A Writ of Mandamus is a lawsuit filed in the U.S. Federal District Court. Almost all immigration cases are eligible to use the writ of mandamus to request an order compelling an immigration agency of the United States to perform their duty, as required by 28 U.S. law Code § 1361, such as the adjudication of a long-pending visa application or petition, or to expedite their processing if such cases are experiencing an unreasonable delay. When it is both your “right” and the “duty” of government agencies to have a final determination on your case, you can file a Writ of Mandamus lawsuit.
The government agencies have a non-discretional legal duty to complete the processing of applications within a reasonable time. According to 8 U.S.C. §1571(b), Congress has indicated that “processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” There may be many reasons for unreasonable delays in your immigration cases, but when a government agency delays in issuing a decision or adjudicating an application, a Mandamus lawsuit can be filed in the U.S. Federal District Court to compel action where there has been an unreasonable delay that causes harm to you or any other applicant.
It is important to note that when a mandamus action is filed, the court does not have the power to approve or reject a case based only on its merits; instead, it only compels the government agency with jurisdiction over your application to act. No law or strict rule dictates how long someone has to wait before filing a lawsuit. However, it is appropriate to consider taking such action if your application has been pending for longer than 12 to 24 months or is time-sensitive.
When filing a petition for a writ of mandamus, you (a petitioner or applicant) must show or establish the following-
You Have a Clear Right to Relief
The relief you’re requesting is not an order granting the benefit but rather an order requiring the agency to decide on your visa application. The Administrative Procedures Act (APA) clearly states that if a visa decision has been delayed for an unreasonable amount of time, the applicant can file a lawsuit called the “Writ of Mandamus” in federal courts of the United States. In the lawsuit, you can ask a federal judge to order the Executive Branch (including USCIS and the Department of State) to decide or adjudicate the case in a few months.
There is a Clear Duty on the Agency to Perform the Act
If a person has a right to apply for a benefit, then the agency has a clear duty to act on the application. The duty to act is often reflected in regulations, which generally require that the agency “shall” issue a decision. It is also relevant that Congress intended for USCIS to establish fees in an amount that covers the cost of adjudicating applications. Suppose USCIS charges and accepts a filing fee in an amount sufficient to cover its costs of adjudication. In that case, it cannot reasonably turn around and assert that it has no duty to adjudicate the application. In turn, the government is obligated to decide a case within a “reasonable” time. These obligations and the judicial power to enforce these obligations are explicitly stated in the law (28 U.S.C. § 1361 and the Administrative Procedures Act at 5 U.S.C. §§ 702, 706).
You Have Exhausted All Available Remedies
The Writ of Mandamus is known as an “extraordinary writ.” This is because it is meant to address extraordinary issues not covered by other legal remedies. It also means that when no other adequate legal remedy is available for you to avail yourself of unreasonable delay in immigration cases and you have exhausted all possible administrative remedies, you are eligible for a Writ of Mandamus.
In conclusion, A Mandamus lawsuit is a legal remedy to speed up your immigrant application. However, there are instances in which a writ of mandamus may not be appropriate. For example, it has only been two (2) months since the immigrant visa interview and remains pending adjudication. In that case, it is doubtful that a court would find this delay unreasonable. It is also important to note that the government agency cannot retaliate against you for filing a mandamus lawsuit. The government tends to be more cautious in mandamus lawsuits because it knows it may be accountable to a judge if it acts in bad faith. Furthermore, one additional benefit of the lawsuit is that it is more likely to ensure a proper application of the law because a neutral third party is involved.
