While the mandamus action (from the Latin for “to Command”) existed since at least Marbury vs. Madison it has become an increasingly important tool for immigration attorneys over the last few years. 5 U.S. 137 (1803). Specifically, administration policies, the Covid-19 pandemic, and a staffing shortage has greatly delayed most case progressing types. The standard course of action when faced with agency delay is to escalate the case through congressional inquiry, escalation requests to the agency, ombudsman, and requesting supervisory review. Unfortunately, these remedies have been increasingly ineffective or at times just ignored. In particular, national security check 221(g) processing, immigrant visa processing, I-765/I-539 H-4 extensions, K-1 visa processing, and adjustment of status cases have all faced historically-long backlogs.
When the standard methods of escalation and expediting fail, an immigration practitioner may have to resort to a federal Mandamus action to obtain a result in their case. A Mandamus action can be brought under the Mandamus Act 28 U.S.C. § 1361, which reads: “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 any agency thereof to perform a duty owed to the plaintiff.” Federal Courts have held “A court may grant mandamus relief only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Baptist Mem’l Hosp. v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010) Additionally, a practitioner can bring a Mandamus action under the Administrative Procedure Act (“APA”), which mandates that an agency adjudicate matters “within a reasonable time” and allows for federal courts to require agency action. 5 U.S.C. § 555. As a matter of practice, it is advisable to file under both statutory authorities as courts often handle them interchangeably.
Note that the federal Mandamus Act and APA allow for jurisdiction exclusively in the federal courts with venue generally being in the situs of the plaintiff (i.e. the local federal district) or the headquarters or location of the agency in question, most often the D.C. Circuit (notably the federal government will often move to dismiss cases brought in the D.C. Circuit rather than the local federal district). 28 U.S.C. § 1361; 5 U.S.C. § 555(b); 28 U.S.C. § 1391(e); Aishat v. U.S. Dep’t of Homeland Sec., 288 F. Supp. 3d 261, 272 (D.D.C. 2018). What is more, a successful Mandamus action does not mandate the agency provide relief for the plaintiff, but rather that they render a decision in the matter. Considering the cost, time, and stress related to federal mandamus litigation, it is advisable to only bring mandamus actions on cases with a high likelihood of success on their merits.
While federal litigation is often time-consuming and expensive, this process cuts both ways. With an increasing number of mandamus actions being filed in the immigration sphere, practitioners are reporting an increasing reluctance by the Department of Justice to meaningfully oppose these actions. Assigning a AUSA and participating in the discovery process can monopolize a significant amount of DOJ resources. Accordingly, often once the AUSA is assigned to an agency case involving immigration concerns, the AUSA will simply instruct the agency to make a decision on the case rather than prolong it through costly and time-consuming litigation. This decision renders the mandamus action moot and is then dismissed by the court. This amounts to the well-known maxim, the squeaky wheel gets the grease. To this author’s knowledge, there has been no systematic survey that details what the outcome of recent immigration mandamus actions. However, through anecdotal evidence it appears that this result is a plurality if not a majority result.
While the AUSA instructing the immigration agency to render a decision is an optimal outcome, it is not the only possible outcome, so savvy practitioners should prepare each mandamus filing as if it will be contested by the government. In defense of Mandamus claims, the government, inter alia, will often argue availability of another remedy, consular nonreviewability, lack of a mandatory duty or that the delay is not egregious. In re Core Comms, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008); Kerry v. Din, 135 S. Ct. 2128, 2140 (2015); Saavedra Bruno v. Albright, 197 F.3d 1153, 1159-60 (D.C. Cir. 1999); Villa v. DHS, 607 F. Supp. 2d 359, 363 (N.D. N.Y. 2009) Each of these defenses have their own body of case law and a practitioner would be well-advised to thoroughly research these areas prior to filing a Mandamus action.
Advising a client to enter the realm of federal mandamus litigation is understandably a difficult task. Alas, it is increasingly a required task with no outward indications of shortened immigration processing times in the future. When there is no other method, it is prudent to advise your client of the possibility of a mandamus action. As immigration practitioners it is imperative that we know the basic of mandamus action even if we are not comfortable undertaking litigation ourselves.