Mandamus Immigration Lawyer NYC

Mandamus Immigration Lawyer NYC | Feiner & Lavy Law Firm

The Writ of Mandamus: An Action to Clear Immigration Delays of Pending N-400 Application for Naturalization and I-485 Application for Green Card – Adjustment of Status

If you’re looking for an easy way to understand the intimidating phrase Mandamus Action or Writ of Mandamus, that’s the simplest way to explain it. A Writ of Mandamus is when a Federal Court instructs USCIS government official to do his job because that official has left a process in limbo, such as creating an immigration delay in Pending N-400 Application for Naturalization and I-485 Application for Green Card – Adjustment of Status through his inaction. Once you wrap your head around the basic idea, a Mandamus Immigration Action is not very intimidating at all. But it isn’t all that easy to have a court issue one on your behalf.

1. What Is Immigration Writ of Mandamus?

Like many legal terms, the Writ of Mandamus comes from Latin: mandamus means “we command.” The Writ of Mandamus is enshrined in Title 28, Section 1361 of the U.S. Code and it empowers a Federal Judge “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” One of the venues where this process is frequently used is in United States Federal Courts throughout the country.

Why would you file for a Writ of Mandamus in your immigration case? Consider this situation: You have an I-485 – green card application or N-400 – application for naturalization that has been delayed…not for days or weeks, but for months or years. You applied to adjust your status in 2016, were told that you would soon have an interview and the process should be completed in 2017. You’ve patiently waited, but it’s now 2020 and you’ve never had an interview, your status hasn’t changed, and you cannot get a satisfactory answer from the USCIS officer managing your application. You and your NYC Mandamus Immigration Lawyer have worked diligently to compel the USCIS to move your matter forward, but the immigration delay lags on. You are concerned, and you and your NYC Mandamus Immigration Attorney believe that you are experiencing an “unreasonable delay” in the processing of your green card or citizenship application. Some delays are reasonable and even understandable, however just because an immigration delay is “not unusual” does not necessarily make it reasonable. And when you’re looking in the rearview mirror at three years of your life having passed without your status being decided, that is something your NYC Mandamus Immigration Lawyer may believe a Federal Judge would determine as an unreasonable delay. This is when the Federal Court would be petitioned to issue an immigration Writ of Mandamus – ordering the immigration official to immediately move forward on your application.

2. Who may file an Immigration Writ for Mandamus?

There may not be strict limitations on who can file for an Immigration Writ of Mandamus, but the Federal Court will not entertain an improperly filed application for relief. Everyone knows a lawyer and a lot of lawyers believe they can learn a legal process on the fly…and some do…but you don’t want to take a chance. This is a highly specialized process that is best executed by an experienced NYC Mandamus Immigration Attorney. The Mandamus Action needs to be filed in a very particular way, and your experienced NYC Mandamus Immigration Attorney will know his way around the Federal Court and how you are most likely to be successful.

To give you an idea of how specialized this can be, before a Federal Court will consider awarding an Immigration Writ of Mandamus, your NYC Mandamus Immigration Lawyer must establish on your behalf that you have a clear right to the action being requested; that the defendant (the immigration official) has a clear duty to perform the act; and that there is no other adequate remedy available. While you may feel these are obvious, an NYC Mandamus Immigration Lawyer will be much better at evaluating the criteria because these are ideas that are subject to the judgment of a United States Federal Courts. And part of what adds a particular layer of complexity to the process is a lack of consistency that can occur in different courts or with different judges, meaning an NYC Mandamus Immigration Attorney has to know just how to present your case.

3. How do I file an Immigration Writ for Mandamus?

One of the more interesting and potentially intimidating parts of filing an Immigration Writ for Mandamus action is naming the defendants. You may find that your case names powerful officials like the Director of the FBI, the U.S. Attorney General the Secretary of Homeland Security or the USCIS Director along with the immigration official who has been involved with your case and is responsible for the delay. This is a standard legal practice and it doesn’t mean that those important, busy Immigration of FBI officials will have to show up in court to testify in your case. As the heads of certain government and immigration agencies, they are the people ultimately responsible for the delay of a Pending N-400 Application for Naturalization or I-485 Application for Green Card – Adjustment of Status, and including them also includes the legal department of these agencies. It is also a standard practice, and a clever and able NYC Mandamus Immigration Lawyer understands to err on the side of being over-inclusive in naming defendants, even those who hold high office and seem to wield great power.

