What is a Writ of Mandamus and how can I file it?

A writ is defined as a formal, legal document. In Latin, the word mandamus means “we command.” By definition, a writ of mandamus is a formal, legal document that commands a lower court or a government official to do something.

A writ of mandamus can be issued in order to compel a government official to do something. In immigration, a mandamus is generally a civil lawsuit against the United States Citizenship and Immigration Services (USCIS) or a U.S. Consulate in Federal Court.

Sometimes the U.S. Citizenship and Immigration Services (USCIS) can cause a delay because of requests for evidence, lost files, or more common reason known as FBI security checks. Nevertheless, USCIS has a mandatory legal duty to make a decision on all immigration applications, therefore if the USCIS have delayed your Green Card or Citizenship case for an unreasonable time, you can file a Writ of Mandamus in Federal District Court to force the USCIS to make a final decision.

Writ of Mandamus Elements

If you want to succeed on a mandamus action, you must be able to establish three elements:

1. The plaintiff has a clear right to the requested relief;
2. The agency has a clear duty to performthe act at issue; and
3. There are no other available adequate remedies.

NOTE: You may not receive mandamus relief when you have other adequate remedies available. Therefore, you must exhaust all other administrative remedies before filing a writ of mandamus.

Delay on Adjudication of Form I-485

An unreasonably extended review for I-485 application may require legal actions. You as the applicant may send a preliminary “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgement” to USCIS to seek a final decision on the case. Nonetheless, note that there is no timeline for USCIS to make a decision on I-485, but we say any delay over two years is usually considered as unreasonable.

Does a Writ of Mandamus really help?

Yes! The Mandamus Act, 28 U.S.C. § 1361, provides that district courts shall have jurisdiction over any action in the nature of mandamus, and may compel an officer or employee of the United States or any agency thereof to perform a duty owed to a petitioner. As such, a writ of mandamus petition often achieves the intended result before the U.S. Government even files an answer to your complaint. This is mainly because the government does not wish to litigate your case and will offer to make a final decision on your pending case in exchange of a voluntary dismissal of your writ of mandamus petition.

If the judge agrees that the USCIS caused an unreasonable delay in deciding your application, the judge will order USCIS to expedite its decision in your case, normally within a particular timeframe. Ideally, a writ of mandamus will encourage DHS and USCIS to promptly approve your pending immigration application. But, there exists a chance that filing a writ of mandamus will result in a rapid denial of your application.

Can the government retaliate against me after I file a Writ of Mandamus?

You may feel that you might be retaliated by USCIS if you file a writ of mandamus. Although there is always a possibility, but it is very unlikely.

Contact our office if your application is delayed and you want to file a Writ of Mandamus.