Writ of Mandamus Lawyer – Immigration Lawyer Suing USCIS
Forcing USCIS to take Action on your Case
Does your case qualify for Writ of Mandamus?
Typically, clients come to us after they have been waiting a long time for a decision on their case, and after they have made numerous inquiries with USCIS (or the Consulates/Embassies) themselves as well as through their attorneys. The response that they receive is almost always a generic response stating that their case is currently “pending” or is under the “average processing time.” Many of our clients have even gone to their congressman’s office to help them inquire; however, this often results in the same response, although they provide it in a letter form. Thereafter, either through their own incomplete research, or through a consultation with an inexperienced attorney, these clients mistakenly believe that their case does not qualify for a writ of mandamus lawsuit because it is under the average processing time- THIS IS NOT TRUE! Over the last decade, in numerous cases where the application or petition has not been pending for over the so-called “average processing time” published by USCIS, we have been successful in forcing USCIS and DOS to take action. Read below for an explanation as to why this “average processing time” is not the decisive factor.
What if my case is under the “average processing time?”
Recently, USCIS has increased the “average processing time” they report online to try to avoid inquiries and lawsuits from less informed clients and their lawyers. However, the Courts do not only look at the “average processing time” reported by USCIS, among other factors, they look at the following: 1) Has Congress provided a timetable for the agency (180 days in immigration benefit cases under 8 U.S.C. § 1571); 2) is the health or welfare of the applicant/petitioner at stake; 3) does the agency have a higher or competing priority; and 4) is the applicant/petitioner prejudiced in any way (do they miss out in an opportunity such as a priority date that is current or being with their family member). Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984). Usually, these factors work in our clients’ favor, even when their cases are within this unreasonable “average processing times” reported by the agency. Utilizing our knowledge of what the courts consider, we strengthen our clients’ complaints with allegations that highlight the unique circumstances our clients are in because of the USCIS delay.
What can filing a Mandamus Complaint do for your case? How long does it take?
A Writ of Mandamus action is a lawsuit filed in federal court asking the court to issue an order compelling the government to act, or refrain from acting, as required by law. In the immigration context, a Mandamus action against USCIS (or the Department of State) is a civil suit in federal court asking the court to compel the immigration agency to render a decision on the plaintiff’s petition or application. In addition to filing suit against USCIS, other agencies may be included as named defendants such as the Federal Bureau of Investigation, (FBI) U.S. Consulates and Embassies, and other branches of the Department of Homeland Security (DHS). In the majority of our mandamus cases, we are able to get USCIS/DOS to issue a decision within 45 to 90 days of filing the lawsuit. We are able to force USCIS/DOS into a settlement due to our reputation for litigating cases all the way to trial (when needed), as well as our ability to make strong legal arguments along with allegations to show that our clients’ cases merit the issuance of a Writ of Mandamus by the court.
Can the government retaliate against you for filing the lawsuit?
Often, clients come to us with a strong hesitation due to the fact that they are, in essence, suing the government. They feel that if they file an action against a government entity, the entity will retaliate by surely denying their petition or application. However, this is the exact opposite of what happens. In fact, the reason USCIS/DOS unreasonably delay cases without any real answers as to the reasons is due to the fact that no court or other authority with power is overseeing their actions as to the client’s case. By filing a lawsuit, a court with authority and jurisdiction over the agency is now overseeing the agency’s actions (or lack of actions) on the case. Whether the agency likes it or not, they will have to do their job, and do it correctly now. Suing the government entity brings their excessive delay out in the open and subject to greater scrutiny. If anything, this type of action would likely help ensure that any decision USCIS makes is in accordance with the law. As such, it is a misguided assumption that USCIS may retaliate if a Writ of Mandamus is filed against them.
Contact the JEELANI LAW FIRM to discuss your delayed case.