The immigration process is often a long and frustrating one, with applicants forced to endure interminable periods of waiting. But in some instances, the waiting periods shift from aggravating to unreasonable. The bland response of “administrative processing” starts to become threadbare after months or years pass by. Suspicion grows that the case has either been placed into limbo and forgotten, or deliberately left unresolved.
In some cases where an application’s waiting period has become unreasonable, attorneys may be able to start the process moving again through seeking a writ of mandamus. This is an order from a federal court instructing USCIS or another government agency to take action on the case and issue a decision. In some other cases, the Administrative Procedure Act can be used to push the government to take action. Both of these tools involve suing the agency causing the delays, and asking the court to intervene and make the agency do its job.
Not all cases are suitable for mandamus or APA relief. A court will only grant relief here if an applicant can show that the benefit they’re seeking is something that they have a right to receive, something that the government agency has a duty to provide, and that no other option exists for the applicant to get help.
Right and Duty
In order to bring a mandamus claim, an applicant has to demonstrate that they have a right to apply for the benefit in question and that the government agency has a legal obligation to fulfill the task they’re delaying. The applicant has to be the person for whom the law is intended to function, and that they have an interest in forcing the agency to make its decision now. This means that one can’t bring a mandamus suit on behalf of another family member, or compel the government to start removal proceedings in immigration court, for example.
When someone demonstrates that they’ve got a right to apply for a benefit from USCIS, that creates a duty for USCIS to adjudicate the application. It doesn’t mean that USCIS must grant the application, only that the agency has a duty to issue a ruling on it one way or another.
No Other Option
Someone wanting to bring a mandamus suit must show that they’ve tried everything else available to get a result from the government agency, a process called “exhausting their administrative remedies.” An applicant can only seek mandamus relief if they can show that they’ve tried every other tool offered by the agency for resolving their case.
Administrative Procedure Act
The Administrative Procedure Act (APA) is designed to compel government action when unreasonable delay has occurred; its scope partially overlaps with mandamus relief. In some cases, the APA may apply when a mandamus action might not. The requirements for APA cases are very similar to those of mandamus – and just as in mandamus cases, the APA cannot be used to compel the government to rule in favor of an applicant, only to compel the government to issue a ruling in the first place.
Filing for a writ of mandamus or APA relief requires that an applicant file a lawsuit in federal district court against the agency/agencies that are responsible for the delay. This involves filing a complaint with the district court, explaining the situation and showing the court that the government hasn’t taken action that it’s supposed to.
Sometimes the very act of filing the lawsuit is all that’s necessary to start the wheels turning again at the agency. Defending a court case is a hassle, and it may be easier and less frustrating for the agency to just go ahead and settle the case, issuing a ruling than to fight the applicant in court. In other cases, however, the agency will argue that it was acting fairly and properly and that the case isn’t suitable for mandamus relief. This means that the issue will go to trial.
Ultimately, even if an applicant wins mandamus relief, the agency may still choose to deny the applicant’s benefit. Mandamus relief forces the government to act, but doesn’t allow the court to conclude how the government should act when issuing a decision. What’s more, the act of filing a lawsuit against it may even provoke the agency to deliberately find a pretext to deny the application.
Obviously, these outcomes aren’t desirable, but even a denied application may at least provide an applicant with surety and clarify the remaining paths over to them. It may also be the next step required before an appeal or other challenge to the decision. A denied application doesn’t necessarily mean the end of the road: it can also be the start of meaningful movement on the case through an appeals process.