Because these actions involve U.S. government and immigration agencies, the case will need to be filed in the United States Federal Court. There aren’t laws prohibiting an individual from filing an action on his own (this is called “pro se,” a Latin term meaning “in one’s own behalf”), but this would be a waste of time, effort and money. And even if you think you’ve read the rules and the laws and your case clearly applies, the blindside now becomes government lawyers and the precedents they will cite.

For instance, government lawyers have, on occasion, successfully argued that because removal proceedings have not been initiated against you, an alternative remedy is still available: appealing removal once those proceedings have started. The courts have generally not agreed with that rationale, but it’s important to recognize that an NYC Mandamus Immigration Attorney will be experienced with these tactics and is armed with powerful counters to even passionately presented arguments by government lawyers.

And there are other trap doors that your NYC Mandamus Immigration Lawyer can help you avoid, such as an immigration mandamus action being ruled “moot” because during a long delay. There are situations where this applies, such as applicant turning 21 while waiting and now being too old to qualify for the application they filed; or a diversity lottery winner having their application expire at the close of a fiscal year. In both of these instances, your NYC Mandamus Immigration Attorney will caution you that this is not a winning case because the court cannot compel an official to act on an application that is no longer valid (and thus moot). Although there was a delay, the court cannot order the government official to act on a matter that is now viewed as something in the past and expired, and sadly a Writ of Mandamus will not remedy the harm caused by this delay.

4. What is a Writ of Mandamus Lawyer?

The most important thing in finding a Mandamus Immigration Attorney NYC is to ask about the firm’s experience in filing these cases. As we’ve discussed, you want a Mandamus Lawyer NYC who is experienced in filing for a Writ of Mandamus, who has a working knowledge of the Federal Court System, and who has a track record of successful outcomes.

You should ask your NYC Mandamus Immigration Lawyer if he and his firm have a good record. You can also request if he will reach out to the clients and ask if they would be willing to anonymously discuss their case with you. (Remember: The identity of a client is protected by attorney-client privilege.) Then have a frank conversation with them. You don’t need to know the details as they’re unique to each case, so those are best avoided. There are three things you want to learn: if they were satisfied with the speed in which the matter was handed; if they felt informed about what they were doing by seeking an Immigration Writ of Mandamus; if the NYC Mandamus Immigration Attorney kept them informed regarding the progress of the case. Again, avoid asking anything personal or any specific details – we are frequently reminded that people in America have a right to privacy and immigration status is a very sensitive issue, which immigrants are not always willing to share. This conversation can go a long way to helping you feel comfortable that you are making the right choice in choosing an NYC Mandamus Immigration Lawyer.

5. How can a NYC Mandamus Immigration Lawyer help?

In theory, winning an Immigration Writ of Mandamus action should not prejudice USCIS or other immigration officials against an applicant, but it will compel them to act. This does not mean that your green card – I-485 application, or N-400 delay will be decided in your favor. A Federal Judge can instruct the USCIS official to act, but cannot tell that official how to decide an action. That will be up to the USCIS officer processing your case. While this may sound scary and make you think, “Why not just stay in limbo if it means my application will be denied?”, that’s only the end of this act. There are two silver linings if the official rules against you: first, your immigration delay has finally been cleared and your green card or citizenship application is approved; second, now that your green card application has been approved, you may be eligible to start or complete your N-400 application for naturalization or file an immigrant visa petition for your spouse or other relatives who have been patiently waiting for their status to be fixed.
In the final analysis, an Immigration Writ of Mandamus is the first step on what will hopefully be a path to your long-awaited dream of becoming a permanent resident or a naturalized citizen of the United States of America. Taking that step demands that you exercise care in choosing your advocate wisely. Finding an immigration law firm with an outstanding reputation and demonstrated track record, like Feiner and Lavy, is exactly the kind of step that will help clear the path ahead and put you much closer to a successful resolution.