To windy or else, how does the writ of mandamus work?
- Thread starter ernorman
- Start date
Sorry for the delay. I recommend you to wait at least 6 months from the ND to file. Some courts are very immigration-friendly: if you live in SF, Boston (1st Circuit), New York (2nd Circuit), chances are very good.
There are various writeups on this. Basically, following the instructions and probably just copy some templates.
In petition, state the following facts:
5. Petitioner submitted AOS applications to become permanent residents of the United States with Nebraska Service Center of USCIS on April 13, 2003 with the receipt notice date of April 22, 2003. USCIS acknowledgement documents are attached hereto as Exhibit A.
6. Petitioner is eligible to be granted permanent resident status and is admissible to the United States for permanent residence.
7. Petitioner’s asylum-based AOS application was filed under INA § 209(b) after having been physically present in the United States for a period of one year after the date the petitioner was granted asylum status.
8. Following the submission of AOS application, Petitioner was requested to provide and actually provided fingerprints for security checks on MMDDYYY and MMDDYYYY as well as biometrics on MMDDYYY.
9. In its receipt notice dated April 22, 2003, USCIS stated that “it usually takes between 560 to 590 days from the date of this receipt to process this type of case.”
10. However, USCIS acknowledged later that it has over 160,000 cases in backlog as of December 31, 2004, due to the restriction, commonly referred as yearly cap, imposed by section 209 of the Immigration and Nationality Act that only 10,000 asylees could adjust status to Lawful Permanent Resident (LPR) per year.
11. On March 4, 2002, the American Immigration Law Foundation and Dorsey & Whitney LLP filed class action lawsuit (Ngwanyia v. Gonzales, No. 02-502 (RHK) D. Minn) against USCIS, challenging the USCIS (then INS) “failure to allot, on a yearly basis, all 10,000 refugee admissions designated by Immigration and Nationality Act (INA) §209(b), 8 U.S.C. §1 159(b), and by Presidential Decree specifically for individuals who have been granted asylum in the United States and who have applied to adjust their status to that of permanent resident.”
12. In May 2005, a settlement was proposed and finally reached for the above class action. Under this settlement agreement, USCIS agreed to process additional 31,000 asylee adjustments during the fiscal year 2005, 2006 and 2007.
13. Furthermore, on May 11, 2005, the REAL ID Act was signed into law. Section 101(g) of the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, amends section 209 of the Immigration and Nationality Act to eliminate the yearly cap on asylee adjustments. Therefore, there has been no longer a limit to the number of asylees who can become lawful permanent residents in any year since May 2005.
There are various writeups on this. Basically, following the instructions and probably just copy some templates.
In petition, state the following facts:
5. Petitioner submitted AOS applications to become permanent residents of the United States with Nebraska Service Center of USCIS on April 13, 2003 with the receipt notice date of April 22, 2003. USCIS acknowledgement documents are attached hereto as Exhibit A.
6. Petitioner is eligible to be granted permanent resident status and is admissible to the United States for permanent residence.
7. Petitioner’s asylum-based AOS application was filed under INA § 209(b) after having been physically present in the United States for a period of one year after the date the petitioner was granted asylum status.
8. Following the submission of AOS application, Petitioner was requested to provide and actually provided fingerprints for security checks on MMDDYYY and MMDDYYYY as well as biometrics on MMDDYYY.
9. In its receipt notice dated April 22, 2003, USCIS stated that “it usually takes between 560 to 590 days from the date of this receipt to process this type of case.”
10. However, USCIS acknowledged later that it has over 160,000 cases in backlog as of December 31, 2004, due to the restriction, commonly referred as yearly cap, imposed by section 209 of the Immigration and Nationality Act that only 10,000 asylees could adjust status to Lawful Permanent Resident (LPR) per year.
11. On March 4, 2002, the American Immigration Law Foundation and Dorsey & Whitney LLP filed class action lawsuit (Ngwanyia v. Gonzales, No. 02-502 (RHK) D. Minn) against USCIS, challenging the USCIS (then INS) “failure to allot, on a yearly basis, all 10,000 refugee admissions designated by Immigration and Nationality Act (INA) §209(b), 8 U.S.C. §1 159(b), and by Presidential Decree specifically for individuals who have been granted asylum in the United States and who have applied to adjust their status to that of permanent resident.”
