Seattle Immigration Lawyer | Forcing DHS to Act, a Brief Look at Mandamus Actions

In general, a “mandamus” is a written order issued by a court commanding a lower court or government officer to perform mandatory or purely ministerial duties correctly. In the immigration context, a person may file a mandamus petition in federal district court to force a DHS officer or other agency officer to perform a nondiscretionary duty, such as ordering USCIS to adjudicate an application or petition that has been unreasonably delayed (28 U.S.C. §1361).

In one mandamus action that was granted, the court ordered the INS to adjust a diversity lottery applicant prior to the end of the fiscal year. In another mandamus action, the court denied the USCIS’s motion to dismiss a mandamus petition that was brought to compel adjudication of an adjustment of status application, and the court rejected the government’s claim that the time that USCIS and the FBI take to complete the name check is per se reasonable. In an example of a case where mandamus was denied, one court held that a 3-year delay in an adjustment of status was not so extraordinary that it required court intervention.

In a mandamus action, the petitioner must show:

(1) a clear and certain claim;

(2) that the duty owed is ministerial and so plainly described as to be free from doubt; and,

(3) that no other adequate remedy is available.

(Belegradek v. Gonzales, 523 F.Supp.2d 1364 (N.D. Ga. 2007)).

According to the nonprofit advocacy group, the American Immigration Council,* the following tips should be considered when bringing a mandamus action:

(i) Request that the court order USCIS to adjudicate the application within a certain time frame, such as 30 or 60 days (otherwise the court may not impose any deadline!);

(ii) Request that the court maintain jurisdiction over the action after granting mandamus relief (so that, if necessary, you can return to the same court to seek enforcement of its order without having to bring a new action), or alternatively, request that the court require USCIS to provide the court with periodic progress updates; and,

(iii) If you know or suspect that security checks are causing the delay, name the FBI as well as USCIS in the petition so that the court has jurisdiction over both agencies.

If you think that your immigration application is taking too long, it is worth asking an experienced immigration attorney about the possibility of bringing a mandamus action in federal court. Sometimes your only option is to sue an agency in order to force it to do its job.

*I have paraphrased the three suggestions above from the American Immigration Council. See http://www.legalactioncenter.org/clearinghouse/litigation-issue-pages/mandamus. I have no affiliation with this nonprofit.