WRIT OF MANDAMUS - what we can do if our cases are current but not adjudicated by USCIS past current processing times

[asdfg 18]

My original post is here:

http://www.visajourney.com/forums/topic/379116-after-rfe-no-case-status-update/

Under this thread I will, as promised, share the results of my research into successful WOM cases involving unjustified delay in processing time by USCIS.

Remember: USCIS is subject to law and must obey by directive of law just like any person and the common adage that "they can do whatever they want" is just not accurate.

For starters read about former United States Federal Judge Nancy Gertner (http://en.wikipedia.org/wiki/Nancy_Gertner).

She made some interesting rulings aside from Mandamus Case involving pending I-485.

Next, I am going to research and find actual case/ruling that she made in District Court of Massachusetts in favor of plaintiff to adjudicate the AOS petition which USCIS was refusing to do.

I see references to the ruling by Judge Gertner (http://fl.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20080120_0000149.MFL.htm/qx) where each adjudicating court either quotes her or affirms her interpretation of court jurisdiction in deciding the mandamus acts filed by pending AOS applicants (NOTE: this is not about N-400 pending applications, but I-485 pending past the posted by USCIS timelines).

I will analyze her case ruling , find references to other successful cases and then try to research and find cases where WOM's failed. We will then further scrutinize and try to detect the patterns, whether denials were due to conflict of interpretation of courts' jurisdiction over WOM matters or whether there were other factors affecting the outcome regardless of court's view on jurisdictional matter. If former is the case we look up the Circuit Courts and try to find out under which Appellate Courts they fall and whether , depending on ones geographic location, one would have better or lower chances of succeeding in court all other factors remaining the same.

Then, if permitted, I will post links to forums posts where individuals who successfully took their cases to Circuit Courts describe the entire process as they go.

Finally, as I go through the entire process myself, I will post and share my own personal experience and hopefully encourage more of the others to follow my lead and challenge USCIS in Courts demanding the due adjudication of their petitions.

I welcome any of the participants to contribute to this thread, particularly if you have filed WOM in past or know of someone who did.

Good luck to all and to be continued.

[Harpa Timsah 13,258]

Dude, you are in AP. Your interview was ONE month ago. You need to relax. Your urgency says a lot about your case, IMHO.

[aaron2020 11,651]

Patience.

Getting yourself worked up is not going to help. You are premature with the writ of mandamus. If you want the US government to hurry up and act without fully running a complete background check, prepare to be be denied.

Immigration is a privilege, not a right for a foreigner.

Play this dangerous game if you want, it's going to bite you in the end.

Patience.

Getting yourself worked up is not going to help. You are premature with the writ of mandamus. If you want the US government to hurry up and act without fully running a complete background check, prepare to be be denied.

Immigration is a privilege, not a right for a foreigner.

Play this dangerous game if you want, it's going to bite you in the end.

[asdfg 18]

Dude, you are in AP. Your interview was ONE month ago. You need to relax. Your urgency says a lot about your case, IMHO.

Harpah Timsah,

My case was filed on January 26th 2012.

My interview was in May 2012.

That's not one months ago.

Three additional factors to consider:

#1. According to USCIS posted chart (they always post it late so you need to look up the "as of" and "processing" dates on the chart instead of posting date) the USCIS AS OF 05/31/2012 was processing cases filed on 01/05/2012.

Again, according to USCIS that date (01/05/12) corresponds to an EARLIEST case they were processing AS OF 05/31/2012

#2. My delay is purely artificial and is due to incompetence of USCIS IO. My latest RFE says my case is in "suspence" or "hold" until USCIS receives the response (which I have a proof of delivery by FedEx, sent by my attorney, and also I handed original response in person).

This RFE is unreasonable to begin with: Question in Part 3 C 1.b specifically states that traffic violaitons are excluded if traffic incident didn't involve an arrest (I was never arrested!) , didn't involve drugs/alcohol (I was never involved in any!) and resulting penalty wasn't in the amount of $500 or more ( I was NEVER penalized $500 or above for traffic violations).

Now that we responded to RFE USCIS took the position of "we have 120 days from time we got it to even acknowledge that we have it" (Yes, it was 60 days on the phone but when I scheduled the latest INFOPASS they granted themselves additional 60 days. That brings total time processing to just under 10 months IF they even make a decision by then , while USCIS Baltimore Office inaccurately claims that as of 05/31/2012 they were working on 01/05/2012 as earliest filed case.

Look at these discrepancies and delaying my case far beyond their posted limits.

Why should I wait another 6 months or more before filing WOM when I know I can go ahead and do it much sooner? Just because USCIS wants me to wait and keep me on hold? Who said we have to do what they want? Are they doing what we want?

So, let no one do what they arbitrarily wish and instead let the District Court compel the agency to make a decision.

After all we are not trying to force agency to make a favorable decision, but we only request that agency act and discharge it's duty (whether favorable or unfavorable) and then we would know better what to do next.

