Everything You Need to Know about Writ of Mandamus (in plain English; Part I)

I'm no lawyer, and this is not a legal paper. Viewer be aware.

Now you understand the beauty of the FBI Name Check delay, it's time to take some serious action. The ultimate action to challenge the FBI Name Check delay is filing a Writ of Mandamus (WoM) lawsuit.

The Definition of Writ of Mandamus (WoM) in Immigration Lexicon

Writ of mandamus (WoM) is a form of lawsuit that forces government to make a decision on cases that have taken them too long to process. In other words, the base for the lawsuit is that the government (defendant) failed to act on the duty owed to the plaintiff in a reasonable timeframe.

How WoM Works

To make a long story short, you, the victim of the unwarranted delay in the immigration process, filed a lawsuit with Assistant United States Attorney (AUSA) at the Federal District Court, against some figure heads from Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), Attorney General, and/or other related agencies, such as FBI (if it is related to Name Check). In other words, you are the plaintiff and the immigration-related agencies are defendants. The court then contacts the defendants (USCIS and co.).

In the past, the defendants would quickly act on your case to shut you up and the lawsuit would be dismissed by the court before any court battle. You win. The new trend is that the defendants don’t act on your case just because there is a lawsuit pending. Instead, they argue back. The federal court will make the final decision, either to ask USCIS to act on your case so that the lawsuit can be dismissed to avoid any deserved federal embarrassment, or, to dismiss your complaint coldheartedly because the judge thinks either your complaint is weak or the USCIS’ argument is reasonable, or both.

Why WoM?

The most common reasons to file the WoM in today’s immigration depression era are: 1) a long delay of Application for Adjustment of Status (I-485; Green Card) mainly due to FBI Name Check process; and 2) a long delay of Application for Naturalization (N-400) due to, duh, FBI Name Check process. Of course, theoretically, any immigration case that USCIS is inapt to process in a reasonable timeframe warrants WoM.

If you find out that your I-485 case or N-400 case has been stuck in the FBI name check process for a lengthy period and it seems there is no light at the end of the tunnel, WoM can provide you more than a fighting chance to push USCIS make a relatively quick decision on your case.

In the past, immigrants filed WoM in federal court and within a few months or even weeks, their background check was cleared; and their Green Cards were ordered or they became the citizens of the U.S. The speedy process the immigrants had enjoyed after filing WoM was the result of USCIS sending expedited name check request to FBI whenever a case is pending in court. (USCIS “outsources” the Name Check process to FBI.)

However, with the WoM cases mounting, the Empire Strikes Back. Beginning from the end of 2006 and early 2007, USCIS has changed the policy not to automatically send expedite request to FBI unless the cases are dealing with one of the following scenarios: “1. Military deployment, 2. Age-out cases not covered under the Child Status Protection Act, and applications affected by sunset provisions such as diversity visas, 3. Significant and compelling reasons, such as critical medical conditions, and 4. Loss of social security benefits or other subsistence at the discretion of the USCIS District Director.”

One would think that would discourage immigrants filing WoM against the Empire. Well, at least the USCIS thought so, but they were completely wrong. Since early 2007, filing WoM to bring the justice into immigrants’ life has becomes a movement. Why? Because no matter how hard the USCIS fights back, the agency is at the short end of the reasoning and justice. It is true that the results from WoM suit would take longer to come out since more immigrants are filing the suit, but in many cases, it is still significantly shorter than waiting to no end. Actually, it is not unusual to see the Name Check has been dragged for longer than 3 years, 4 years, or even 5 years. And currently, the whole process of the lawsuit is about a half year.

to be continued...