The U.S. Department of State and U.S. Citizenship and Immigration Services (USCIS) have become notorious for delays and long processing times, which sometimes span years or even decades. In many cases, a court can order the government to “hurry up” through writs of mandamus and the Administrative Procedures Act. These are typically used simultaneously to bring the government’s attention to a delay.
Our firm is located in Washington, D.C. and equipped to handle claims against the federal government on behalf of clients around the world. Please contact us for a consultation.
Mandamus
Mandamus has been successfully used to force the government to act on applications for adjustment of status, asylum, U visas, and other types of relief. Legally, there are three criteria that must be met:
- Plaintiff has a right to the relief requested.
- The government has a duty to perform the act – in other words, the act is not at the government’s discretion.
- No other adequate remedy is available.
In the immigration context, mandamus cases usually resolve around the government’s statutory obligations to adjudicate applications without unreasonable delay, such as the Congressional directives that immigration benefits should be adjudicated not later than 180 days from initial filing (8 U.S.C. 1571(b)) and that K-1, IR-1, and CR-1 visa applications should be processed by the State Department within 30 days of receiving all necessary documents (113 Stat. 1501A-430).
Administrative Procedures Act (APA)
Parallel to the mandamus system, the Administrative Procedures Act provides a framework to challenge unreasonable delays in actions by government agencies, including immigration-related agencies such as the Department of State.
In deciding whether a delay is unreasonable, the court can consider the statutory guidelines applicable to mandamus, as well as whether processing times are governed by a rule of reason, any impact on human health and welfare due to the delay, and other interests prejudiced by the delay.
The Process
Cases against the federal government must generally be brought in a federal district court, either in Washington, D.C. or the location of the plaintiff’s residence. The District of Columbia is often preferred as a venue, since it is impossible for the government to challenge this venue in most cases, ensuring a more prompt resolution of the matter.
Most mandamus/APA cases result in the government taking action on the application within their statutory deadline to respond (60 days following the complaint). During this time, an Assistant U.S. Attorney will often work with the plaintiff’s attorney and the relevant agency officials to ensure that the matter is resolved so that the government does not need to litigate the case.
However, there is no guarantee that the government’s action will be favorable to the plaintiff. In a questionable case, a mandamus/APA case may simply result in the government denying the application, thus fulfilling the government’s obligation to act. The government may also choose to litigate if the grounds for the case are legally or factually questionable.
Attorney’s fees for a mandamus/APA case are typically several thousand dollars, and vary depending upon the attorney and the complexity of the case. In some instances, the government may bear the plaintiff’s attorney’s fees under the Equal Access to Justice Act (EAJA), but this is the exception; fees and costs are usually the responsibility of the plaintiff regardless of the result of the case.