Recently, I have had many consultations with frustrated applicants seeking remedies for their delayed applications. We have seen naturalizations taking over 3 years without any substantial updates, adjustment of status applications that has taken over 4 years still under review to affirmative asylum applications pending for over 7 years with no interview date in sight. We understand that USCIS is still catching up from backlogged cases caused by the COVID-19 pandemic. However, people are becoming increasingly frustrated with the process. When unreasonable government delays occur, the only true effective remedy is to file a writ of mandamus with the federal district court to compel the government to act in a timely manner.
USCIS posts its normal processing times on its website available at: https://egov.uscis.gov/processing-times/. Generally, an inquiry is not allowed by an applicant when an application is still within normal processing time. Normal processing time can vary from months to years. However, government agencies have a non-discretional legal duty to complete the processing of applications within a reasonable time. Pursuant to 8 U.S.C. §1571(b), Congress has indicated that “processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”
When USCIS or a government agency delays its adjudication, a lawsuit can be filed in U.S. Federal District Court to compel action. These lawsuits are called a Writ of Mandamus. A mandamus action may be filed in court to compel USCIS, or any administrative agency, to act where there has been an unreasonable delay that causes harm to the applicant. A mandamus essentially forces the administrative government agency to act. However, please also note that a mandamus does not give the court the power to grant or deny a case on its merits. It only compels the government agency with jurisdiction over your application to act.
In February, a couple consulted with me about a pending I-751 removal of conditional status case that had been pending since 2017. The applicant also filed for her N-400 application for naturalization which had been pending since 2018. The couple was interviewed in 2019 and the case remained pending. The couple tried to file inquiries every 6 months but had been getting the same boilerplate response indicating that their case was still being processed due to government delays. The couple was frustrated and did not know what to do. Upon engaging with our office, we immediately filed a writ of mandamus with the Eastern District Court of California. Within 30 days, the couple was scheduled for another interview. Promptly after the interview, the I-751 was approved and the oath ceremony for the N-400 was scheduled.
If you are facing an unreasonable delay in your immigration case, consult with an experienced immigration lawyer to see if mandamus is appropriate for your case.
ABOUT THE AUTHOR(S)
Chien-Yu (Michael) Wang is the Managing Attorney at Wilner & O’Reilly’s Sacramento office. He handles both family and business-based immigration matters along with removal defense. Mr. Wang is admitted to the State Bar of California and the U.S. District Court for the Central and Eastern Districts of California. He is a member of the Los Angeles Country Bar Association, the Southern California Chinese Lawyers Association, the Sacramento County Bar Association, and the Asian-Pacific Bar Association of Sacramento.
Mr. Wang graduated from the University of California, Davis with a Bachelor’s Degree in Japanese and East Asian Studies, and also studied at the Waseda University in Tokyo, Japan. He earned his Juris Doctorate degree from Southwestern Law School, graduating at the top of his class.