SHOULD I FILE A WRIT OF MANDAMUS?
Angela and Boris
Angela is a United States citizen. She is married to Boris who is a citizen of Macedonia. Angela filed Form I-130, Petition for Alien Relative on behalf of her alien spouse. Boris filed his Form I-485, Application to Register Permanent Resident or Adjust Status and is seeking to become lawful permanent resident of the United States as a beneficiary of the Form I-130 petition.
A few months after the filing, Angela and Boris appeared for an adjustment of status (green card interview) at the local USCIS office. On that date, the interviewing officer informed Angela and Boris that he had to continue the case due to a pending FBI check. Up to that point, Angela and Boris did not think their case was different from many others. Everything seemed fine and Angela expected her husband would become a lawful permanent resident. However, the interviewing officer did not approve the case and told the couple they should hear from his soon.
Where is my green card?
Unfortunately, it has been 4 months since the interview and the green card has not arrived. Angela and Boris now realize that there is a problem. Their I-130 petition and I-485 application have been pending for quite some time. They are wondering why USCIS has not adjudicated their cases. They feel the delay is unreasonable and for no good reason. They feel their life is on hold because Boris' legal status is on hold. Angela decides to schedule an infopass and check on their cases. She arrives at the local USCIS office and is greeted by the security officers. She shows them the infopass appointment and they quickly direct her to the infopass room. Angela submits her infopass appointment and is soon called to the counter. The immigration officer explains to Angela that the cases are still pending. Angela wants to know the reason for the long delay. The officer has no explanation. "Madam, your case is pending an FBI check." Angela feels desperate. A few weeks later, Angela scheduled another infopass appointment. The officer provided the same answer – "the cases are pending." Are you in Angela's position? If yes, please do not give up and keep reading below.
Writ of Mandamus
Government entities such as USCIS must act in accordance with the law. When USCIS unreasonably delays or fails to adjudicate applications, an applicant may be entitled to seek a writ of mandamus in federal court.
A writ of mandamus or simply a mandamus is a judicial remedy in the form of a court order directing a government official or entity to do fulfill their obligations or to act in accordance with the law.
Federal district courts 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. See 28 U.S.C. §1361. Upon reviewing the complaint for writ in the nature of mandamus, the petitioner's individual circumstances and any applicable law, the court may command the responsible government official or entity take an administrative action in accordance with the law.
For example, in the hypothetical situation described above, Angela and Boris may file a writ of mandamus requesting a court order 1) directing FBI to expeditiously complete the security check for Boris and 2) directing USCIS to adjudicate both Angela's I-130 Petition and Boris' I-485 application. If the court indeed determines that USCIS or any other government entity failed to perform its statutory duty in violation of the law, the Court will issue an order directing the government entity to take action or correct its previous actions.
Although USCIS handles millions of applications, the agency has managed to reduce the waiting time for applicants and their families. However, there are still cases that have been pending for years. If you case has been delayed for a long period of time for no good reason, you should consult an immigration lawyer and explore your legal options. Your immigration lawyer may be able to resolve the issues without filing a complaint for writ of mandamus in Federal Court. However, if you or your lawyer have exhausted all other options and your cases have not been adjudicated, it may be time consider filing a writ of mandamus.
***This blog is for informational purposes only. This blog is not and should not be construed as legal advice.