The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff."
In a small percentage of cases, USCIS is delaying by years the granting or denying of Citizenship and Green Card applications. If you are in this situation, you may consider filing a petition for mandamus relief with a federal district court. By filing for mandamus relief, you are asking the court to approve or deny your application.
The complaint is filed with the federal district court that has jurisdiction over the director of the local USCIS office that has held your application. USCIS will have 60 days to respond to the complaint. The court will generally send the case back to USCIS and instruct them that they must take action within a certain period of time.
USCIS claims that FBI background checks are to blame for the excessive delays, but whatever the case may be,
What is a 1447(b) Complaint and Who Qualifies?
8 USC 1447(b) is a statute which specifically provides for court review of a stalled naturalization application when 120 days have passed since the naturalization interview. The court will provide one of two forms or relief: i) an decision of the naturalization application in the court and by the court, or ii) remand the case to USCIS for immediate decision.
When may I Apply for Relief in the form of Mandamus or 1447(b)?
For mandamus complaints, if your case is well beyond the normal processing time, and you have taken actions to move your case forward to no avail, your case may be ripe for filing. As for 1447(b), such a complaint can be filed immediately after 120 days pass without having to demonstrate anything else.
What are the Advantages and Limitations of Mandamus and 1447(b) Complaints?
Uncertainty is obviously a source of great anxiety. When an applicant takes action to file a mandamus or 1447(b) complaint at the appropriate time, they can finally anticipate that their case will be resolved within a certain period of time.
The drawback to filing a complaint to move your naturalization or green card application case forward is that it may lead the immigration service to be vindictive and find some way of denying your case. When an individual does file such a complaint, he or she should be fairly certain that USCIS will not be able to find a reason to deny their case, such as a past criminal history or any past documentary submissions with discrepancies which may be construed as fraudulent.
Why Hire an Attorney in a Writ of Mandamus or 1447(b) Case?
An attorney is trained to prepare a properly formatted complaint outlining the cause of action, relief sought, and basis for relief. You must serve the proper parties, and should understand procedural rules to pursue either a writ of mandamus complaint or a 1447(b) complaint. An attorney who has successfully pursued complaints in the form of writ of mandamus of 1447(b) will ensure that your case is properly filed with the district court.
To discuss Mandamus and 1447(b) complaints with an experienced immigration lawyer from the Shah Peerally Law Group, feel free to contact us by email or call us.
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