What Is The Mandamus Act And Administrative Procedure Act?
Recently, there has been a growing trend with severely delayed immigration adjudications, especially at USCIS. Additionally, prior open lines of communication to resolve issues internally with agencies are now almost non-existent. As such, many applicants are languishing in limbo, waiting for some kind of action.
Federal district courts provide an effective option to solve the issue of long-pending applications through a petition for a writ of mandamus. Generally, the petition is brought under the Mandamus Act and the Administrative Procedure Act to compel an agency like USCIS to perform its duty to act when some kind of adjudication is “unreasonably delayed” or “impermissibly withheld.” When filing for mandamus, courts look to whether there is a statute or regulation that mandates a specific timeframe for adjudication, whether the plaintiff has a clear right to the requested relief, and if the plaintiff has any other adequate remedy.
Even when there is not a specific timeframe, immigration litigation law requires USCIS and other agencies to complete adjudications within a reasonable time. Please note that mandamus is not a request for approval, but rather a request to compel an agency to perform a mandatory duty. The courts consider it an extraordinary remedy and should not be used to “cut in line” – the circumstances should indicate a level of prejudice that requires prompt attention.
With cases pending well beyond published processing times, mandamus can serve as a valuable tool for many applicants.
Portions of the content on this page are available as public information on the USCIS website.
Complaint For Declaratory and Injunctive Relief And Review Of Agency Action Under The Administrative Procedure Act
In addition to lengthy processing times, application denials are rising across all visa categories, often for cases that were approved without issue in the past. A complaint under the Administrative Procedure Act is an effective tool to challenge agency denials that are “arbitrary, capricious, or an abuse of discretion.” This can mean that the agency has ignored the law, failed to consider evidence, or provided no explanation as to how it reached its conclusion. Generally, there must be a final agency decision to bring a claim, and evidence is limited to what was presented before the agency leading up to the denial.
While USCIS appeals often take a year or more to adjudicate, complaints under the APA are resolved according to strict court deadlines. The government is required to respond within 60 days, and matters are often resolved before the matter reaches the judge for decision.\
Temporary Restraining Order And Preliminary Injunction
Within the process of filing a complaint under the APA, a petitioner can request a temporary restraining order and preliminary injunction to ensure that the status quo is maintained throughout the litigation. A temporary restraining order is an emergency order issued because the plaintiff will suffer immediate and irreparable harm if the order is not issued. A TRO lasts around 14 days and can be converted into a preliminary injunction, which lasts for the duration of the litigation. The plaintiff must demonstrate:
- Immediate and irreparable harm
- Likelihood of success on the merits
- Balancing the equities weighs in Plaintiff’s favor
- The injunction is in the public interest
This can be a powerful remedy for those where a denial means they fall out of status and may no longer work for an employer. A temporary restraining order and a preliminary injunction would postpone the effects of denial to where the plaintiff could remain in the United States lawfully and continue working until litigation is resolved.
We Represent Clients Nationwide And Around The World
Contact Us To Learn More
Call David Hirson & Partners, LLP in Costa Mesa, California at 949-441-4003 or our Seattle, Washington, office at 949-383-5369 or contact us by email to arrange a consultation with one of our immigration attorneys today.
Disclaimer: The use of the internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.