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

[Que Saudade 284]

As NIKE says, "Just do it"!

If you are absolutely sure you case has no chance to be denied and you have the money to pay a lawyer, by all means go for it. Arguing with members here and stirring a hornets nest is not doing you or anybody else any good. If there is the slightest of imperfection with your case that can allow USCIS to deny your case, you will have the answer to your writ of mandamus.

What is the purpose of this thread now? To prove that you know what a writ of mandamus is? To try and recruit everyone to file a writ of mandamus?

Just file the WOM already.

[bigdog 377]

On the WOM, i spoke with an reliable attorney, he said only if they are a year past due.

[asdfg 18]

On the WOM, i spoke with an reliable attorney, he said only if they are a year past due.

bigdog, don't take my word for it. Even my attorney who advises me , you don't have to rely on his saying that WOM can be filed right away as soon as case is beyond processing time.

I suggest you ask , instead , a former INS trial attorney and a lawyer with nationwide recognition who specializes in successfully suing USCIS and winning cases, inclusing WOM's, when appropriate under the law.

The name of the attorney is Carl Shusterman, you can find his contact info here http://shusterman.com/

I asked him and he told me what my lawyer said: I CAN file a successful WOM in Federal Court having jurisdiction over my case.

Of course I will give it just a little more time, wait for 60 days after RFE response sent as well as results of Congressional inquiry and Ombudsman. But as soon as 60 days time limit nears I will have my lawyer prepare the case for filing , then it's 7 days to US Attorney to decide if they want us to file WOM or not and then , within 60 days of filing, the USCIS will have to justify any further delays in case processing.

[bigdog 377]

bigdog, don't take my word for it. Even my attorney who advises me , you don't have to rely on his saying that WOM can be filed right away as soon as case is beyond processing time.

I suggest you ask , instead , a former INS trial attorney and a lawyer with nationwide recognition who specializes in successfully suing USCIS and winning cases, inclusing WOM's, when appropriate under the law.

The name of the attorney is Carl Shusterman, you can find his contact info here http://shusterman.com/

I asked him and he told me what my lawyer said: I CAN file a successful WOM in Federal Court having jurisdiction over my case.

Of course I will give it just a little more time, wait for 60 days after RFE response sent as well as results of Congressional inquiry and Ombudsman. But as soon as 60 days time limit nears I will have my lawyer prepare the case for filing , then it's 7 days to US Attorney to decide if they want us to file WOM or not and then , within 60 days of filing, the USCIS will have to justify any further delays in case processing.

Shusterman has a great reputation, just relating what I was told. Always consult legal counsel ( Disclaimer).

[asdfg 18]

Shusterman has a great reputation, just relating what I was told. Always consult legal counsel ( Disclaimer).

A lot of immigration lawyers (ones with poor knowledge of INA and pure assumption based actions) will give you lame

advises. I had an immigration attorney who literally told me that $150 seat belt ticket could be a felony or misdemeanor, therefore must have been dutifully reported and now has to be thoroughly investigated and just go wait another year before they look at it

Seriously, there are immigration "lawyers" like that. That's why , on a separate thread, I posted how you must be very careful and thorough when selecting your legal counsel.

Just because someone has a title of a lawyer and calls themselves an expert doesn't really mean they know anything about law they are practicing. Unfortunately(!) it's true and one of the main reasons why many people suffer from ineffective assistance of counsel out there.

Always do thorough vetting and consult the best attorneys you can.

Good luck to you!

Edited August 3, 2012 by asdfg

[bigdog 377]

A lot of immigration lawyers (ones with poor knowledge of INA and pure assumption based actions) will give you lame

advises. I had an immigration attorney who literally told me that $150 seat belt ticket could be a felony or misdemeanor, therefore must have been dutifully reported and now has to be thoroughly investigated and just go wait another year before they look at it

Seriously, there are immigration "lawyers" like that. That's why , on a separate thread, I posted how you must be very careful and thorough when selecting your legal counsel.

Just because someone has a title of a lawyer and calls themselves an expert doesn't really mean they know anything about law they are practicing. Unfortunately(!) it's true and one of the main reasons why many people suffer from ineffective assistance of counsel out there.

Always do thorough vetting and consult the best attorneys you can.

Good luck to you!

