Writs of Mandamus

You may be aware that immigration matters do not have a reputation for being resolved promptly. While extended wait times are common, some delays are more extreme than others. When the government has unreasonably delayed your immigration application decision for months or years, you may feel discouraged and frustrated. There is good news, though –– you may not be stuck waiting indefinitely. With the help of an immigration attorney, you may be in a position to sue the federal government. This lawsuit, known as a “writ of mandamus,” compels the government to adjudicate (or decide) your application. Through a writ of mandamus, you can enforce your right to receive a “yes” or “no” decision on your application within a reasonable time.

Lawsuits for Unreasonable Delays

A writ of mandamus is filed in a U.S. Federal District Court against a federal administrative agency. In the immigration context, the lawsuit may be filed against the Department of Homeland Security (“DHS”) and DHS’s sub-agency, U.S. Citizenship and Immigration Services (“USCIS”), as well as other entities like the State Department. The primary purpose of the lawsuit is to speed up the resolution of a pending immigration application.

Filing a writ of mandamus does not guarantee that your pending application will be granted. The U.S. District Court cannot force USCIS to rule in a certain way or to grant the relief you seek. Instead, the U.S District Court can compel the government to promptly make a decision on your case.

Frequently, the U.S. District Court will grant relief under the Administrative Procedures Act (“APA”). Congress, through the APA, requires federal agencies to act within a reasonable time. The APA’s “reasonable time” directives apply to adjudication of applications by DHS and USCIS. Thus, under the APA, a plaintiff may sue for USCIS’s unlawful failure to act on various immigration applications, including delays of naturalization and adjustment of status applications.

Writ of Mandamus Elements

If you want to succeed on a mandamus action, you must be able to establish three elements:

1. The plaintiff has a clear right to the requested relief;
2. The agency has a clear duty to perform the act at issue; and
3. There are no other available adequate remedies.

Plaintiff’s Clear Right to Relief

In order to establish a clear right to the requested relief, you should identify specific provisions in the Immigration and Nationality Act (“INA”) that provide the right to relief. The identified INA provision should clearly demonstrate that the agency owes you a duty and that you are within the zone of interests the INA provision intended to protect.

Two immigration situations are generally found to provide plaintiffs with a clear right to relief:

Naturalization

Becoming a naturalized U.S. citizen takes a substantial amount of preparation, resources, money, and time. Once you have completed all the necessary requirements on your end and filed your Form N-400, Application for Naturalization, the process is not over. You must wait for USCIS to conduct required interviews. After the interviews, you may still be waiting months or even years for a final decision from USCIS.

According to INA § 355(d), applicants for naturalization are entitled to a determination of whether their application is granted or denied. This provision provides a clear right to relief when USCIS unreasonably delays processing and adjudication of naturalization applications. Courts have found unreasonable delays to occur when USCIS fails to conduct the required interviews or when USCIS takes more than two years to render a final decision.

Adjustment of Status

Adjustment of Status is the process through which you may apply for a Green Card and obtain Lawful Permanent Residence from within the United States. After you file Form I-485, Application for Adjustment of Status, USCIS should grant or deny your application. While there are some justifiable reasons for delay, such as the unavailability of a visa number, other delays are unreasonable.

In the context of adjustment of status, unreasonable delays are particularly burdensome. If you are seeking adjustment of status, a prompt processing of your case is critical. When USCIS inflicts excessive delays, you may end up living in the United States without lawful immigration status.

Various federal district courts have concluded that INA § 245 provides petitioners with the right to have their applications for adjustment of status actually adjudicated. This provision is clear right to relief. While federal courts are barred from reviewing a grant or denial of an adjustment application, courts may review a delay in the adjudication process.

USCIS often argues that because it has discretion to grant or deny adjustment applications, its adjudication timeline cannot be reviewed by federal courts. While the agency does have wide discretion to determine “yes” or “no” on an application, USCIS does not have discretion to indefinitely fail to render such a decision.

