By Shah Peerally
The Mandamus Actions. -A mandamus is a writ that is used to compel an administrative agency to act. For instance, if your adjustment of status or your citizenship is pending for a long period of time, you can opt to file such an action. The Mandamus Act, Codified at 28 USC § 1361 says:
Action to compel and officer of the United States to perform his duty. The district courts shall have original jurisdiction of any action in the nature of mandamus to compel and officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff.
The Mandamus Act authorizes the court to order a remedy. It does not provide independent, substantive grounds for a suit. In other words, what the court is going to determine the reasons why the decisions are pending not the outcome of the decision. Therefore by forcing the agency (e.g. the USCIS) to make a decision can also result in a denial. At that point appeals or motions to reopen can be timely filed. However this is not within the scope of this article. Remember, it is highly advisable to have an experienced licensed federal district court admitted attorney to handle your case.
In a mandamus action you as plaintiff (“plaintiff”) must demonstrate that:
1. You have a clear right to the relief requested;
2. The defendant (the Government or Administrative Agency) has a clear duty to perform the act in question; and
3. No other adequate remedy is available.
Under the Mandamus Act, the court may compel the government to take action, but the court cannot compel the agency to exercise its discretion in a particular manner, nor can it grant the relief that the plaintiff seeks from the agency.
The above is just a brief analysis of using the Mandamus Act however, there are other factors that need to be considered before a person moves forward on a Mandamus action.
What to do if a naturalization (Citizenship) application is being stalled or delayed.
In a situation where you have already filed for your naturalization application, and passed the interview but you are waiting for your oath date, there is a better action than the Mandamus Action. Let us say, you took your Citizenship interview in January 2006 and you passed the test. You are told that the “FBI/Name Check” has not been completed. Patiently you wait. Months have passed and “your oath” date does not come up. You call the USCIS and they tell you, “you are pending for FBI/Name Check; unfortunately nothing can be done until finalization of this process”. What do you do next?
Under INA § 336(b), USC § 1447(b), specifically provides for judicial review for a stalled naturalization petition in these circumstances.
It states as follows:
If there is a failure to make a determination under [INA] § 335 [8 USC § 1446] before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States District Court for the District in which the applicant resides for a hearing on the matter. 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 other words, if your Naturalization application after the interview, which you passed, is pending for more than 120 days, you can seek judicial relief. The judicial relief can come in two forms:
1. An adjudication of the naturalization application in court and by the court; or
2. A remand to USCIS for immediate adjudication.
Note that under this section of the law, the Federal Court retains jurisdiction on the case. This means only the Federal Judge can decide about your case and that USCIS has no right to make a decision on the case unless you allow them to do so.
Our office has successfully handled a number of such cases. Very often, the USCIS will comply and ask the attorney to dismiss the case through the US attorneys. Your attorney will dismiss the case provided they agree to confirm an oath date on your case.
The entire process above used to take few weeks to complete. However in December 2006, the USCIS issued a memo stating that there will be no FBI expedited name check. Now there are a lot of more struggles. Yet many of our cases have been completed within few months.
Therefore don’t desperate if your case is pending for a long time. We can still assist you achieve the dream of citizenship.
**The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. Shah Peerally is the managing for the Shah Peerally Law Group PC located in Newark CA. The office main area of practice is Immigration Law www.peerallylaw.com Ph:510 742 5887