Who made it a common sense wisdom to assume that USCIS can do all they want and never adjudicate our petitions just because they wish so?

This is United States of America, not some other third world country with no independent judiciary and no laws in place to keep everything in check and balance.

It is our duty, as future Citizens of the United States, to hold accountable all those in public service and with responsibility to discharge duties in the office of the public trust.

We owe it not only to ourselves , but to our adopted country and to generations to come.

And there can't be greater urgency than that.

[asdfg 18]

Patience.

Getting yourself worked up is not going to help. You are premature with the writ of mandamus. If you want the US government to hurry up and act without fully running a complete background check, prepare to be be denied.

Nope, it's not BG check. First, FBI name checks no longer take longer than 6 months , all backlogs cleared and under 2008 memo USCIS must make decision if case pending more than 180 days, reserving a right to reverse the decision if anything negative ever comes up.

Second, it is very clear from RFE I got that "this office is not able to complete the processing of your case until you submit the requested evidence". There it says what is delay due to.

And, add injury to insult, the Requested Evidence is specifically EXCLUDED from what has to be documented according to the Question 3 C 1.b as well as instructions to form I-485.

Over 6 months I am waiting where others get adjudicated in under 3 months elsewhere and under 5 months at most in Baltimore, MD - talk to me about patience.

Prepare to be denied? We will see about it in court. My attorney won 27 WOM cases on record. Let them deny it, we will not only sue them to substantiate the grounds of denial but for attorney fees and compensation of other losses (undue hardship, stress) as well.

Immigration is a privilege, not a right for a foreigner.

Play this dangerous game if you want, it's going to bite you in the end.

Patience.

Nobody says immigration is a right.

I encourage you to study the concept of WOM.

The petitioner is entitled to have his or her petition decided.

That is not to say petitioner is entitled to any specific outcome, only that decision must be made, responsibility must be discharged (and of course decision must be legal and authorized under the law, not just because some dimwit USCIS IO wishes so).

Enough of patience, too many of us are put through this kind of stress daily and for no reason whatsoever.

If I am not eligible, fine, deny me and tell me why, but why keep file in a bin to collect the dust for the next 4 months , just because you asked me to document a traffic violation that is specifically excluded from documenting?

No patience, sorry, straight to the court and court only! Let the Judge decide.

I will wait, of course, some more because I have to allow for the results of Congressional inquiry as well as responce from Ombudsman , so I may give it still a few weeks, but in the meantime I am in full preparation of WOM and under this trhead I will share with others all the relevant to WOM info I can gather.

Let more of us take it to court and bring some attention to what a stress and havoc untrained USCIS IO's cause to so many fathers, mothers, husbands, wives and children of United States Citizens.

Edited August 2, 2012 by asdfg

[Anh map 2,098]

It's all one big conspiracy.

[Andrea&Henry 311]

Patience.

Getting yourself worked up is not going to help. You are premature with the writ of mandamus. If you want the US government to hurry up and act without fully running a complete background check, prepare to be be denied.

Immigration is a privilege, not a right for a foreigner.

Play this dangerous game if you want, it's going to bite you in the end.

Patience.

Getting yourself worked up is not going to help. You are premature with the writ of mandamus. If you want the US government to hurry up and act without fully running a complete background check, prepare to be be denied.

Immigration is a privilege, not a right for a foreigner.

Play this dangerous game if you want, it's going to bite you in the end.

I couldn't be MORE AGREE with that!!! As a US citizen, you have the right to marry whoever you want to, but is US goverment right to approved or denied someone else access to the Country, cause is his duty to protect us. I'm not an american citizen, I was born and raised in Venezuela. I came here with a k1 visa and Im still waiting for my AoS. I know that the wait, can be very very frustrating , also the lack of information, the RFE, etc etc I went through all that too, but I feel like they are doing the best they can. Can u imagine how many people file everyday? thousands and thousands of cases. So in my opinion, chill out and relax, you have already been approved. Be thankful for that, cause not everybody is as lucky as you are. And back to the topic, the foreign people, like me, we should be thankful everyday cause the US goverment give us a chance to live here with our love ones and created a system, not perfect of course, to process and help legal immigration. We are not in a position to complain about it. Living in a new country, we have to earn our spot in the boat!!

[asdfg 18]

mmigration is a privilege, not a right for a foreigner.

I couldn't be MORE AGREE with that!!!

Andrea & Henry,

WOM or Writ of Mandamus is not "a right to immigrate" , please do not mix these two vastly different

concepts.

WOM is a right to have your petition adjudicated rather than USCIS abdicating it's responsibility and

arbitrarily throwing your case into the dust bin without having to ever tell you WHY they can't just pick it up and

make a decision on it.

