What Is a Writ of Mandamus?
A writ of mandamus is a legal document that orders a public authority to perform or abstain from performing a particular action, issued by a court having jurisdictional power. The remedy of a writ can be availed by an aggrieved person for the violation of a right against which a public authority had a duty to perform or abstain from performing a certain act.
There are five types of writs as enlisted below:
- Habeas Corpus
In this article, we are going to discuss the efficacy of a writ of mandamus in cases relating to immigration laws and procedures.
Types of immigration cases where mandamus petition can be filed
There are no restrictions on the type of visa or immigration application or petition. If applying for a visa, any visa category is appropriate for such a lawsuit: nonimmigrant visas such as B visitor, E treaty trader or investor, F student, H professional employment, K fiancée, L intracompany transferee, O extraordinary ability, and other nonimmigrant categories, as well as immigrant visas such as for a spouse, parent, or other family members, EB-1 extraordinary ability, EB-2 national interest waiver, EB-3 workers, EB-5 investor immigration, Diversity Lottery, and special immigrant visas, such as Afghan translators and religious workers. If you submitted a petition or application to USCIS, there are no restrictions on the category: naturalization (form N-400), adjustment of status (I-485), family immigration (I-130, I-751), fiancée (I-129F), employment-based nonimmigrant (I-129) and immigrant (I-140, I-526, I-829), and special immigrant categories (I-360).
While it can be helpful to have a compelling reason or purpose for applying for the visa or immigration benefit, it is not mandatory. In other words, a 3-year delay in processing a B visitor visa to visit friends in the US is more likely to have a successful outcome than a 4-month delay in processing a fiancé visa.
When is it ideal to file a Writ of Mandamus in Immigration Cases?
When USCIS has not decided on an immigration case for a reasonable amount of time, filing a mandamus should be considered. However, to submit one, the following criteria must be met:
- Have a pending immigration case.
- Have a clear right to relief.
- There are no other lawful remedies available.
- USCIS has a clear duty to carry out the action requested by the alien.
A mandamus is typically issued when an officer or other authority is compelled to perform a duty and fails to do so despite a written demand. A writ of mandamus will only be issued to overturn an unlawful order. A mandamus lawsuit has the power to compel an administrative agency to take action. It cannot order the administrative agency to make a certain decision. This lawsuit must be filed in U.S. District Court. If successful, a federal judge will order USCIS to issue a quick decision on the applicant’s case. Filing a mandamus action is serious. Often, just filing this action in the U.S. District Court results in USCIS issuing a decision to avoid further litigation.
Consider a situation where the USCIS has not responded to a properly submitted immigration application within a reasonable time. In that situation, the petitioner or applicant may file a Writ of Mandamus in the US federal court that has jurisdiction over them. It can be a common scenario for applicants who have applied for asylum, a green card, or US citizenship, where they have only received a receipt from USCIS or a biometrics appointment, and who have given the interview and are waiting for the decision, These applicants who experience unreasonable delays in the adjudication of their immigration applications and who have properly filed their applications and supporting documents have to go through horrendous delays at USCIS, with very little information from USCIS about the status of their applications, with many under “administrative review.” This results in families being separated, applicants being unable to work, and most importantly, the stress of an unresolved immigration case.
Applicants in these situations are often unable to continue living productive lives because their immigration benefits are still on hold or “pending.” In some cases, USCIS will simply allow an application to remain pending indefinitely.
It’s important to note that a Writ of Mandamus does not guarantee visa approval. It only helps to ensure that USCIS decides on the applicant’s immigration case in a “reasonable amount of time and not be delayed further. It can help in taking quick action.
The procedure of filling the mandamus petition
A litigating party should consider various methods to resolve the problem before filing the Writ of Mandamus. Filing a Writ of Mandamus is to be utilized as a last resort after all other options have been exhausted.
First, if the applicant’s case has gone beyond the stated processing time, an applicant should make inquiries with the USCIS directly. The processing time is published on USCIS’s website. The applicant can fill out the form and send a copy of the complaint that the applicant intends to file along with a letter requesting action within thirty days. This letter should also include the details of the applicant’s previous efforts to contact the USCIS about the delay in processing. This step will often have the effect of prompting USCIS or the consulate to begin processing the application.
After the lawsuit is filed and properly served, the Federal Judge will hold a conference with the concerned parties in an attempt to resolve the dispute. A trial will then be scheduled and may take several months as Federal courts have vast caseloads. The court will review the matter and may issue an order requiring USCIS to adjudicate the application within a specific period of time (i.e. 30 to 90 days).
Note: The court may also dismiss or terminate the lawsuit if it appears that the applicant does not meet the requirements for the petition/application or if it believes the USCIS’s delay is reasonable, necessary, or permissible. In a rare case scenario where the USCIS fails to act upon the Federal court’s order, the agency could be held liable for contempt of court. Therefore, while a Writ of Mandamus may yield to adjudication of the applicant’s case, it does not guarantee a favorable result, and consequently, the applicant needs to be carefully considered prior to filing.
If the applicants have an immigration case that has been pending for over a long time, they should consult an immigration attorney to initiate the process of filing a Writ of Mandamus to force the USCIS to make a decision. Under the Administrative Procedures Act (5 U.S.C. §500 et seq, the “APA”), individuals can file a type of lawsuit or legal complaint in federal court against USCIS to force or mandate an immigration decision.