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 many petitions in Federal Court on behalf of clients seeking to compel USCIS to make a final decision on their cases.
Delay on Adjudication of Form N-400
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 Mandamus action, the petitioner asks the Federal Court to order the USCIS to make a determination on the case, but not necessarily a positive one. The Court will not be reviewing the application for citizenship. On the contrary, the judge may order the USCIS to make a decision by either approving or denying the case. The Mandamus action must be filed to the Federal District Court which has authority over the applicant’s USCIS office. In most cases, the District Court transfers the case back to the USCIS with specific orders to make a decision on the application before a specific case.
Delay on Adjudication of Form I-485
Form I-485 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 I-485 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 I-485, even if the Federal Courts have generally said that any delay over two years is unreasonable.
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).
A Writ of mandamus petition often achieves the intended result before the U.S. Government even files an answer to your complaint.
There are two different kinds of writ:
- Peremptory: A court order to USCIS to perform an act the court finds is an official duty required by law.
- Alternative: A court order that requires USCIS to obey to take a certain action, or show cause at a hearing why it should not have to obey. In this kind of writ, the opposing party may argue against the writ.