12. In May 2005, a settlement was proposed and finally reached for the above class action. Under this settlement agreement, USCIS agreed to process additional 31,000 asylee adjustments during the fiscal year 2005, 2006 and 2007.
13. Furthermore, on May 11, 2005, the REAL ID Act was signed into law. Section 101(g) of the REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, amends section 209 of the Immigration and Nationality Act to eliminate the yearly cap on asylee adjustments. Therefore, there has been no longer a limit to the number of asylees who can become lawful permanent residents in any year since May 2005.
Mention "reasonableness" of time of processing:
26. Section 202 (8 U.S.C. § 1571) of the Title II of the American Competitiveness in Twenty-first Century Act of 2000 (AC21) clearly lays down the parameters of reasonableness in immigration adjudication, stating: “…It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”
27. Defendants are also required by 5 U.S.C. § 551 “within a reasonable time … to conclude a matter presented… .”
28. Other District Courts have concluded in similar cases that petitioners have a clear right to have his or her application for lawful permanent residency status adjudicated within a reasonable period of time. (Yu v. Brown, 36F. Supp. 2d 922, 925 (D.N.M. 1999); Agbemaple v. INS, No. 97 C 8457, 1988 WL 292441 (N.D. Ill. May 18, 1988) and Jefrey v. INS, 710 F. Supp. 486 (S.D.N.Y. 1989)). For instance, in Yu, where petitioner sought a writ of mandamus to force INS to act on her application for lawful permanent residence two and one half years after she applied, the court concluded that Yu’s petition properly stated a claim for mandamus. In Elkhatib v. Bulger, No. 04-22407-CIV-SEITZ/MCALILEY (S.D.F.2004) court found that Respondents have a non-discretionary duty to process Petitioner’s application within a reasonable period of time. Also in Jefrey, the court concluded that just because a delay is “not unusual” does not make it reasonable.
26. Section 202 (8 U.S.C. § 1571) of the Title II of the American Competitiveness in Twenty-first Century Act of 2000 (AC21) clearly lays down the parameters of reasonableness in immigration adjudication, stating: “…It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”
27. Defendants are also required by 5 U.S.C. § 551 “within a reasonable time … to conclude a matter presented… .”
28. Other District Courts have concluded in similar cases that petitioners have a clear right to have his or her application for lawful permanent residency status adjudicated within a reasonable period of time. (Yu v. Brown, 36F. Supp. 2d 922, 925 (D.N.M. 1999); Agbemaple v. INS, No. 97 C 8457, 1988 WL 292441 (N.D. Ill. May 18, 1988) and Jefrey v. INS, 710 F. Supp. 486 (S.D.N.Y. 1989)). For instance, in Yu, where petitioner sought a writ of mandamus to force INS to act on her application for lawful permanent residence two and one half years after she applied, the court concluded that Yu’s petition properly stated a claim for mandamus. In Elkhatib v. Bulger, No. 04-22407-CIV-SEITZ/MCALILEY (S.D.F.2004) court found that Respondents have a non-discretionary duty to process Petitioner’s application within a reasonable period of time. Also in Jefrey, the court concluded that just because a delay is “not unusual” does not make it reasonable.
Put down your inquiries: (Note: NEVER, NEVER mention that you can't go back to COP!!!!!!!!!!!!!)
30. Petitioner is waiting and will continue to wait for a significant amount of time for a decision on his AOS application. His status in the United States has been and will continue to be uncertain. Petitioner could not plan ahead because he has not known and does not know when he becomes a permanent resident.
31. Petitioner has lost a significant work time while pursuing his adjustment of status application, making inquiries with USCIS, meeting with lawyers, applying for yearly refugee travel documents, reporting for fingerprinting, and otherwise pursuing his delayed permanent residency.
32. Petitioner has to obtain refugee travel document with only one-year validity while his AOS application is pending, versus to obtain re-entry permit with two-year validity which only permanent resident is entitled to. In addition, it takes USCIS over six month to process refugee travel document and USCIS does not allow alien to have two refugee travel documents at the same time, which makes refugee travel document has de facto only six-month validity. Since Petitioner’s job nature requires him to travel extensively, Petitioner had and will continue to have severe restrictions when seeking employment.