Mucho opinions by everyone in this game, and don't disagree with you on the lawyer issue at all. We suffered from at one during our K1 and then did it on our own for AOS. Be Safe

[asdfg 18]

Mucho opinions by everyone in this game, and don't disagree with you on the lawyer issue at all. We suffered from at one during our K1 and then did it on our own for AOS. Be Safe

Thanks bigdog.

I am absolutely fearless of whatever decision they make and only thing that makes me frustrated is the fact that they artificially created this delay by making me change my answer to YES (whereas I-485 specifically excludes traffic tickets) and then issuing RFE for infractions that do not warrant RFE (never been arrested, never had drug/alcohol related traffic stop, never ordered to pay $500 or above for a traffic fine etc).

If there is a legitimate reason to deny me, fine, deny me and show me the cause. Why keep my file in a dust been instead? Suppose I am a bad guy , why delay case by making me think it's BG related and I may be delayed due to something they are digging in my past? If I was a bad guy I would flee 100 times already since the RFE and they would never be able to apprehend me. Why give such chance to bad guys?

And if I am not a bad guy then why torture me mentally and make me wait triple of what everyone else waits? What is the purpose of this? Why artificially create delays by wrongfully changing my answer and then asking me to document something that is specifically excluded then add insult to injury telling me you will take another 120 days to look at it?

I just don't get it and WOM seems to be the only remedy in a case like this.

Edited August 3, 2012 by asdfg

[Mike B. 231]

Thanks bigdog.

I am absolutely fearless of whatever decision they make and only thing that makes me frustrated is the fact that they artificially created this delay by making me change my answer to YES (whereas I-485 specifically excludes traffic tickets) and then issuing RFE for infractions that do not warrant RFE (never been arrested, never had drug/alcohol related traffic stop, never ordered to pay $500 or above for a traffic fine etc).

If there is a legitimate reason to deny me, fine, deny me and show me the cause. Why keep my file in a dust been instead? Suppose I am a bad guy , why delay case by making me think it's BG related and I may be delayed due to something they are digging in my past? If I was a bad guy I would flee 100 times already since the RFE and they would never be able to apprehend me. Why give such chance to bad guys?

And if I am not a bad guy then why torture me mentally and make me wait triple of what everyone else waits? What is the purpose of this? Why artificially create delays by wrongfully changing my answer and then asking me to document something that is specifically excluded then add insult to injury telling me you will take another 120 days to look at it?

I just don't get it and WOM seems to be the only remedy in a case like this.

Yup. Most people here are total statists. "But but but! The government says..." Never forget that the government isn't your friend here, it is your adversary. Of course you have to satisfy the law, but once you have done that and demonstrated so, if they continue to screw you, then treat them like the adversary that they are.

People are getting riled up because you might have "insulted the government?" Give me a break. I'm happy to insult the government. I'll do it right now: the federal government is largely poorly-run and has adopted policies that neither further the interests of the American people nor correspond to the philosophic principles of the American Revolution. There I said it. So what? Is anyone going to shed a tear for the government of the United States? "What if they were offended?! Please, somebody, think of the poor offended government!"

Unreal.

Edited August 3, 2012 by Mike B.

[asdfg 18]

Yup. Most people here are total statists. "But but but! The government says..." Never forget that the government isn't your friend here, it is your adversary. Of course you have to satisfy the law, but once you have done that and demonstrated so, if they continue to screw you, then treat them like the adversary that they are.

People are getting riled up because you might have "insulted the government?" Give me a break. I'm happy to insult the government. I'll do it right now: the federal government is largely poorly-run and has adopted policies that neither further the interests of the American people nor correspond to the philosophic principles of the American Revolution. There I said it. So what? Is anyone going to shed a tear for the government of the United States? "What if they were offended?! Please, somebody, think of the poor offended government!"

Unreal.

Mike, don't forget that Judiciary that made anyone look like wasteful fool after lagging your FOIA requests is also Government , one that is in charge of making sure everyone complies with the law.

Ultimately People here vote and elect lawmakers and a top executive who then appoints judges to keep everything in balance. So, if anything goes wrong in a major way it is People who are ultimately responsible and have a capacity to fix it by voting the right candidates in.

If People resign their responsibility or make a poor choice who is to blame?

That's as far as your general affront on Government concerned.

In this particular case (RE WOM) I am not insulting the Government, not because I can't (under 1st Amendment I can say whatever I want and it is strongly protected by SCOTUS right ,with only few specific restrictions) but because it would be unfair.

