IndiaPost.com - Mandamus actions: An eyewitness account

(Continued from last week's article)

Unlike actions related to naturalization applications, pursuant to INA § 336(b), a mandamus complaint only vests the federal courts with the jurisdiction required to compel the defendant agency to act. If successful, an order from a federal judge will require only that the FBI complete its name check, if the pendency of the security check is noted as the reason for delay, and that USCIS enter a final decision on the application within a specified schedule.

Typically, district court judges have given government parties 30 and/or 60 days to complete processing. Because the delay could be attributed to the FBI name check, it is crucial that the attorney name all necessary parties when drafting the complaint, including the client as plaintiff and, as defendants, Emilio T. Gonzalez, in his official capacity as Director of U.S. Citizenship and Immigration Services; Michael Chertoff, in his official capacity as Secretary of the U.S. Department of Homeland Security; Peter D. Keisler, in his official capacity as Acting Attorney General of the United States; and Robert S. Mueller III, in his official capacity as Director of the Federal Bureau of Investigation.

In the cases with which I have been involved, where the applications remain pending at the New York City District Office, we have also named Andrea Quarantillo, in her official capacity as Director of the New York City District of U.S. Citizenship and Immigration Services, as a defendant. This last defendant, however, will vary depending upon the location of the client's immigration file.

The suit itself must be filed either where the Plaintiff resides or where the government conducts its business, such as Washington, D.C. Some attorneys have also suggested filing in the federal district where the application was originally filed as a strategy of forum selection, where the attorney is hoping to avoid a district with unfavorable case law or uncooperative U.S. Attorneys.

With regard to the practicalities of initiating the action, the complaint should begin with a brief introduction stating the nature of the action, then provide a comprehensive explanation of the basis for jurisdiction that cites not only the above-cited statutes, but also the INA and implementing regulations, the basis for proper venue under 28 U.S.C. §1391 and a list of names of all parties with brief descriptions of why they are properly included in the lawsuit.

Next, the complaint should state all factual allegations, showing that the applicant has complied with all requirements necessary to adjust his or her status, including providing biometrics and appearing for interviews when called in to do so by USCIS. The factual allegations should also include a timeline of whatever steps the applicant or his or her representative have taken to instigate USCIS to take action, as proof of exhaustion of administrative remedies. Finally, the factual allegations should include whatever other compelling circumstances warrant granting an order to compel USCIS and FBI to conclude their adjudication of the application.

The complaint then makes its "Prayer for Relief," which more succinctly restates the duty owed to the applicant by the defendants and how this duty has been breached by the agency's unreasonable delay. And do not forget to include a request for costs and fees under the Equal Access to Justice Act. The original complaint, with a filing fee of $350, must be filed with the civil cover sheet of the specific court where the action is to be filed.

When filing the complaint, the attorney should contact the clerk of the court beforehand to learn how many copies must be filed with the court, and bring completed summonses for each defendant, which must bear the court's stamp when service of the complaint is made upon the government parties. Each defendant must be named on a separate summons. Also, I prefer to immediately hand deliver service to the U.S. Attorney's Office, as this will begin the clock against the government, giving the U.S. Attorney 60 days within which to reply.

When the complaint is filed, the clerk will assign two judges two the matter and provide copies of the rules of each. Of course, the complaint must comport with the Federal Rules of Civil Procedure, as well as the Local Rules of the court, however, READ the individual judges' rules immediately, as there is considerable variance between the procedures each judge prefers to impose upon those who pursue matters before him or her.

Also, it is essential that the parties familiarize themselves with the specific court's rules governing its Electronic Case Filing system (ECF) procedures. The courts have gone paperless, and the ECF systems are quite daunting when first faced with them. Luckily, the ECF helpdesks are typically manned by extremely friendly staff, whose numbers are available on the court's web sites.

Basically, all papers submitted to the courts after the initiating complaint, including the attorney's Notice of Appearance, must be filed electronically. Therefore, it is a good idea to register for the courts ECF system before filing, and pay heed to the warnings and suggestions made in the internet trainings that the courts make available.

In conclusion, Secretary Chertoff has expressed his hopes that the new USCIS/FBI initiative will help clear the backlog and allow for quicker adjudications of the species of applications that have until now fallen victim to name check delays.

We have all learned to take such announcements with an entire lick of salt. Regardless, the mandamus has proven an extremely useful tool in instigating the government to act and concluding the unreasonable delays it too frequently imposes upon its customers.