THE ABC'S OF IMMIGRATION - BRINGING MANDAMUS SUITS AGAINST THE INS

Nearly every person who has ever dealt with the INS knows that in some cases, the INS simply fails to act.  In these cases, there is ultimately only one action that the aggrieved party can take – to sue the INS.  This type of lawsuit is commonly known as “mandamus,” which is short for filing a writ of mandamus.  A writ of mandamus is a form of civil action designed to compel a government actor to perform a duty owed to the plaintiff (Lawyers reading this will know that, technically, under the Federal Rules of Civil Procedure, there are no writs of mandamus, only actions in the nature of mandamus, but for simplicity’s sake, this article will call it mandamus).  It is important to note that mandamus is not used to force the INS to reach a favorable result, but only to take action that it is legally obligated to take.  It can result in a denial of the application.

Before filing the lawsuit, there are a number of steps that should be taken.  This is so that, when the suit is filed, the plaintiff has clearly done everything they can, short of filing a lawsuit, to resolve the problem.  A plaintiff who appears in court without having attempted to resolve the situation in other ways will not be particularly sympathetic, whereas one who has will be.

The first step to take when processing on a case that has gone beyond the stated time is to make inquiries with the INS.  Members of the American Immigration Lawyers Association have access to fax numbers that can be used to make these inquiries at the four INS Service Centers, as well as numbers for local INS offices that are not always publicly available.  At the Service Centers, three fax inquires over a period of a month are required.  While there are no requirements for inquiries at local offices, attempting for a month is generally a wise decision. 

If no resolution has been reached at this time, the next step is to draw up the legal complaint that will be filed in court.  The suit will be filed in the federal court with jurisdiction over the petitioner or applicant.  There are a number of formal requirements for the complaint, such as including a statement that jurisdiction and venue are properly with the court.  The lawsuit must also lay out the facts of the case, including efforts that have been taken to resolve it.  A copy of the complaint should be sent to the INS office, along with a letter explaining the situation and saying that, if the case is not resolved within a certain period, generally 30 days, further action will be taken.  This step will often have the desired effect, if not producing a decision, at least prompting the INS to ask for additional evidence.  If the INS asks for additional evidence and continues to delay action after it is supplied, the entire process should be begun again.

If sending the complaint does not produced results, it should be rewritten to include the latest efforts to resolve the case, and sent to the INS again, and to the appropriate US Attorney.  This is the stage at which, in our experience, most cases are resolved.  The US Attorney, understandably, does not want to spend time in court defending the INS’s failure to take action.  The US Attorney contacts the INS office and generally pressures them to act.

If, after a month, there is still no action on the case, the complaint should be updated again and prepared for actual filing.  Procedures vary from jurisdiction to jurisdiction, but the general procedures are the same.  The complaint is taken to the clerk of court where it is registered as filed.  When filing a suit against the government, a copy of the complaint must be sent to the government actor who has failed to act (the head of the INS office involved), the proper US Attorney, and the US Attorney General.

Again, this action often has the effect of prompting the INS to take action.  If not, the parties proceed with the case.  As in any federal case, the first step is a conference with the judge assigned to the case, the plaintiff’s attorney, and the US Attorney representing the INS.  At the conference, the judge makes efforts to help the parties resolve the dispute.  If this effort fails, the case proceeds to trial.  Given the large caseload of federal courts, this process can take many months.  A few months after the trial, the judge issues a decision.  If the decision is favorable to the plaintiff, the decision will also include an order compelling the INS to take action on the application.