If I expect and demand the fairness how can I do the opposite?

And I consider it unfair to insult even an executive branch or even only a USCIS for an error made by one moron at Baltimore, MD USCIS office.

If my Congressional inquiry results in "Get the H out of here!" response, furthered by Ombudsman sending me a "Are you still here, you scumbag!?" letter which then follows by US Federal Judge telling me "We are going to have you screwed because we can" and USCIS denying and court affirming the decision with "You are eligible and there is nothing in law to deny you but we will deny you anyway because we don't give a hoot about law, just because we can" then I think the entire government will fairly deserve to be called inept and stupid.

And if it was the case I would immediately and voluntarily depart the US and I would never ever want to ever visit this land again.

But I think it is a far cry from it. So, instead, I am preparing to fight in court and ask a branch of government with authority to command the other branch to discharge it's duty as it must under the law it serves.

I opened this thread to discuss the process.

Edited August 3, 2012 by asdfg

[asdfg 18]

Tang v Chertoff

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gertner/pdf/tangmtd.pdf

This is the case that was decided by Federal Judge Judge Gertner of MA.

In words of the Judge who granted petition in favor of Plaintiffs:

"I cannot accept the argument that, simply because adjustment of

status is a form of discretionary relief, there is no limit to

the length of time the USCIS may take processing applications.

The duty to act is no duty at all if the deadline is eternity."

There, you have it. Anyone with AOS pending beyond posted processing times, you don't have to wait for eternity to have your case adjudicated.

It is worth noting that back in the days (prior to 2008 USCIS memo) majority of delays were very extensive (beyond years) due to name cheks and background checks carried out by FBI (ISIS and FBI FP check gives instant results but name checks used to take much longer if there was any "hit", because a human personnel had to be assigned to the task of viewing the pertinent file and , moreover, because the task was under the control of a separate agency (Federal Bureau of Investigations) USCIS used to take a position that it had no control over it and it couldn't act unless it got clearance from relevant agency.

Now FBI cleared all backlogs per USCIS Congressional testimony (following the 2008 memo).

They also added staff to review relevant cases expeditiously (one of the reasons cited was National Security, to make sure that ineligible people don't enjoy prolonged stay , EAD and other benefits associated with pending AOS status).

Finally, in a very rare instances where FBI check for any reason is not cleared in 6 months USCIS is now told to make a decision and approve a petition when no adverse factors other than pending name check exist, with the reservation that if anything negative later turns up the benefit can be immediately revoked and individual apprehended.

Unlike N-400 case where a lengthy denationalization process must be undertaken if error made, LPR can be revoked relatively easy, therefore it is still mandatory for USCIS to wait for name check results in N-400 cases as opposed to AOS cases.

What this means for current AOS applicants?

First, you need not wait years to file a WOM. If your case pending past the deadline chances are that it is pending simply because the assigned IO is not working on your file. May be they process a hundred files a day but dropped yours behind the desk and never bother to look over, all the while they tell you with an air of importance that some serious work is being done in your case and you must wait.

Or it could be that your case is being delayed for no good reasons at all (somebody, may be a new hired officer , shipped your file to a different department within USCIS with a "gut feeling suspicion" that you are a ineligible for a benefit, and since you are neither and no data exists to support the "suspicion" nobody is willing to decide your case.

WOM will be of great help to you is above the case because the Court will ask USCIS to justify the reason why your case is still pending (in case if there is any legitimate reason, an increasing level of authority within USCIS must authorize delays in 6 months increments and it can only be authorized if there are valid grounds and this is the only valid reason government can present to court to refuse making a decision on your case.

In most of the cases it will not even reach a Court. You or your attorney can call US Attorney for the district where your petition will be filed and give the said Attorney a week to look into your case and make a decision or you tell them you will file WOM.

A week later if you get no response you do the actual filing. I will share here instructions on how to go about it.

Once filed Government will have 60 days to either make a decision or justify why it should be allowed not to decide your case yet. It must be legitimate , VALID reason, not just "We will work on it whenever".

In some cases Government Attorney will file affidavit to dismiss your WOM petition (need more time, to do specific tasks and etc).

You have to carefully read the government's request to see if the reason they provide is valid.

