Pending Immigration Matters - Federal Court, Mandamus Relief

Mandamus, is a Latin word which translates as “We Order”. It is an order from a Superior Court to a lower court or tribunal or public authority to perform an act which is within the scope of its authority. ( Pending Immigration Matters)

In the immigration context, it is a writ issued to the relevant agency (usually USCIS-U.S. Citizenship and Immigration Services ) to do a thing which is its duty, but, which, it has failed to do so far. This writ is not sought as a matter of right. It is completely up to court whether to issue a writ of mandamus or not.

Statutory basis for Mandamus jurisdiction is under 28 USC §1361. This provision gives the power to the court to compel an officer or employee of DHS or another government agency to perform a nondiscretionary duty by issuing a writ of mandamus.

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Under Belegradek v. Gonzales, 523 F.Supp.2d 1364 (N.D. Ga. 2007), a mandamus lawsuit must successfully put forward, (1) a clear and certain claim; 2) that the duty owed is ministerial and so plainly prescribed as to be free from doubt; and (3) that no other adequate remedy is available. In this case court held that USCIS had a nondiscretionary duty to adjudicate an Adjustment of Status I-485 Application within reasonable time.

In Labaneya v. USCIS, 965 F.Supp.2d 823 (E.D. Mich. 2013) the court reasoned that although USCIS’s discretion encompasses the entire AOS process including the pace of adjudication, USCIS has a duty to adjudicate an application and they must to explain a 4-year delay in deciding an Adjustment of Status I-485 Application.

On the other hand §336(b) of Immigration and Nationality Act provides another statutory ground for remedy before the Federal District Court for pending Naturalization N-400 Applications: If no decision is made after 120 day passes from the interview, the applicant may apply to the United States district court. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.

In our experience, a lawsuit at the Federal District for a pending Naturalization N-400 matter has a very high chance of success. This is when a an N-400 Case is pending before the USCIS and no decision is made even though 120 days passed after the interview.

If you have a pending immigration matter and would like to find out if you can file a lawsuit at the Federal District Court, please do not hesitate to contact us to schedule a consultation.

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