New Developments in Mandamus Lawsuits
Posted Mar 07, 2008
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The recent trend of increasing numbers of federal writ of mandamus lawsuits has forced the USCIS to change its operating procedures with regard to some delayed I-485s, Applications to Adjust Status. While we at the Murthy Law Firm applaud this realist approach to the problems presented by the FBI's name-check system, it does not address remaining delays faced by many with citizenship cases still stuck in a 'legal limbo' due to security check delays. We also see this problem, although less frequently, with other types of cases not covered by the revised name-check system.
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As regular MurthyDotCom and MurthyBulletin readers will recall from our December 7, 2007 article, DHS Indicates It Will Expedite Name Checks, applicants and petitioners whose immigration cases have been substantially delayed by criminal and security background checks may benefit from filing a writ of mandamus against the government in U.S. federal courts.
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Steep Increase in Mandamus Lawsuits against DHS/USCIS
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In recent years, the number of mandamus lawsuits filed against the U.S. Department of Homeland Security, and other federal agencies, has skyrocketed. According to USA Today, the USCIS reported that approximately 270 lawsuits were filed against the agency in 2005 over immigration cases that were delayed by name checks. In 2007, that number had increased to more than 4,400 such lawsuits.
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Michael Aytes's Feb 2008 Memorandum Issued in Response
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In response to this avalanche of litigation and, in particular, to a case still pending in the U.S. District Court for the Eastern District of Pennsylvania, the USCIS filed the recently issued Michael Aytes's memorandum dated February 4, 2008. This memorandum was filed as an exhibit in the case of "Mocanu v. Mueller," which involves a mandamus lawsuit against the USCIS to resolve a naturalization case that has been delayed for more than two years. Despite the fact that Mr. Mocanu had not been scheduled for or completed his naturalization interview, the Court ruled that it had jurisdiction to hear the case and denied the USCIS's motion to dismiss the case.
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Muslim Plaintiffs File Mandamus Action
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In another remarkable case, twenty-five foreign nationals from Florida filed a mandamus lawsuit against the USCIS, claiming that their naturalization applications have been delayed because of their Muslim faith. As the St. Petersburg Times reported, this class-action mandamus lawsuit, Adil Amrani v. Dugas, alleges that the FBI failed to complete required name checks, resulting in naturalization delays of up to four years.
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Use of Mandamus Actions in Naturalization Cases
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A writ of mandamus action may be used to resolve a naturalization case that has been pending for an excessive period after the date of the interview, as was described in our September 22, 2006 MurthyBulletin article, USCIS Announces Elimination of Naturalization Backlog, available on MurthyDotCom. Additionally, a writ of mandamus could be attempted for a long-delayed naturalization case for which no interview has been set, if the interview was delayed because of a lack of security clearance. As explained in our May 19, 2006 article, USCIS Delays Certain Naturalization Interviews, the USCIS revised its procedures for setting naturalization interviews in an effort to avoid the clear basis for a mandamus case created by delayed naturalization decisions following naturalization interviews.
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Writs Possible in Other Immigration Cases with Delays
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Writ of mandamus actions are not limited to permanent residency and naturalization cases, but may be successful in correcting delayed government actions that meet the criteria set for in the All Writs Act, 28 U.S.C. §1651,et seq. These may include I-140 petitions and H1B petitions that have been delayed due to security or criminal background checks.
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Conclusion
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Due to pressure from lawsuits over unreasonable delays relating to the name check process, and from pressure from numerous federal court rulings, the USCIS is working to resolve delayed I-485 cases under the February 4, 2008 Michael Aytes's Memorandum. They have set a goal of mid-March 2008 for adjudicating such cases. There still are cases, however, that can benefit from mandamus filings and, hopefully, the pressure from such mandamus lawsuits in time will help resolve the delays in all such cases.