Immigration Case taking too long? Yep, you can sue the government!

With immigration case processing times at record highs, it is no wonder that applicants and their anxious family members have been searching for something, ANYTHING, that can help their cases move along quicker. 

Sure, there are various types of service requests and inquiries that can be made, requests to expedite your case, and even Congressional inquiries presented by your elected officials. However, there is another option available for when all else has failed — yes, you can actually sue the U.S. government.

How can you do that? Can it actually get you the result you want? Are there any negative consequences to your case? Is it only for multi-millionaires? Read on for everything you need to know about writs of mandamus to get your immigration case moving. 

What is a Mandamus Action?

“Mandamus” is a traditional legal concept that basically means someone tries to get a court to order a government official to do their job. It literally means “we command you” in Latin. Mandamus can be used in lots of different contexts, not just immigration. However, it has become much more common within the field of immigration over the last few years – pretty much due to the sheer exasperation of attorneys and their clients at the utter brokenness of our bureaucratic system and search for more unusual solutions as our previously effective solutions to problematic cases have stopped working. This article will only discuss Mandamus as it’s used specifically in the U.S. immigration law context.

In immigration, mandamus actions are useful for getting a final decision to be made on an immigration case that has been taking way too long. Keep in mind that sometimes the decision is actually a denial of your case. However, with mandamus, at least you get a clear answer rather than staying in limbo.

When does it make sense to try Mandamus?

Mandamus is really only a good option when you’ve tried everything else possible to move your case along, and nothing has worked. One of the rules about mandamus is that you first have to “exhaust all other remedies,” which is just lawyer speak to say that you have already tried to solve your problem using every other option available to you first. Then a mandamus action is your last resort. That means you’ve done all of the normal attempts at inquiries on your case, etc, and gotten nowhere.

Your case also has to be very unreasonably delayed. Whether your situation is likely to be considered unreasonable depends on a lot on the details. You may want to get an opinion from an attorney about whether or not your case is at that point yet. Usually a good rule of thumb in immigration is that anything that has not been pending at least 2 years is not going to even be a candidate for a mandamus action. However, there are also lots of cases that have been pending this long that are not going to be good mandamus candidates, especially with case types that involve multiple phases where the case has been slowly winding through the various phases successfully. 

Another important consideration is whether or not it is a good use of your personal resources to attempt a mandamus action. Most cases cost in the range of several thousands of dollars to attempt. Some applicants are in a situation where it is absolutely worthwhile to put down that kind of money for the chance to get a resolution. Others might prefer to simply wait longer or spend that money on something else – like a nice vacation!

Are there any legal requirements for filing mandamus?

Yes, there are a LOT of them! But rather than write a whole book on the topic, I’ll mention some of the most important and basic legal requirements that are in addition to the ones I already mentioned earlier in this article:

• The government has to have a “duty” under the law. This means that you have to point to a specific law that says the government official has to do a specific thing. You can’t force them to do something optional or discretionary that is not a definite part of their job.
• You have to have done everything you were supposed to do – such as paying proper filing fees, filling out the required application forms, sending the right evidence, and responding to any requests for more information before the deadline.
• You have to be suing the correct officials or agencies based on who is responsible for processing your case type. 
• You have to have selected the correct district court to start the lawsuit according to the Federal Rules of Civil Procedure that say how you select the proper court that will have the legal authority to decide your dispute.

Okay, so how do you start a mandamus action?

To ask for mandamus in your immigration case, you have to formally start a lawsuit in a U.S. federal district court. There is a filing fee and a series of documents containing very specific content and in a very specific format that you have to submit to the court. The main initial document is called a Complaint, and it explains:

• An overview of your personal situation
• Who you are specifically suing (such as officials at USCIS or U.S. Department of State)
• What laws apply to the situation
• What you are asking the court to do for you, and
• Why you believe you have a right to have this happen.

Then there are rules about how you notify everyone else involved in the case. Although the process is generally similar in every federal court, each district can have minor differences in their preferences. Most of these differences are described in the “local rules” for the court, but some of the differences are simply informal local customs that are learned through experience.

Although it is technically not a requirement to have a lawyer represent you, most people do hire a lawyer to represent them for this process. Otherwise it is very difficult to figure out how to do it successfully. 

So what happens after you file the lawsuit?

The federal government usually has 60 days to respond to your lawsuit. In the best-case scenario, the government attorneys take a look at the case and decide it would actually be easier just to make a decision on your immigration case so they don’t have to deal with the lawsuit. (In legal terminology, we call this “mooting” the case.) This is actually great for the applicant as well, because it keeps their costs for the court case much lower than if they end up actually arguing about everything in court. 

If a decision is made on the immigration case, then your attorney will ask the judge to close the federal lawsuit with a document called a Motion to Dismiss. After all, you already got what you wanted (a decision!) so there is no longer any need to be fighting about it. So ironically, the best outcome in an immigration mandamus action is actually to “lose” your case and have it closed within the first 60 days! However, if the case does continue on, then there will be written arguments back and forth from both sides and in some circumstances even more complicated things like hearings. At the end of the case, the judge will either order the government to make a decision on your case within a certain number of days, or else refuse your request and say that the government is justified in what is it doing or that your delay is not unreasonable. Then you would just have to wait for a decision.

Will I be punished or penalized for suing the government?

No, the United States has set up the laws so that people do have the right to sue other parties, including the government itself, if it doesn’t follow the laws. That is not to say that everything is always perfect and just in the USA. However, I have never seen any sort of revenge-seeking type behavior from the government just because someone used the legal system to make a request. So no – they are not going to automatically deny your case just because you have started a lawsuit. The final decision on your case will be based on the immigration laws. If your case is denied, the denial notice will give the specific reasons that the government has concluded you are ineligible. You will also have a chance to respond to clarify things or dispute their conclusion if you think it’s a mistake.

So there you have it! Everything you ever wanted to know about one of the more unusual aspects of immigration law practice. You have to admit – it is pretty cool that we live in a country that is free enough that you can safely sue your own government! I feel oddly patriotic and proud to be an American every time I’m involved in a mandamus action. Although my ultimate wish is that the various immigration agencies would simply start processing all cases within a truly reasonable timeframe! In the meantime, I’m here to help y’all get through this crazy system however you can…