Can we file a writ of mandamus to have the local USCIS office forward our appeal to the BIA?

Asked 11 months ago - New York, NY

It's been a year since we filed an appeal with the local office and they still haven't sent it to the BIA to render a decision. Can we file writ of mandamus??

Attorney answers (5)

  1. Alexander Joseph Segal

    Contributor Level 20

    6

    Lawyers agree

    1

    Answered . You can do it if you know how.

    NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866)... more
  2. Alexander M. Ivakhnenko

    Contributor Level 20

    8

    Lawyers agree

    Answered . A Writ is a federal civil action to compel a certain federal agency to do their job when the duration of that action is unreasonably delayed essentially. You may access the Writ applicability to this case by bringing your file to an office of an experienced immigration attorney. I recommend Alexander Segal, for that matter.

    DISCLAIMER The answer given above by the lawyer serves for educational purposes only and provides general... more
  3. F. J. Capriotti III

    Contributor Level 20

    6

    Lawyers agree

    Answered . Perhaps ... more information is needed.

    Meet with an experienced federal immigration litigation attorney.

    PROFESSOR OF IMMIGRATION LAW for over 10 years -- franco@capriotti.com -- www.capriotti.com -- This blog posting... more
  4. Kevin Lawrence Dixler

    Pro

    Contributor Level 20

    5

    Lawyers agree

    Answered . You can, but you will have to prove to the court that it has the power to order USCIS to do so. Many cases are lost, because the party who sues is unaware which laws allow the court to order an agency to do its job and what facts are needed to justify such an order. Good luck.

    This is general information, not legal advice, and does not create an attorney client relationship.
  5. Jeffrey Adam Devore

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . This is one of the problems with appealing certain USCIS denials to the BIA. You have to file the Notice of Appeal with USCIS and they sit on it for what can often be years (if not what seems like forever) before forwarding it to the Board which can then take years itself to render a decision. Thus, filing an appeal is not always the best way to proceed.

    If the amount of time has been unreasonable you can certainly file a complaint in U.S. District Court requesting the Court to issue a writ of mandamus compelling USCIS for forward the record of proceedings to the BIA. However, like the saying goes, you need to be careful what you ask or or you might get it. Depending on the facts of the case you may in fact be better off (believe it or not) without a decision on the appeal as a denial is without prejudice to the filing of a new application. Additionally, you need to anticipate the defenses that USICS and the U.S. Attorney's Office will present.

    Before rushing to file in Federal Court consult with an immigration attorney who ha experience dealing with cases of your type and Federal Court litigation. Not many immigration attorneys have experience in the latter and you definitely want someone who knows his or her way around the Federal Courtroom as it's much different than Immigration Court.

    While this answer is provided by a Florida Bar Certified Expert in Immigration and Nationality Law, it is for... more

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