Remember: A complaint is subject to dismissal under Rule 12(b)(6) only

if“it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.”Gorski v. New Hampshire Dep’t of Corrections, 290 F.3d 466, 473

(1st Cir. 2002) (quoting Hishon v. King & Spaulding, 467 U.S. 69,

73 (1984)). The allegations in the complaint should be accepted

as true, and all reasonable inferences must be drawn in favor of

the plaintiff. Moss v. Camp Pemigewassett, Inc., 312 F.3d 503,

506 (1st Cir. 2002). ( see http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gertner/pdf/tangmtd.pdf )

The plaintiffs in Tang v Chertoff named 3 statutory bases for

jurisdiction:

The Mandamus statute (28 U.S.C. § 1361),

the Declaratory Judgment Act (28 U.S.C. § 2201 et seq.),

and the federal question statute (28 U.S.C. § 1331)

in combination with the Administrative Procedures Act (“APA”).

You should read carefully and do as much research as you can before filing or submitting anything to court. If you can afford it you would be better of to hire an attorney, but be very careful and thorough picking one if you end up hiring one.

Defendants in above case pointed to INA § 242 (8 U.S.C. §

1252(a)(2)), "which bars judicial review of certain actions on

which the Attorney General is given discretion under the INA."

You can counter that "while the final decision as to

adjustment of status is within the Attorney General’s discretion,

aspects of the process, such as the timing of these decisions,

are not".

Tang further argued that the Administrative Procedures Act

(specifically 5 U.S.C. § 555(b)) imposes a non-discretionary duty

to adjudicate applications in a reasonable time, and that review

of this duty is not barred by the INA’s jurisdiction-stripping

provision." ( http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gertner/pdf/tangmtd.pdf )

What follows is the thorough analysis of relevant cases and jurisdictions of Courts vs AG in making a decision on a benefit granted on discretionary basis.

If you read the part VII. WHETHER THE DELAY IN THIS CASE IS UNREASONABLE, it looks like Judges decision may have influenced the 2008 memo (particularly about plaintiffs already living and working in US, the statutory provisions of law allowing for revocation of LPR and initiation of removal if necessary as a result of BG check results under U.S.C. §§ 1227(a)(1)(A) & 1256(a)., as well as "scarcity of resources" defense not being acceptable when coming from defendants as opposed to plaintiffs , all this that you can read in the ruling of Judge Gertner may have influenced the 2008 USCIS memo which effectively eliminated all FBI related backlogs.

I have not read all pages of the decision yet but will later (I just printed it out in its' entirety).

Another case referring to Tang v Chertoff (also involving the pending AOS case and reference to Tang v Chertoff) can be fond here: http://www.jdsupra.com/post/documentViewer.aspx?fid=21052340-1a3d-4973-98e5-ae0993ec5bd2

It's titled Mohamoud Abdi v Chertoff, Civil Action No. 08-11302-JLT

I will search more cases, particularly I will try to find newer AOS related WOM cases and see how these played out in post 2008 USCIS memo environment.

Hope many of you will find information posted here helpful and even useful if you plan to bring or just learned about possibility of bringing WOM for your pending AOS cases.

If enough of us bring and successfully argue such cases then chances are great that with more court rulings and precedents set the Government will address the issues that cause undue delays (comparing the costs of going to court and loosing the cases vs better training some of the lagging employees and making them feel more responsibility towards discharging their duties codified in law).

To be continued.

Edited August 3, 2012 by asdfg

[Kathryn41 3,205]

One post containing personal attacks has been removed. Any further such posts and the poster will be thread banned from participation in this thread.

Edited August 3, 2012 by Kathryn41

[asdfg 18]

Q. How to locate a District Court that has Jurisdiction where I can file Writ of Mandamus ?

Answer:

1. Go to http://www.uscourts.gov/Home.aspx

2. Under "Court Locator" enter your City, State and Zipcode.

List of relevant courts will appear.

If more than one district court appears on a list you may want to click on details, call and ask the court clerk if that is the proper jurisdiction to file your WOM.

Good luck.

