IF AND WHEN TO FILE A PETITION FOR A WRIT OF MANDAMUS
Let’s say that you filed your immigration application, you paid all the fees, you had your biometrics captured and, if the USCIS asked for it, you responded to its request for evidence (RFE). And, if necessary, you then had your interview. In 2013.
Of course, that was almost four years ago. You have made phone calls that achieved nothing, you went on InfoPass appointments, but you still cannot get a satisfactory answer to any of your questions. What are your options?
In some cases, it may be appropriate to file a lawsuit against the USCIS and other government agencies, based on the law known as the Administrative Procedures Act, or the APA. Among other things, it says that when an agency, such as the USCIS, is given a task to do by Congress, it has to do it, and within a reasonable time. Now, what is considered a “reasonable time” is of course subject to interpretation. Every case is different. An experienced attorney will be able to help you decide if a reasonable amount of time has passed since the time that you filed your application or were interviewed on your application.
Assuming the delay is unreasonable, the APA does give you the right to file a lawsuit. Typically, in this kind of lawsuit, a person will sue the Secretary of the Department of Homeland Security, the USCIS Director, the District Director of the field office in which your case is pending, (sometimes) the director of a USCIS Service Center, and quite possibly, the FBI (especially in security check delay situations.) The lawsuit itself is known as a petition for a writ of mandamus, which asks the federal district (“the Court”) to force a government agency to do something. In such a lawsuit, the individual asks the Court to order the USCIS to make a decision.
You do not have the right to ask the Court to approve your application. You only have the right to ask for a decision. That decision, from the USCIS, may be good or bad, but you may not just want to wait indefinitely for the USCIS to render its decision. Some of the Courts are of the opinion that they cannot even make a ruling on a mandamus action. In a typical writ of mandamus, however, the petitioner is asking the Court not to review the application that is pending before the USCIS, but the pace of the decision making process. In other words, the petitioner is arguing, “Your Honor, I filed an application for permanent resident status [for example] and the USCIS has done nothing with it for the last four years. I know you cannot tell the agency to approve it, but you can tell it to make a decision, because the agency has a duty to do so within a reasonable time, and to take four years to make a decision is unreasonable.”
Many Courts agree that while they cannot tell the USCIS to approve or deny an application, they can tell them to hurry up. However, some Courts say that if they cannot say anything about the decision, it makes no sense that they could say anything about the pace of the decision either. These Courts see the length of time to make a decision as part of the decision itself, and, to these judges, if a Court cannot review the decision, it cannot review the pace of the decision either.
Successful writs of mandamus work in an interesting way. Usually when someone wins a lawsuit, it is because the judge decides the facts and law in his or her favor. A petition for a writ of mandamus may achieve the intended result before the government even files an answer to the petition. Many of our clients, for example, came to us after having waited five years or more for a decision from the USCIS. We filed the mandamus action. The government attorney asked us for a brief extension of time to respond. We agreed. The government attorney then told us that the USCIS was ready to approve the application. We withdrew the petition. The government attorney avoids time consuming litigation and our client gets what he or she has wanted for a long time. In the end, everyone is happy.
But this is not always how it works. Sometimes the review of the file brought on by the lawsuit reveals a problem in the alien’s immigration history. If something like that is found, the client may actually have his or her application or petition denied. As you can see, filing a petition for a writ of mandamus does not always produce positive results. It is a complicated option, one that a competent attorney must analyze. As with any option, it has benefits, and it has risks. And these benefits and risks are not the same for for each case.
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