In addition to naturalization and adjustment of status applications, a successful writ of mandamus may be brought in various immigration contexts so long as the plaintiff is entitled to a clear right of relief.

Sometimes, the INA does not provide for a right to relief or it expressly precludes a private right of action. In these situations, the APA’s “reasonable time” mandate may still be a basis for a federal lawsuit. A common example is the adjudication of asylum applications. The INA has a provision that prohibits actions to enforce asylum adjudications within the statutory timeframe. However, the APA’s “reasonable time” mandate may be a viable option for relief. The statutory timeframes act as evidence that the delay is unreasonable and entitles an applicant to relief under the APA.

DHS’s Duty to Perform

Typically, you must show that the government owes you a duty. In many situations, this inquiry is established in the same way you demonstrated your clear right to the requested relief.

The duty owed must generally be a nondiscretionary ministerial or mandatory duty. Notably, a writ of mandamus may also be used to force the government to exercise its discretion where it has thus far failed to act. For example, courts have determined that USCIS owes a duty to applicants to adjudicate adjustment of status applications in a reasonable timeframe.

A writ of mandamus is not appropriate every time the government is required by law to adjudicate an immigration application. The lawsuit should only be filed when USCIS fails to act within a reasonable timeframe.

You may be wondering what type of delay is considered unreasonable. The answer is, it depends!

Some statutes provide clear timeframes for adjudication deadlines. Although not every delay beyond the statutory deadline will automatically be considered unreasonable, such a delay may be evidence of unreasonableness.

Other immigration applications do not have a corresponding statutory deadline. In these cases, USCIS may not indefinitely delay a decision because USCIS has a nondiscretionary duty under the APA to avoid unreasonable delays in all adjudications.

When statutes do not expressly provide a deadline, courts vary in their determinations of unreasonable delay and determine unreasonable delay on a case-by-case basis. The lengthier the delay, the more likely it is to be unreasonable. A delay may also be unreasonable if its extreme duration makes a plaintiff ineligible for the applied for relief. USCIS provides website where you can view anticipated processing times. If a delay extends beyond the anticipated processing times established by the agency, then that may also evidence an unreasonable delay.

No Other Adequate Remedy

You may not receive mandamus relief when you have other adequate remedies available. Therefore, you must exhaust all other administrative remedies before filing a writ of mandamus. For example, if the INA provides an available and adequate remedy, you may not seek mandamus relief. Sometimes you may be excused from failing to exhaust all administrative remedies. Possible excuses include:

• substantial constitutional questions are present
• following the administrative process would be futile or would prejudice the plaintiff
• the agency is unable or unwilling to grant the requested relief

You also will not be granted mandamus relief if there are judicial options available or if the APA provides specific relief without requiring a separate writ of mandamus action.

Writ of Mandamus Outcomes

A writ of mandamus lawsuit challenging an unreasonable delay can lead to several outcomes.

Frequently, the act of filing a writ of mandamus serves as a not so gentle nudge to DHS. Once the lawsuit is filed, DHS may promptly decide to adjudicate your application and avoid the lawsuit entirely. If DHS renders a decision before it must respond to the lawsuit, the case is resolved.

In other instances, DHS will choose to litigate the writ of mandamus. DHS must respond to the complaint within 60 days by filing an answer or a motion to dismiss. A U.S. District Court may dismiss the lawsuit if you become ineligible for the requested benefit during the government’s unreasonable delay. In such a situation, the issue is considered “moot,” meaning there is nothing for the court to address because the issue is no longer relevant or timely.

If the judge agrees that DHS caused an unreasonable delay in deciding your application, the judge will order USCIS to expedite its decision in your case, normally within a particular timeframe. Ideally, a writ of mandamus will encourage DHS and USCIS to promptly approve your pending immigration application. But, there exists a chance that filing a writ of mandamus will result in a rapid denial of your application.

While a writ of mandamus does not guarantee success for your application, it can help you obtain peace of mind as it ends a prolonged and indefinite period of waiting.