N-400 Naturalization / Citizenship Application Delay – Consider Filing a Writ of Mandamus
Your N-400 Naturalization application has been pending for one year, two years, three years. You make an InfoPass appointment to ask about the delay and you’re told that your application still being processed without any further explanation.
I am beginning to take more frequent calls about just this scenario from understandably frustrated citizenship applicants.
One possible response is to file a Writ of Mandamus in federal court to compel the USCIS to act on your N-400. Writs of Mandamus are now being used with more frequency and with more success by immigration lawyers to get action on their clients’ applications for both citizenship and adjustment of status applications when the government’s delay is unreasonable and inexplicable. Here are the basics:
Basically, a Writ of Mandamus is filed against the USCIS to get a Federal Judge to order the USCIS to do what it is required to do anyway but, for some reason, is just not doing. Technically, the claim is filed under 8 United States Code 1447(B). Usually, the government’s answer is that it’s doing a thorough, time-consuming security check and that’s why the process is taking so long. Federal Courts, however, have not been reluctant to order the government to act and in the United States District Court in Philadelphia, the Court has recently been very open to such claims by naturalization applicants.
For example, in August of 2007, in the case of Elhaouat v. Mueller, the court found that it had jurisdiction over an application for naturalization even though the naturalization interview had not even taken place yet. The court ruled that the USCIS had a duty to process naturalization applications within a reasonable period of time. When the Court decided this case, the naturalization application had been pending for about three years!
Similar rulings were made by the Philadelphia based federal court in other cases such as Ajmal v. Mueller, Han Cao v. Upchurch, and Hoyoung Song v. Klapakas. The federal court in the Western District of Pennsylvania entered a similar ruling in the case of Li Duan v. Zamberry. In all of these cases, mandamus actions were successful; the courts all ruled that the government’s delay was not justified and the USCIS was ordered to act.
In New Jersey, the federal courts have made similar rulings but the New Jersey courts do not appear to be as open to Mandamus actions as the federal courts in Pennsylvania. In two cases, Xu v. Chertoff and Pool v. Gonzales, the New Jersey court held that the USCIS had a non-discretionary duty to process the applications and that the government failed to give a satisfactory explanation for the delays. Unfortunately, however, in New Jersey, the courts have also ruled in the government’s favor, deciding that the USCIS does not have a clear duty to act within any particular time period.
Pennsylvania courts seem to be more open to such Mandamus actions.
My next posting on Mandamus actions will discuss how to get your attorneys fees paid by the government if you are successful.