[asdfg 18]

"Lawsuit steps" are useful on this thread (scroll down to read: http://en.wikibooks.org/wiki/FBI_Name_Check#Case_with_good_opposition_to_MTD_or_good_response_to_defendants.E2.80.99_answer.2C_but_then_was_jointly_dismissed_before_judge_deciding_on_MTD)

Some links are outdated, also current delays in USCIS case processing of AOS applications are rarely if ever due to FBI name checks (no longer the backlogs like it was prior to Feb 2008 USCIS memo and directive, see interoffice memorandum by Michael Aytes dated Feb 4 2008 here:

http://www.uscis.gov/files/pressrelease/DOC017.PDF

"In a February 4, 2008 memorandum, Michael Aytes, Director of Domestic Operations at USCIS, announced a change in policy regarding FBI Name Checks in relation to the adjustment of status (green card) applicants. Under the new policy, if a Name Check for an adjustment of status applicant has been pending for over 180 days, USCIS may approve the adjustment of status application. The FBI Name check will still be required to be completed in such cases and, if upon completion of the check, serious adverse information is discovered, USCIS may revoke the green card of the individual in question and may deport that individual."

See: http://en.wikipedia.org/wiki/FBI_Name_Check

I am now looking for post 02/2008 WOM filings in AOS cases and how the Aytes memo affected the timing of new AOS WOM filings and the outcomes.

[asdfg 18]

Green Card Approved in 3 Days Following Writ of Mandamus Filing

(07/13/2009)

At the most recent National AILA Conference in Las Vegas, it was noted that a large number of cases have been held in the USCIS system for unreasonable lengths of time. While the FBI and the USCIS have worked together to speed up the background checks often causing the delays in adjudication, there are some cases that need an extra push. For those immigrants who are experiencing undue delay or inaction for adjustment of status and citizenship applications, a Writ of Mandamus (WOM) could be the defining factor in your case. YXZ (XYZ - I have deleted the initials and name of the law firm and any further references to law firm are edited and changed to XYZ).

For example, Dr. ****** contacted XYZ inquiring on our expertise for help in resolving an excessive USCIS delay in processing his application for adjustment of status to permanent resident.

December 2008: Co-Managing Attorney ********* met with Dr. ***** for a free evaluation. Since WOMs are very fact specific, Attorney ***** went through the facts of Dr. *******’s case very carefully and suggested that he had a very good cause for a WOM.

December 2008: Dr. ******* retained our services. His case was immediately assigned to Attorney ******** ******.

Dec. 2008 – May 2009

Over the course of the next 5 months, Attorney diligently used her resources to assist Dr. ******** in exhausting all of his administrative remedies to build up a strong case for his WOM. This included the following:

1. Exhausting all Administrative Remedies: Contacting USCIS, FBI, AILA, making InfoPass appointments for Dr.******* and contacting local US representatives and the US President to enlist their help.

2. Drafting a Court Brief: This includes research on case law for Dr. ******* regarding favorable courts for his specific case.

3. Sending a Demand Letter to necessary defendants allowing for a 30 day response time: It is vital at this point to list the proper defendants to the case, which include but are not limited to the US Attorney General, the FBI, the Director of the USCIS, the Secretary of the Department of State, etc…

May 1, 2009:

Attorney sent out the demand letter with a copy of her drafted court brief to all defendants;

June 1, 2009: Since no response was received, Attorney ******** filed a WOM for Dr. ******** in the relevant federal district court sympathetic to his case.

June 4, 2009

Only 3 days after filing the WOM, Attorney ********** received a phone call from both the US Department of State and the local USCIS field office informing her that Dr. ******** and his wife’s I-485 was approved and that the printing of their green cards had been requested.

June 24, 2009

Dr. ******* and his wife received their green cards in the mail.

This outcome was very fortunate as it has now enabled Dr. ******* to accept job offers that had been pending due to the delay in his green card adjudication. Our offices were extremely happy to have been able to help Dr. ******* and his wife achieve a positive result with speed. In her experience, Attorney ********** has noticed that often times the matter of delay is resolved before a full trial is entered into. As is evidenced with Dr. *******'s case, there are times where an excessive delay has left you little choice but to push the USCIS with a WOM. We encourage those of you who may be facing similar situations and who are interested in exploring possible solutions to contact us for a free evaluation.

[Mike B. 231]

One post containing personal attacks has been removed. Any further such posts and the poster will be thread banned from participation in this thread.

Give me a break. Someone says that as a government employee they would deliberately work slow in an effort to waste taxpayer resources, I say I'm glad they aren't doing that anymore, and my post is the one that gets deleted?

I'm still glad that that guy isn't deliberately wasting taxpayer money and working slow out of spite. I am against wasteful government. If you want to ban me for saying that, go ahead.