Writ of Mandamus to Expedite Immigration Cases
Updated on 05/12/2023
The United States immigration system can provide a person with great joy. United States immigration benefits literally can change a person’s life. For example, a green card can enable a person to permanently live and work in the United States.
Unfortunately, the United States immigration system also can provide a person with great frustration. Based on an overflow of cases and administrative bureaucratic delays, it can take an interminable amount of time for a person to actually receive United States immigration benefits.
One technique that a person can use to possibly accelerate the receipt of United States immigration benefits is a writ of mandamus.
This article examines the topic of writ of mandamus.
What is a Writ of Mandamus?
To understand a writ of mandamus, you need to understand the two words, “writ” and “mandamus”.
A writ is an orderissued by a court. It is a judicial remedy.
Mandamus derives from Latin, meaning “we command”.
Thus, a writ of mandamus is an order issued by a court that commands some action.
The authority for writs of mandamus under United States law is 28 U.S. Code Section 1361, known as the Mandamus Act. It provides, “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff”.
Writs of mandamus apply in various areas of the law, including immigration law.
In the immigration law area, the Mandamus Act is used to command action by animmigration government agency or official at such immigration government agency. Specifically, a writ of mandamus is used when there has been a certain delay in the processing of an immigration application by U.S. Citizenship and Immigration Services (“USCIS”). The writ of mandamus would be an order by a court to command USCIS or an official at USCIS to complete the processing of the immigration application and rule on the case.
What Immigration Cases Can be Benefited by Writ of Mandamus?
Almost every type of immigration cases can use writ of mandamus to expedite their processing at USCIS if such cases are experiencing abnormal delay. Cases abnormal delayed in U.S. consulate or embassy can be benefited by writ of mandamus as well.
As such, writ of mandamus can be used in all types of green card applications, I-130 family-based immigrant petitions, I-140 employed-based immigrant petitions, I-485 adjustment of status applications, N-400 naturalization applications, work visa petitions, consular processing for immigrant visa, EAD applications, I-589 asylum petitions, etc.
Requirements of Filing a Writ of Mandamus
A recent court decision, Lovitky v. Trump, 949 F.3d 753 (D.C. Cir. 2020), refers to a prior case and states that “[a] court may grant mandamus relief only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff”. Accordingly, the following requirements must be met when filing a petition for writ of mandamus.
Clear Right to Relief
The “clear right to relief” requirement in an immigration writ of mandamus case generally examines whether the plaintiff seeking the writ of mandamus is within the “zone of interest” of the relevant statute – the United States Immigration and Nationality Act. Specifically, the court analyzes what interests the applicable statutory provision was intended to protect and whether the plaintiff’s interests are among these interests.
Preceding cases where courts have found the “clear right to relief” requirement exist includes:
- I-485 adjustment of status applications.
- N-400 naturalization applications.
- I-589 asylum applications.
- I-360 Special Immigrant Juvenile Status petitions. With a Special Immigrant Juvenile Status petition, an unmarried person under 21 years of age who needs the protection of a juvenile court because of being abused, abandoned, or neglected by a parent may be able to obtain a green card.
- I-360 Special Immigrant Visa petitions for certain Afghan or Iraqi nationals working for the United States government. Such a Special Immigrant Visa petition may enable a qualified Afghan or Iraqi national to obtain a green card.
The “duty” requirement in an immigration writ of mandamus case generally examines whether the defendant government agency or official owes a duty to the plaintiff.
Courts have recognized that if a plaintiff has the right to apply for an immigration benefit, USCIS has a duty to adjudicate the immigration benefit application. This duty can exist even if the ultimate decision to grant the immigration benefit is discretionary with USCIS.
The duty must be mandatory or ministerial and must be owed specifically by the defendant to the plaintiff.
No Other Remedy
The “no other remedy” requirement in an immigration writ of mandamus case generally examines whether the plaintiff otherwise can obtain relief without a writ of mandamus. This requirement is based on a concept applied in many other areas of law – you must exhaust all available administrative remedies before you can obtain relief in court.
For most immigration cases, in order to meet the requirement of “no other remedy”, when your application or petition has been outside USCIS’ normal processing times, you are supposed to have at least one case inquiry to USCIS and at least one case inquiry through a congressman. For some immigration cases like I-589 asylum applications, USCIS doesn’t provide clear timelines for adjuration deadlines. And for some applications or petitions, USCIS’S normal processing time is not reasonable at all. In these situations, an experienced immigration attorney may advise you whether you have exhausted all available administrative remedies before you can file a writ of mandamus lawsuit in a federal court.
In addition, as described in the next section of this article, while it is necessary for the plaintiff in an immigration writ of mandamus case to establish that the “clear right to relief”, “duty”, and “no other remedy” requirements are met, these requirements alone may be insufficientfor a court to grant a writ of mandamus.
How to File a Writ of Mandamus?
A writ of mandamus action is filed in United States District Court. This is a Federal court, and not a state court.
