If your application for political asylum (or other immigration application) has been pending for an unusually long time, you should consider filing a writ of mandamus in the United States District Court. The writ is a powerful federal court remedy designed to ensure government accountability, uphold the rule of law, and combat unreasonable delays in the processing of your application for relief. The filing of the complaint itself normally triggers government action, and your interview should be scheduled. Here’s how the process works.
The writ of mandamus begins with the filing of a complaint in the federal court. You, the applicant, are the plaintiff, while the federal agencies involved, such as the Department of Homeland Security and United States Citizenship and Immigration Services are the named defendants. Yes, you would be suing the government to compel them to act. We know this sounds scary. It’s not. In fact, many government officers welcome the receipt of the complaint because without it, it will take years for them to get to your case (because of workload). One U.S Attorney assigned to a complaint I just filed thanked me for forcing the government to do its job.
Once the complaint is filed and the summons issued by the clerk of the court, it must be served on the named defendants. Because the federal government is a party to the action, it has 60 days to file an answer to complaint. Prior to the 60-day deadline, we are typically contacted by someone from the United States Attorney’s office who will request an extension of time to file their answer. As a matter of professional courtesy, we grant that extension and within the extended period, the government will track down your case.
After the government has reviewed the history of your case, an interview will normally be scheduled. Depending upon where you reside, this interview might be scheduled almost a year out. Once the interview is scheduled, most lawyers will enter a stipulation to stay the pending action until four or five months after the interview (if an asylum case). The reason it takes so long to schedule the interview is because of the number of pending asylum applications and so few asylum officers to decide them. This, coupled with necessary background checks, is why it also takes so long for a decision to be made. Once a decision is made, the mandamus case will be dismissed as the purpose of filing the action to begin with has been fulfilled.
Compelling the government to act (interview you) is different than compelling them to approve your case. Compelling the interview is the purpose of the mandamus. Compelling approval is not subject to federal court discretion. Instead, it is the result of a well-prepared meritorious case including preparing and accompanying you to your interview. This should not be interpreted as a guarantee as to the outcome of your case because not all cases are approved.
If your application has been pending for an unusually long time with the immigration service, please feel free to contact us to discuss whether the powerful writ of mandamus is appropriate for you.
ABOUT THE AUTHOR
RICHARD M. WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court. Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.
Committed to public service, Mr. Wilner served as a Commissioner on the State Bar of California’s Immigration and Nationality Law Advisory Commission. Mr. Wilner is the former co-chair of the Orange County Bar Association’s immigration law section and also serves on the board of the Orange County Jewish Bar Association. He provides pro bono representation to active-duty soldiers from the United States Armed forces in their immigration needs. He has served as the former Military Liaison for the Southern California Chapter of the American Immigration Lawyers Association.
A native of Los Angeles, California, Mr. Wilner received his law degree (Juris Doctor) as well as a Master of Laws (LL.M.) in Transnational Business Practice from McGeorge School of Law, University of the Pacific and the University of Salzburg, Austria. He also received a Certificate in International Law from the National University of Singapore and Bachelors of Arts degrees in Philosophy and Religious Studies from the University of California in 1992. He has worked in Thailand and Vietnam.