See "Tang v. Chertoff" (where Judge Gertner "held that the

jurisdiction-stripping language in the INA only bars review of the “substance of an adjustment of

status decision,” leaving the “pacing of such a decision” subject to judicial review.6 “Further,

courts have noted that to defer to agencies on pace of adjudication would be effectively to lift the

duty to adjudicate applications altogether.”, source Abdi vs Chertoff, Civil action # 08-11302-JLT ).

Edited August 2, 2012 by asdfg

[Andrea&Henry 311]

I know, I can read... but I feel like you are doing a whole drama around the topic, when your case is basically done and approved. I truly believe, that USCIS workers doesnt sits on their places to do absolutely nothing, and watching the package getting dusty. One thing I know, cause I met a USCIS worker a few years ago, is that they recieve thousand of cases everyday. Sometimes when they are very very busy they have to hire a lot of news workers cause they are too full. And check every single file is not easy, check all the backgrounds. You know what its like having more 3000 thousand of cases and only a few hundreds of workers? Cause is not only k1 visa but also, k2, k3, j1, j2, b2 ect ect etc.

Besides that, he told me when they have a case with RFE (wich they hate, they would love to have your case complete) they cant wait for you, to send the response, and stop the whole process until they get your response back. If they have a package incomplete, they will send you a rfe, but they will keep working with other cases. Once they got your evidence, they will keep working with yours.

But also, there's only a few USCIS in the country who are able to process the packages. 6 or 7 compare to the 50 states and petition overseas.

The point is that I can understand why are you angry, and I know that the system is not perfect. But you are NOT an american citizen yet and you feel with the right to open case, basically to tell USCIS workers HOW to do their JOB. People who has been working in immigration process long ago BEFORE you dream to live in this country. Im sorry to say this, but I found it TOTALLY disrespectful.

And the things is that your case may process in some point, maybe wich I doubt it, but things will remain the same. You are not the first one.

My advice is instead of wasting your time and your money, and if you want to be a good future AMERICAN CITIZEN, show a little bit of respect for american law, procedures and standars.

That's a good start

[Hypnos 6,578]

The fact that USCIS seem to have made a clear error in asdfg's case and are now trying to have him fix their mistake would seem to be the pertinent part of this discussion.

Edited August 2, 2012 by Hypnos

[asdfg 18]

Thanks, Hypnos.

I think the user above , being from Venezuela, may have somewhat different concept of the public service and duty of public servants as opposed to concept we have here in the United States. I don't blame him/her.

Moreover, my resolved and firm stand may be due to my living here and adopting the values, the culture and the spirit of this country and it's founding principles which, over the course of time, perhaps influenced me to a greater degree than if I was a most recent newcomer.

I do not take offense at the user but hope he/she will make an effort to better understand what my frustration comes from and what remedy I hope to seek from the Judiciary, if necessary.

If only those who do not know , do not feel the pain and frustration that is amplified by clear recognition of error that was not of our doing or responsibility in causing this undue delay, if only they knew what it is to be in our stead, perhaps they would take less unfavorable view of the judicial remedies we may be forced to seek.

Edited August 2, 2012 by asdfg

[Little_My 464]

Not having a decision two months after your interview, in my opinion, is not really undue delay. I also think you might be jumping the gun here a bit..

Edited August 2, 2012 by Little_My

[Hypnos 6,578]

It's more the fact that they misapplied the law and wrongly issued him an RFE on a demonstrably false basis which is the crux of the issue.

Waiting is one thing, but suffering at the hands of a USCIS mistake is quite another. It's something that (fortunately) most people do not experience and will never experience, but to those few of us that it occurs to that is not exactly a comfort.

Whilst a WOM might be a little premature in this case (I would personally wait to see what a congressional enquiry yields and also ask the DHS Ombudsman to look into it first before I even considered filing a WOM), "forewarned is forearmed" and there is no downside to at least researching the possibility.

Edited August 2, 2012 by Hypnos

[Andrea&Henry 311]

Being from Venezuela doesnt have anything to with it. My opinion es base in respect other countries's standars and procedures. I would very pissed if some newbie comes and try to immigrate to my country and tells me how to do my job, and how to apply the law and procedures. If they made a mistake with your case, I think they'll find the way to fix it, wich I think they did, cause you are already been approved.

As I told you, I'm not trying to offend you, but I see this whole deal totally senseless, cause is already fix it. You are approved and I think that's the more importan thing instead of opening a case to try to "fix" something you thinks is wrong. And probably is wrong but I dont think is your job to do that. Your spouse should do it instead of you. She/he is the US citizen not you.

My whole family is out of Venezuela in Europe, and we know something about immigration laws. And also we know that making a huge deal of something basically pointless when you arent a permanent resident yet, immigration people may see you like a troublemaker. And its ok you are not committing a crime or making fraud and in theory you have the right to do what you are doing, but think well if is it worth it, and if you deeply feel inside you will get something from this.

Btw, Im a she

[Hypnos 6,578]

I've not seen any indication that asdfg is approved; the last thing he mentioned was that the RFE was (wrongly) issued.