Publications

January, 2008

FAST ACTION FOR IMMIGRATION DELAYS

Individuals who have experienced delays in the processing of their immigrant visas or naturalization applications, may use Mandamus to resolve the delay. We have considerable success with this remedy.

Over the past two to three years, the Immigration Service has not fulfilled its responsibilities to promptly schedule immigration and naturalization interviews.

Mandamus may be invoked in the Federal Courts to compel an officer or employee of the United States Citizenship & Immigration Services (USCIS) or any other governmental entity to perform a duty owed to a person. The Immigration Service has an obligation to faithfully discharge its administrative duties; if it fails to do this, it may be brought into a legal action in Federal Court by the aggrieved party.

An action of Mandamus in Federal Court requires a showing that:

1. There is a clear and certain claim;
2. That the duty owed by the Immigration Service, its employees and agents is ministerial; that is, that the issue involved does not require an exercise of discretion, that the duty owed to an individual is so clearly prescribed that there is no doubt as to the validity of the claim;
3. There is no other adequate remedy available.

The most common use of Mandamus petitions filed against the USCIS is to compel the adjudication of petitions. Mandamus actions also may be brought against Consular Officers who fail to make a decision on a visa application. While the Court in the Mandamus action will not consider the rightness or the wrongness of a decision, the Court does have the power to have the Immigration Service or a Consulate make a prompt decision.

Mandamus actions have often been used in other contexts. For example, this remedy might be used to compel deportation proceedings wherein a detainee who is incarcerated could argue that he is being detained indefinitely and wants the Court to insist on a prompt hearing.
Or a U.S. citizen mistakenly deported could seek prompt review by a Federal Court of his entitlement to citizenship.

The plaintiff must show in these proceedings that he/she has exhausted all remedies before bringing this action. For example, when a proceeding for asylum is still before the District Director, a Mandamus petition would not lie as all remedies have not been exhausted. Also the Courts would deny relief in a lottery case because the Court does not have authority to award a diversity visa beyond a fiscal year. The Court here would deny Mandamus because by the statute no relief could be granted beyond the fiscal year.

If you need help or advise, call us at 212-944-9420.

Our assistance is only a phone call, or e-mail communication away!

New York Immigration Lawyers > Immigration Publications > January 2008