You are currently viewing Writ of mandamus

If you’ve been waiting a long time for your US citizenship or residency application to be processed, a writ of mandamus may help.

Sometimes immigration cases can be delayed for a considerable amount of time. Therefore, if you are tired of waiting, you should consult with our New Jersey immigration lawyers for filing a writ of mandamus. 

What Is A Court Order?

A Writ of mandamus is a petition filed with a District Court requesting that an order be issued compelling an officer of the United States to perform their duty, as required by 28 U.S. law Code § 1361.

This statute provides that the writ of mandamus compels a US officer or employee, or any agency thereof, to discharge its responsibility to the plaintiff. 

How A writ of mandamus Can Unblock And expedite Your Immigration Case

In immigration, a mandamus is generally a civil lawsuit against the United States Citizenship and Immigration Services (USCIS) in Federal Court. 

  • This lawsuit asks the court to compel the immigration agency to make a decision on the immigrant plaintiff’s application or petition. 
  • In addition to USCIS, the injunction also allows you to file a lawsuit against other US agencies, such as: 
    • The Federal Bureau of Investigation (FBI).
    • The Department of Homeland Security (DHS), and 
    • US consulates or embassies.
  • The injunction can be used in cases where there has been an unreasonable delay or an illegal withholding of action. 
  • This type of action should be considered as a last resort, after other means have been fully explored. 

It should be noted that although the injunction may compel USCIS to expedite the processing of applications that have been delayed, it does not compel USCIS to grant a favorable outcome to applicants.

use of the writ of mandamus

Types Of writ of mandamus

There are two different types of mandamus:

  • Peremptory: It is a court order issued to USCIS to act in accordance with its legal duty. 
  • Alternative: It is a court order that forces USCIS to take a certain action, or failing that, show the judge why it does not have to obey. 

Although they are different types of mandamus, the order will force an action on the case. This is useful in immigration as USCIS officers usually have a legal duty to decide the immigrant’s case.

When Is A writ of mandamus Used In Immigration Cases?

When USCIS has not made a decision 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 lawfull remedies available.
  • USCIS has a clear duty to carry out the action that the alien has requested.

Filing a a writ of mandamus is often complicated for an immigrant. Therefore, it is essential to consult with an immigration attorney when the case is taking much longer than it should.

attorney carolina t. curbelo

Our Latina attorney Carolina T. Curbelo will be able to help you examine your situation and file a court order, if applicable, to expedite your petition. 

What Are Lawsuits for Unreasonable Delays?

Lawsuits for unreasonable delays are filed in Federal District Court against a federal administrative agency. The purpose of these lawsuits is to expedite the resolution of a pending immigration application.

  • Typically, the US District Court awards relief under the Administrative Procedures Act (APA). 
  • The APA law (5 US Code § 500) requires federal agencies to act within a reasonable time. Failure to do so may result in an individual suing these agencies for unlawful inaction.

What Types Of Cases Benefit From a writ of mandamus?

In general, individuals who experience excessive waiting time for any type of petition to USCIS can benefit from a mandamus. 

Filing an injunction can be beneficial for immigrants who are experiencing unreasonable delays in their immigration cases. For example, a US relative’s petition to the United States or employment, including naturalization, permanent residence, and adjustment of status.

In the most common cases where these delays occur, they are found in the following procedures:

Adjudication Of Form I-485

Through Form I-485, application for registration of permanent residence or adjustment of status, an immigrant can adjust their status to permanent resident and obtain a Green Card.

  • Generally, this form comes after the approval of an immigrant visa (Form I-140, petition for an alien immigrant worker) or a petition for a family visa (Form I-130, petition for an alien relative).
  • On some cases, the review of the I-485 form can take an excessively long time. Therefore, an applicant can take legal action against this.
  • Applicants may submit a preliminary “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment” to USCIS for a final decision on the case.
  • It should be noted that there is no time limit for USCIS to make a decision on the I-485.

Adjudication Of Form N-400

The process to obtain US citizenship through naturalization can be immediate or you may have to wait months or years for a final decision. 

  • In these US citizenship cases, USCIS has 120 days from the date of the interview to make a decision.
  • If USCIS has not made a decision after this time, 8 US Code § 1447 allows the applicant to file a writ of mandamus in Federal District Court.
  • Although the Federal Court orders USCIS to make a decision on the case, it will not necessarily be a positive one. Also, the Court will not review the citizenship application.

It should be noted that a judge can order USCIS to make a decision, regardless of whether the application is approved or denied. The writ of mandamus must be filed with the District Court that has authority over the applicant’s USCIS office.

mistakes when filling out the N-400 naturalization application

Are you a few days away from applying for naturalization? Before doing so, we invite you to read our article on mistakes when completing the N-400 naturalization application.

Are You Tired Of Waiting For A Resolution Of Your Case? Talk To Curbelo Law

If the months or years keep piling up while you wait for a resolution of your case, wait no longer. Through a court order, you can speed up the response time of your immigration case.

  • Aliens often fear that if they take action against a government entity, it will retaliate against them. However, this is not so.
  • One reason USCIS or the Department of State often unreasonably delays cases is that no court or other authority oversees their actions in such cases.
  • When a lawsuit is filed, a court with authority over the government agency will now oversee its actions (or lack thereof) in the immigrant’s pending case. 

That is why you should contact our law firm at Curbelo Law to discuss your delayed case. Attorney Carolina has more than 10 years of experience dealing with these immigration matters.