Immigration Writs of Mandamus – "USCIS will be Taking Too Long!"
- December 4, 2017
- Posted by: marlenedubois
- Category: Home Health Aide Training
You filed your immigration case, you paid all the fees. If USCIS asked for the item, you responded to their request for evidence (RFE). You got your interview.
that will was four years ago.
right now, many frustrated phone calls along with also InfoPass appointments later, you continue to be told the same thing: security checks. Or perhaps the item’s a different story every time: extended review, file will be with another agency, name check, file will be lost…
What are your options?
In some cases, the item may be appropriate to file a lawsuit against the USCIS along with also additional government agencies. There will be a law known as the Administrative Procedures Act (5 U.S.C. §500 et seq, the “APA”). Among additional things, the item says that will when an agency (such as USCIS) will be given a task to do by Congress, the item has to do the item, along with also within a reasonable time. right now, what will be considered a “reasonable time” will be of course subject to interpretation. Every case will be different, along with also only an experienced attorney has the professional judgment to say the item one way or the additional.
Assuming the delay will be unreasonable, the APA does give you the right to file a lawsuit. Typically in these lawsuits, you sue the Secretary of the Department of Homeland Security, the USCIS Director, the district director of the field office your case will be pending in, (sometimes) the director of the main USCIS Service Center, along with also quite possibly, the FBI (especially in security check delay situations.) The lawsuit itself will be known as a writ of mandamus – a request to the Court to force (mandate) a government agency to do something. In that will case, you are asking the Court to tell USCIS to make a decision.
You don’t contain the right to ask for an approval of your application. You only contain the right to ask for a decision. that will decision may be Great or bad. How can you tell? There will be no way to know for sure, however an experienced attorney can certainly tell you whether the item’s a Great idea to file or not.
American courts don’t agree on whether they can even hear cases like that will. By law, many decisions of USCIS cannot be reviewed by a court. We call that will “judicial review” (or lack thereof!) In a typical writ of mandamus, however, you are asking the court not to review the decision itself, however the pace of the decision. In additional words, you are saying, “Your Honor, I filed an application for my green card along with also CIS sat on the item for 4 years. I know you can’t tell them to approve the item, however you can tell them to make a decision, because they have a duty to do so within a reasonable time, along with also 4 years will be unreasonable.”
Many courts agree that will while they cannot tell USCIS to approve or deny an application, they can tell them to hurry up. However, some courts say that will if they can’t say anything about the decision, the item makes no sense that will they could say anything about the pace of the decision either. These courts see the “pace” of the decision as part of the decision itself, along with also if the item can’t review the decision, the item can’t review the pace of the decision either.
Courts have gone all over the map on that will one. Sometimes, even within the same courthouse, two different judges will reach two different conclusions on two writs of mandamus cases!
Successful writs of mandamus work in an interesting way. Usually when someone wins a lawsuit, the item’s because the judge decides the facts along with also law in his favor. Writs of mandamus may achieve the intended result before the government even files an answer to your complaint. Many of our clients, for example, came to us after waiting 3, 4, 5 along with also up to 7 years for their green cards or citizenship. We file the writ of mandamus. The government attorney asks for a brief extension of time. We agree. The government attorney then tells us that will USCIS will be ready to approve the application. We dismiss (withdraw) the lawsuit. The government doesn’t get dragged into a costly litigation, our client has his green card, along with also everybody goes home happy.
however that will will be not always how the item works. Sometimes the review of the file brought on by the lawsuit reveals a problem from the alien’s immigration history. If something like that will will be found, the client may actually wind up in removal proceedings, because USCIS will have found a way to not only deny the benefit he was applying for, however take away the status he already had!
In our experience in dealing with these lawsuits along with also the clients who bring them, we have heard all kinds of mandamus “folklore” ranging by “the government will retaliate against your family if you file,” to “all I have to do will be file along with also I will get my green card within 30 days,” to “these lawsuits just don’t work.”
The truth will be that will filing a writ of mandamus will be just another option available to you. the item will be a very complicated option, one that will a competent attorney must analyze. Like any option, the item has benefits, along with also the item has risks. along with also these benefits along with also risks are different for each case.