Writ of Mandamus
Federal Court Cases Against Unreasonable USCIS Delays
You probably have never heard of the Writ of Mandamus. Your immigration case could be delayed or denied for many reasons. Sometimes, the U.S. Citizenship and Immigration Services (USCIS) can cause a delay because of a lost file or a request for evidence. Extended delays are usually related to FBI security checks.
USCIS has a mandatory legal duty to make a decision on all immigration applications; however, USCIS often delays the adjudication of a case, especially when filing an adjustment of status and in Citizenship cases. Despite repeated inquiries for case status updates, many people are advised by USCIS simply that their case is “under review” or “still pending”.
As a New York Immigration Lawyer, I filed dozens of petitions in Federal Court on behalf of clients seeking to compel USCIS to make a final decision on their case.
Delay on Adjudication of Form N400
In the naturalization process, after passing the English and civics tests, you can be approved immediately or may have to wait months, or even years, before a final decision. On U.S. Citizenship cases, USCIS has 120 days from the date of the interview to render a decision; when USCIS fails to do so, the law allows an applicant to seek judicial intervention by filing a 8 U.S.C. § 1447(b) lawsuit in Federal District Court. This action is also called “Writ of Mandamus“.
In a 1447(b) Mandamus action, the petitioner asks the Federal Court to hold a hearing on his N400 naturalization application. The Mandamus action must be filed with the Federal District Court for the district in which the applicant resides. While a Federal Court is empowered with adjudicating your citizenship application, they rarely do so. Instead, in most cases, the Court will remand the matter back to USCIS and order the agency to make a decision within a set period. The goal of this Writ of Mandamus is not necessarily to have a district court judge decide it, but rather to make sure that USCIS is forced to make a final decision within a relatively short time. Without resorting to the Writ of Mandamus, USCIS has takes even 5 (or more) years before making a final decision on some naturalization applications.
Things get more complicated when USCIS fails to schedule the applicant’s initial naturalization interview. In fact, the 120-days period to make a final decision is triggered on the date of applicant’s first examination. If USCIS never schedules the applicant’s initial interview, it might be still possible to file a petition under the general Writ of Mandamus statute, 28 U.S.C. § 1361.
Delay on Adjudication of Form I485
Form I485 is the application for adjustment of status to that of a lawful permanent resident. This step comes after approval of either a family-based (Form I-130) or immigrant Visa (Form I-140) petition.
An unreasonably extended review for I485 applications may require legal actions. An applicant can send a preliminary “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment” to USCIS to seek a final decision on the case. Usually, there is no time limit for USCIS to make a decision on I485, even if the Federal Courts have generally said that any delay over two years is unreasonable.
Delay on Adjudication of Form N600K
The N600K is the USCIS application form to apply for U.S. citizenship for minor children of a U.S. citizen parent or grandparent that intend to continue reside abroad. It is a special naturalization process regulated by INA 322, which imposes certain conditions.
One of the conditions to naturalize under section 322 is that the child must complete the naturalization process before turning 18 years of age. This means that any unreasonable delay by USCIS in processing your Form N-600K could cause your child or grandchild to lose his eligibility to naturalize under section 322. If your child if close to turning 18, filing a petition for a Wit of Mandamus could be your only option to save his or her case.
What are the reasons for USCIS delays?
USCIS delays can be caused by various reasons such as lost files, requests for evidence, or FBI security checks.
Consular Processing Delays
The beneficiary of an approved Form I130, I140, or I824 that is residing abroad must apply for an immigrant Visa with the U.S. Consulate is his or her country. Often, Consular Officers take an unreasonable amount of time to decide a case. This delay is generally very detrimental to the Visa applicant that is waiting to either reunite with his family or start working for the U.S. sponsoring company.
In general, the decisions of Consular Officers are not subject to judicial review. This is also known as the “doctrine of consular non-reviewability”. The exceptions to this doctrine are extremely narrow.
However, Court have noted that “failure to decide” does not amount to a consular decision, and therefore a petition for a Writ of Mandamus can be filed against the U.S. Department of State when a Visa petition has been pending with a U.S. Consulate abroad for an unreasonable time. Nine Iraqi Allies Under Serious Threat Because of Their Faithful Serv. to the United States v. Kerry, 168 F. Supp. 3d 268, 291 (D.D.C. 2016).
What can a Writ of Mandamus do?
A Writ of Mandamus is an order from a Federal District Court order to compel a Federal Agency, a government officer, public body, corporation, or individual to fulfill mandatory or ministerial duties, or correct an abuse of discretion. As said before, USCIS has a mandatory legal duty to make a decision on all immigration applications.
Pursuant to 5 U.S.C. § 706(1), a court “shall compel agency action unlawfully withheld or unreasonably delayed.” 5; Atlantic & Gulf Stevedores, Inc. v. Donovan, 274 F.2d 794, 802 (5th Cir.1960).
The Mandamus Act, 28 U.S.C. § 1361, provides that district courts shall have jurisdiction over any action in the nature of mandamus, and may compel an officer or employee of the United States or any agency thereof to perform a duty owed to a petitioner. A petitioner must demonstrate that: “(1) [his or her] claim is clear and certain; (2) the official’s duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997).
To establish whether a plaintiff has a “clear right”, courts must determine whether the plaintiff is within the “zone of interest” of the underlying federal immigration statute or, put it differently, whether the federal statute purports to protect the plaintiff’s interests.
For the second element, court have generally recognized that USCIS has a non-discretionary duty to adjudicate applications filed by non-citizens. However, while courts may force USCIS to adjudicate a petition or application, courts cannot order them to exercise their discretion in any particular manner. In other words, court can only force the agency to adjudicate a case, and not also to approve it.
Finally, a plaintiff must prove that no other legal remedy is available. In the context of a writ of mandamus against USCIS, a plaintiff must show that he or she has exhausted all possible administrative remedies before filing the lawsuit.
A Writ of mandamus petition often achieves the intended result before the U.S. Government even files an answer to your complaint.
In fact, in most cases, the government does not wish to litigate your case, and will offer to make a final decision on your pending case in exchange of a voluntary dismissal of your Writ of Mandamus petition.
Can the government retaliate against me if I file a Writ of Mandamus?
I have heard this question many times. When presented with the opportunity of going to federal court to get their case adjudicated, many people feel they might be retaliated by the U.S. government.
Of course, there is always a possibility. But in my experience, this is unlikely to happen. To date, I have not seen the government retaliating against any of my clients; not even against those with a criminal record.
Writ of Mandamus USCIS
If a U.S. Consulate or the USCIS have delayed your Green Card or Citizenship case for an unreasonable time, you can file a Writ of Mandamus in Federal District Court to force the U.S. Government to make a final decision.
Contact a New York Immigration Attorney if your application is delayed and you want to apply for a Writ of Mandamus.