C. § 1361 · 5 U.S.C. § 706Approving a U Visa for a person convicted of kidnapping the very children also approved as derivatives was, we argued, the precise kind of unexamined decision the APA's arbitrary-and-capricious standard exists to police. See Burlington Truck Lines v. United States, 371 U.S. 156 (1962).
5 U.S.C. § 706(2)(A)A separate count argued that USCIS's refusal to give the Italian kidnapping judgment any weight at all was so implausible it could not be ascribed to agency expertise. See Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983).
Art. IV, § 1 · APAOn March 31, 2017, the Honorable Robert N. Chatigny granted the government's motion to dismiss. The Court did not reach the merits of whether USCIS had acted unlawfully. Instead, it held that the third prong of Article III standing — redressability — could not be satisfied.
The Court reasoned that even a victory on the merits would have triggered a long chain of contingencies — a possible new lawful status, a possible deferral of removal proceedings, a possible grant of relief from removal — and that each of those independent links involved discretionary choices by actors the federal courts could not "presume either to control or to predict." Under Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), and the Second Circuit's gloss in Pettus v. Morgenthau, 554 F.3d 293 (2d Cir. 2009), that was enough to defeat standing.
It was, in plain English, a procedural off-ramp. The Court never had to decide whether USCIS had granted a humanitarian visa to a convicted kidnapper. It simply held that Mr. Marku could not be the one to ask.
We did not file this case in defiance of Lujan or Pettus. We filed it with a serious, non-frivolous argument that Marku was meaningfully distinguishable from the redressability cases the government invoked — and that argument is worth setting out in the open.
The Second Circuit and Supreme Court cases on which the Court relied involve, almost without exception, a plaintiff asking a federal court to compel government action whose ultimate effect on the plaintiff runs entirely through the autonomous, discretionary choices of unrelated third parties — taxpayers challenging tax-exempt status of schools their children did not attend, environmental plaintiffs challenging permits issued to distant projects, and so on. The "speculative chain" the standing doctrine guards against is a chain of independent actors deciding their own affairs.
Our position was that this case was structurally different in three respects, each of which we briefed and argued in good faith:
Unlike the typical third-party-injury redressability case, we did not ask the Court to direct USCIS to take some new, affirmative step against an outsider. We asked USCIS to reopen and revoke a petition it had already granted, on the basis of fraud that had only become apparent post-approval. Removing the lawful basis the agency itself had created is not the same kind of speculative request as enjoining a regulator against a non-party.
8 C.F.R. § 205.2We argued that a final criminal judgment of an Italian court — convicting the U-Visa beneficiary of kidnapping the very children also granted derivative status — was not "speculative" third-party conduct at all. It was a fixed, public-record fact the agency was constitutionally and regulatorily obligated to weigh. The Full Faith and Credit dimension of the case, and the agency's own regulations, took us out of the pure Lujan paradigm.
Art. IV, § 1 · 8 C.F.R. § 205.2Mr. Marku was not a generalized objector to immigration policy. He was the named, identified father whose three children were the very subjects of the visa being challenged. The injury — continued separation from his children — was as concrete and particularized as Article III injury gets. Whether the downstream removal architecture would have moved was a fact question we argued was more probable than the Court ultimately found.
Art. III · Lujan, 504 U.S. at 560The Court considered these arguments and disagreed. That is the Court's prerogative, and Judge Chatigny's analysis is careful and well-reasoned. But disagreement is not the same as frivolity. The position we advanced was an honest, lawyered attempt to distinguish a hard case from harder precedent — exactly the kind of argument federal practice is supposed to invite, not discourage.
A lawyer who only takes cases he is certain to win is not really a lawyer. He is a clerk who chooses his clients by their odds.
When Mr. Marku first contacted me, he had been separated from his three young children for years. An Italian court had already done what Italian courts can do — convict the woman who took them. American immigration law had then, in his view and mine, done something close to the opposite: rewarded her with humanitarian status reserved for victims of serious crime.
The Mandamus statute exists for exactly this sort of moment, when an agency seems to have looked at the file and decided not to look any further. Whether or not a federal judge would ultimately agree that Article III let us through the courthouse door, I believed Mr. Marku was entitled to ask the question on the record. That is what a courtroom is for.
The case was dismissed. I will not pretend otherwise. The standing doctrine the Court applied is real, the Second Circuit precedent it relied on is sound, and Judge Chatigny's analysis was careful and respectful. We lost on the law as the law currently stands.
But I will say this: I would file Marku v. Zuchowski again tomorrow on the same facts, for the same client, for the same fee. Sometimes a writ is the only way a parent gets to say, in front of an Article III judge, that something was wrong. The judge does not always agree. He listens anyway. That is not nothing.
A note on what this case does not say about my Mandamus practice: the vast majority of my Mandamus filings are delay cases — applications USCIS has unlawfully failed to adjudicate — not collateral attacks on previously approved petitions. Delay-Mandamus is a fundamentally different doctrinal posture, and my track record there is what I publish my fee on. Marku was, by design, harder.
I cannot promise a win — no honest lawyer can — but I will tell you, plainly, what your case looks like to a federal court. There is no charge for that conversation.
Attorney Advertising. Prior results do not guarantee a similar outcome. Marku v. Zuchowski, No. 3:15-cv-XXXXX (D. Conn.), was dismissed for lack of standing on March 31, 2017. This page is a candid description of that result and is not a representation that similar relief would be available in any other matter.