Writ of Mandamus Attorneys in San Francisco
If USCIS has failed to give a decision on a correctly filed immigration application after a reasonable period of time, the applicant may file a writ of mandamus. A writ of mandamus is a civil action that is intended to move a government actor to perform an action that he or she is required to complete under law. For most people, the best course of action is to work with an attorney regarding filing this type of action – particularly in immigration cases, which can be complex and, in some cases, difficult.
What is the Writ of Mandamus in Immigration?
A writ of mandamus is a type of action a person can file for, through a judge, when U.S. Citizenship and Immigration Services has not issued a decision on a case within a reasonable amount of time. Naturally, “reasonable” is subjective – but if it’s been quite some time since your application and you haven’t heard anything but crickets from USCIS, your San Francisco immigration attorney may suggest that it’s time to file a writ of mandamus.
A writ of mandamus encourages the agency to take action. It goes to a judge, and if the judge agrees, the court orders the agency to fulfill its duties. Because it’s an official court order at that point, the agency has no choice but to take action – it cannot ignore the order, and it cannot continue to drag its feet.
Is it Possible to File a Writ of Mandamus Against USCIS (or Any Other Government Agency)?
It is possible to file a writ of mandamus against any government agency that isn’t fulfilling its duty. The fact is that government agencies, which are paid for by taxpayer dollars, are obligated to provide certain services – and they can’t take forever to do so. In fact, most agencies – USCIS included – have timelines in place to guide them on taking actions. When a government agency doesn’t do what taxpayers are paying it to do, it can – and should – be held accountable. One way to do that is through a writ of mandamus issued by a judge. Again, this is a legally binding court order that requires an agency to do its job.
Why Would Someone Need to File a Writ of Mandamus?
USCIS has provided general guidelines for how long it takes applications to be processed, but if responses are not given by USCIS within those time estimates, then you may file a writ of mandamus. This goes for any application that you must file through USCIS.
In some cases, it’s necessary to file a writ of mandamus – there are no other options to get a petition “un-stuck.”
Will a Writ of Mandamus Result in an Unfavorable Immigration Decision?
USCIS will not automatically issue a negative decision as the result of your attorney filing a writ of mandamus against it. In fact, doing that would be unlawful and retaliatory. USCIS is obligated to provide you with a fair decision based on the facts of your case, so it cannot hold a writ of mandamus against you.
What if You Receive an Unfavorable Immigration Decision After Filing a Writ of Mandamus?
If you receive a negative immigration decision after filing a writ of mandamus, such as your petition being denied, you may be able to appeal. Your attorney can guide you through the appeal process and help determine what steps to take next. Typically, appeals go through the USCIS Administrative Appeals Office (AAO) or the Board of Immigration Appeals (BIA), which is part of the U.S. Department of Justice.
Typically, the notice you receive from USCIS will include instructions on filing an appeal for an unfavorable decision. Your attorney can file the appropriate paperwork to appeal an unfavorable decision, provided that they do so within the allotted time frame (usually 30 days). Your lawyer will know where to file the appeal, as well as what types of documentation should accompany it. Your attorney has the option to submit a brief that explains the situation, as well.
There is a fee to ask for an appeal, but there is also a waiver available. You can talk to your attorney about qualifying for a fee waiver for an appeal.
Your attorney may ask for your case to be reopened or reconsidered. A motion to reopen is a request to reopen your case based on new facts that are available at this time (facts that were not available at the time the decision was issued). A motion to reconsider is a request for the same office to review its decision based on an incorrect application of law or policy. No new evidence can be considered in a motion to reconsider (though it will be considered in a motion to reopen).
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What Types of Cases Can You File a Writ of Mandamus For?
You can file a writ of mandamus for any type of case you file with USCIS. That means if you haven’t received a decision on any case, your attorney may suggest filing this action. That goes for green cards, visas, citizenship and a wide range of other immigration petitions.
How to File a Writ of Mandamus
To start the process of filing a writ of mandamus, contact Warren Law Firm to schedule a consultation. We will help you correctly file a writ of mandamus in a timely manner. Our office is capable of suing USCIS for applications that have not processed in a timely response, which helps our clients work, travel and obtain lawful permanent residence or citizenship and begin the process to petition for members of their family.
Your attorney will need to complete a very specific petition that must be addressed to the appropriate court. Generally, it’s not advisable to attempt to file your own writ of mandamus against USCIS – not because you can’t do it, but because filing it properly is essential. It’s often best to work with someone who has experience in these types of actions against the United States government.
Who Can’t File a Writ of Mandamus?
You may only file a writ of mandamus if you have:
- Properly filed your application for an immigration benefit. If you have improperly filed, that is likely the reason behind the delay in your case.
- Submitted all the necessary documentation and evidence in your case. If you are missing evidence, USCIS is unable to take action on your petition. It will need all of your evidence and documentation to provide you with a decision.
- Met all additional requirements. If you don’t meet immigration requirements, USCIS cannot take any further action on your case. A writ of mandamus will do you no good, because USCIS is unable to move forward until, and if, you meet immigration requirements.
- Are within a “reasonable” amount of time. If USCIS typically takes six months to respond to a particular type of petition, you’re still within a reasonable amount of time and a writ of mandamus is not necessary. This action is only for situations in which USCIS is taking an unreasonable amount of time to issue a decision.
Are There Other Options Aside From Filing a Writ of Mandamus?
Generally, USCIS is fairly effective at issuing decisions on petitions within a reasonable amount of time. Often, some petitions take longer than others do for various reasons. Your attorney can check on the status of your petition at any point during your case. Sometimes, there is a perfectly reasonable explanation as to why USCIS is taking the amount of time it’s taking.
Usually, a writ of mandamus is a last resort in cases that are taking an unreasonably long time. The bottom line is that your attorney will know when it is appropriate to file this type of action. If you file unnecessarily, you are most likely wasting your own time. That’s not to say that it is not sometimes absolutely necessary to file this type of action; However, you should discuss this option with your attorney to be sure that it’s a good idea.
Do You Need to Talk to an Attorney About Filing a Writ of Mandamus Against USCIS?
If you need to talk to an attorney about filing a writ of mandamus against USCIS, we’re here to help. Contact our office today to schedule a free consultation with an experienced immigration attorney who can help you understand your case’s timeline, as well as file actions to help resolve your situation as quickly as possible.
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