Mandamus and 1447(b) Actions in Naturalization Proceedings
A “mandamus” action is a legal proceeding that can be used to compel a government agency to take a specific action. A plaintiff who files a mandamus action against a government agency must prove that the plaintiff has the clear right to the specific action requested, that the defendant (the agency) has a clear, nondiscretionary duty to perform the act requested, and that no other adequate remedy is available to the plaintiff other than to seek the court’s help in ordering the agency to act. A mandamus action cannot be used to compel a government agency to decide a case in a particular manner, but only to take action. Therefore, filing a mandamus action would not be appropriate for a plaintiff who wanted a government agency to make a different decision than one that it has already made. On the other hand, filing a mandamus action would be an appropriate course of action for a plaintiff who wanted a government agency to make an initial decision on his application when the agency had long delayed in doing so.
In naturalization proceedings, courts have previously ruled that the INA (the “Immigration and Nationality Act”) establishes a clear right to relief in delayed naturalization cases, after the interview. In such cases, a plaintiff may file a mandamus action asking the court to compel USCIS to adjudicate his application. Of course, USCIS may deny the plaintiff’s naturalization application, as its duty is to make a decision on the application but not necessarily to approve it.
After the interview, naturalization applicants who have not yet received a decision may file a § 1447(b) action against USCIS if USCIS has failed to make a decision within 120 days of the applicant’s “examination” (generally, this 120-day period starts after the interview, although some courts have interpreted this as also encompassing the time it takes to complete background checks after the interview). In 1447(b) actions, unlike mandamus actions, the court has the power to actually decide on the applicant’s application if it so chooses; otherwise, it can remand the application back to USCIS for a decision. If the applicant prevails, the applicant may be eligible for attorney’s fees in some cases.
Both mandamus and 1447(b) actions are filed in federal court.
If you are interested in discussing whether a mandamus or 1447(b) action is appropriate in your particular circumstances, contact Tanner Law Offices at (717) 731-8114 to schedule a consultation with one of our attorneys.