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Mandamus fast vs. waiting slow: San Francisco-Oakland Bay Bridge new and old bridges, by Frank Schulenburg, Creative Commons license SA-3.0,

Mandamus and Administrative Procedure Act (APA) lawsuits against U.S. Citizenship and Immigration Services (USCIS) or the Department of State (DOS) seek to compel the government to decide long-delayed benefit requests. Mandamus/APA lawsuits can be used for:

  • Delayed applications for adjustment of status (I-485), asylum (I-589), or waiver of inadmissibility (I-601 or I-601A).
  • Delayed petitions for immigrant relatives (I-130), removal of conditional resident status (I-751), or U nonimmigrant status (I-918). 
  • Visa applications (DS-160 or DS-260) delayed at the National Visa Center or stuck in administrative processing at a U.S. consulate or embassy.
  • Pre-interview delay on an application for naturalization (N-400). 

For N-400 applications not decided by USCIS within 120 days after an interview, 8 U.S.C. § 1447(b) provides a separate basis for a district court to decide or remand the application.

Mandamus - Compelling a Government Officer to Perform a Duty

The legal authority for a mandamus action against a U.S. government official is at section 1361 of Title 28 of the U.S. Code. It provides:

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.

28 U.S.C. § 1361.

This statute requires the immigrant plaintiff to prove: (1) a clear right to what they are requesting, (2) a clear duty of the government official to give it to them, and (3) that no other adequate remedy is available.

Administrative Procedure Act - Challenging Unreasonable Delay

The U.S. Court of Appeals for the Ninth Circuit, which is the intermediate federal appellate court with jurisdiction over California, has held that the Administrative Procedure Act (APA) provides relief that is in essence the same as mandamus. See Vaz v. Neal, 33 F.4th 1131, 1135 (9th Cir. 2022). Section 555(b) of the APA provides that

within a reasonable time, each agency shall proceed to conclude a matter presented to it.

5 U.S.C. § 555(b).

And when an agency fails to act within a reasonable time, section 706(1) of the APA authorizes the following remedy for an affected party:

The reviewing court shall– (1) compel agency action unlawfully withheld or unreasonably delayed[.]

5 U.S.C. § 706(1).

The key question in most immigration cases is whether a delay in granting a benefit has become objectively "unreasonable." In determining whether the delay is unreasonable, a reviewing court generally considers the factors stated in the leading D.C. Circuit case of Telecommunications Research and Action Center (TRAC) v. Federal Communications Commission. These TRAC factors are:

(1) the time agencies take to make decisions must be governed by a "rule of reason;" (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is 'unreasonably delayed.'"

Telecommunications Research and Action Center v. FCC, 750 F. 2d 70, 80 (D.C. Cir. 1984) (cleaned up and citations omitted).

The weight to be given each TRAC factors is case-specific, but there are a few general considerations. First, a plaintiff is in a strong position if the agency has delayed beyond a statutory timeline (even if Congress did not provide a penalty for exceeding the statutory timeline). They are in an even stronger position if their case has taken longer than most other cases of the same type. Further, whether there is a reasonable justification for the delay in a specific case often depends on the underlying issues and the extent to which the plaintiff contributed to the delay. That means a potential plaintiff should understand current processing times and get an evaluation of the history and issues in their particular case.

The TRAC factor that is often under-appreciated, though, is the nature and extent of the interests prejudiced by the delay. This is where an attorney needs to explain how the delay is hurting their individual client. The facts matter. And a good attorney will present those facts in a way that helps the court appreciate that the government delay is causing serious consequences for the plaintiff.

Immigration Attorney for Mandamus and APA Lawsuits

Scott Mossman has been an immigration lawyer since 2003, and he filed his first APA lawsuit in the Northern District of California in 2006. He has continued to file these lawsuits in select cases in the years since.

Scott is admitted to practice before the U.S. District Courts for the Northern District of California (San Francisco, Oakland, and San Jose), Eastern District of California (Sacramento and Fresno), and the Central District of California (Los Angeles, Riverside, and Santa Ana). He offers representation in these courts to immigrants who have an unreasonably delayed application or petition.

For immigrants who already have an attorney representing them before USCIS or the State Department, Scott would be glad to limit his representation solely to the district court case. He will coordinate with the other attorney to ensure that their strategy and efforts align.