There are 94 active United States District Courts. Between one and four United States District Courts are located in each state. There is also a United States District Court in the District of Columbia and in various United States territories.
In what United States District Court should a plaintiff file a writ of mandamus complaint?28 U.S. Code Section 1391(e) is authority that proper venue for a writ of mandamus action is “any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred. . . , or (C) the plaintiff resides”.
Certain courts have recognized that the above-described “clear right to relief”, “duty”, and “no other remedy” requirements are necessary, but not sufficient, to obtain writ of mandamus relief. In the case of American Hospital Association v. Burwell, 812 F.3d 183 (D.C. Cir. 2016), the court refers to two prior decisions and states, “The remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances. . . . [A] court may grant relief only when it finds compelling equitable grounds”. In addition, in the case of Inre Core Comm., Inc., 531 F.3d 849 (D.C. Cir. 2008), the court refers to two prior decisions and states that “issuance of the writ [of mandamus] is an extraordinary remedy” and that it must decide “whether the agency’s delay is so egregious as to warrant [a writ of] mandamus”. These courts show that a writ of mandamus complaint also may need to include “extraordinary” evidence of “compelling equitable grounds” and “egregious” conduct to be successful.
It should also be noted that if your immigration case is ruled on before your writ of mandamus complaint is heard by the court, your complaint will likely be dismissed for mootness.
How Much Does it Cost to File a Writ of Mandamus?
An immigration writ of mandamus is obtained through litigation in a federal court. Federal court litigation is complex and should be handled by an attorney. Thus, the biggest cost incurred in filing an immigration writ of mandamus is legal fees.
The specific amount of legal fees that you will need to pay to obtain an immigration writ of mandamus will vary based on the specific issues in your case and the billing rate of your attorney. As a best estimate, you should expect to pay to between $5,000 and $10,000, for legal fees in a writ of mandamus case.
In addition, there will be court costs incurred in filing the immigration writ of mandamus action (generally $400 to $500).
What Can a Writ of Mandamus do and Not do?
It is important to understand what a writ of mandamus can do and what it cannot do for a person seeking an immigration benefit under the United States immigration system.
If the litigation is successful, a writ of mandamus can mandate that USCIS or an official at USCIS take an immediate action to your application for immigration benefits within a certain period (generally within 90 days). Depends on your application type and application stage, such immediate action can be schedule an interview or reach a final decision on your application. Thus, the frustration of not receiving a decision on your application will be over. The writ of mandamus will give you an answer on your case.
However, if the litigation is successful, it does not mean that you will receive a favorable answer in your application. While USCIS will process your application, there is no guarantee that USCIS will approve your application. Successful writ of mandamus litigation will not change the facts and circumstances of your case. Unfortunately, successful writ of mandamus litigation does not convert a case with “bad” facts and circumstances to a case with “good” facts and circumstances.
The point is that a writ of mandamus only can assure the quicker processing of an immigration application. It cannot assure the favorable processing, and could even result in the unfavorable processing, of an immigration application. As a result, based on what a writ of mandamus can do and cannot do for a person seeking a United States immigration benefit, and given the costs incurred from filing writ of mandamus litigation, a person should only proceed with writ of mandamus litigation after carefully considering its various possible outcomes with an immigration attorney.
There is one other aspect of what a writ of mandamus cannot do, and this is a positive impact for the immigrant. Some persons are concerned that filing writ of mandamus litigation can cause an adverse retaliation by USCIS. Such perspective would be a mistaken assumption. There is no evidence that writ of mandamus litigants have their applications for immigration benefits denied simply based on the filing of the writ of mandamus litigation. Writ of mandamus litigation is simply an additional part of an already filed immigration case.You are simply asking the government to “do its job” and process your immigration application.
The government is viewed by many United States persons in a mixed manner. On one hand, people appreciate the various benefits, from education financial aid to Social Security, that the government can provide. On the other hand, people are upset with the bureaucratic inefficiencies, from the Department of Motor Vehicles to the Internal Revenue Service, that arise with the government.
Immigrants also view the government with similar mixed feelings. On one hand, immigrants are happy with the ability to obtain a green card and live and work in the United States. On the other hand, immigrants are unhappy with the bureaucratic problemsthat can cause long delays in the processing of immigration applications.
A writ of mandamus can address these bureaucratic problems and allow an immigrant to obtain a green card, citizenship or other immigration benefits in a shorter amount of time. While it is true, as described above, that a writ of mandamus cannot guarantee the approval of a green card, citizenship or other immigration-related applications, if you have a favorable case that is definitely only not being approved because of administrative bureaucratic delays, a writ of mandamus can be a critical document that allows approval of your immigration applications. As such, writs of mandamus should be strongly considered by immigration applicants who are definitely only not yet receiving their immigration benefits because their favorable cases await processing.
Through DYgreencard.com, you can find a skilled immigration attorney who can help you expedite your immigration cases by writ of mandamus. Contact us now at 888-919-8555 or [email protected] or schedule an appointment online to have a free consultation!