33. The frequent application of refugee travel document also results in significant out-of-pocket expenses (travel document application cost is $165/application and Petitioner has already applied for three of them), including attorneys’ fees, inconvenience, and loss of wages.
34. Some universities and colleges consider a person without a permanent residency to be an out-of-state resident and hence charge him or her out-of-state tuition. Due to that Petitioner could not proceed with his educational plans.
35. Due to delays in adjudication of Petitioner’s permanent residency application, Petitioner’s naturalization (to become a U.S. Citizen) has been delayed. Therefore Respondents’ unreasonable delay in adjudicating AOS application deprived Petitioner for longer time of citizenship benefits like a right to vote and fully participate in our democracy; receive a United States passport; travel freely into and out of the United States; hold a job that is restricted to United States citizens; run for public office. Also Petitioner has been and will continue to be unable to petition for his family members to immigrate to the United States as immediate relatives.
36. Petitioner’s rights to due process of law and equal protection under the Fifth Amendment to the United States Constitution have been and are being violated and will continue to be violated by Defendants’ failures as described herein.
30. Petitioner is waiting and will continue to wait for a significant amount of time for a decision on his AOS application. His status in the United States has been and will continue to be uncertain. Petitioner could not plan ahead because he has not known and does not know when he becomes a permanent resident.
31. Petitioner has lost a significant work time while pursuing his adjustment of status application, making inquiries with USCIS, meeting with lawyers, applying for yearly refugee travel documents, reporting for fingerprinting, and otherwise pursuing his delayed permanent residency.
32. Petitioner has to obtain refugee travel document with only one-year validity while his AOS application is pending, versus to obtain re-entry permit with two-year validity which only permanent resident is entitled to. In addition, it takes USCIS over six month to process refugee travel document and USCIS does not allow alien to have two refugee travel documents at the same time, which makes refugee travel document has de facto only six-month validity. Since Petitioner’s job nature requires him to travel extensively, Petitioner had and will continue to have severe restrictions when seeking employment.
33. The frequent application of refugee travel document also results in significant out-of-pocket expenses (travel document application cost is $165/application and Petitioner has already applied for three of them), including attorneys’ fees, inconvenience, and loss of wages.
34. Some universities and colleges consider a person without a permanent residency to be an out-of-state resident and hence charge him or her out-of-state tuition. Due to that Petitioner could not proceed with his educational plans.
35. Due to delays in adjudication of Petitioner’s permanent residency application, Petitioner’s naturalization (to become a U.S. Citizen) has been delayed. Therefore Respondents’ unreasonable delay in adjudicating AOS application deprived Petitioner for longer time of citizenship benefits like a right to vote and fully participate in our democracy; receive a United States passport; travel freely into and out of the United States; hold a job that is restricted to United States citizens; run for public office. Also Petitioner has been and will continue to be unable to petition for his family members to immigrate to the United States as immediate relatives.
36. Petitioner’s rights to due process of law and equal protection under the Fifth Amendment to the United States Constitution have been and are being violated and will continue to be violated by Defendants’ failures as described herein.
Finally, that is what you want:
Count I.
Mandamus Action
28 U.S.C. § 1651
41. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
42. Defendants are charged with the mandatory responsibility of administering and implementing the Immigration and Nationality Act.
43. Defendants bear sole responsibility for timely adjudication of AOS application and for orderly attendant procedures.
44. Defendants have failed to discharge their mandated duties.
45. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
46. Petitioner has exhausted all possible administrative remedies and there exists no other adequate remedy.
47. Strong humanitarian factors favor granting of Mandamus relief.
Count II.
Administrative Procedures Act
5 U.S.C. § 555 and 5 U.S.C. § 702 et seq.
48. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
49. By failing to render timely decision on Petitioner’s application, Defendants have violated the Administrative Procedures Act and this constitutes agency action that is arbitrary and capricious, and not in accordance with law. 5 U.S.C. § 701 et seq., 702, 706 (“agency action unlawfully withheld or unreasonably delayed” under § 706(1)) and 5 U.S.C. § 555.
50. Defendants have failed to discharge their mandated official duties.
51. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count III.
Declaratory Judgment Act
28 U.S.C. § 2201
52. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
53. Petitioner contend that Defendants’ actions and decisions relating to delays in AOS adjudication and attendant procedures are unconstitutional, violate the INA, and are arbitrary and capricious and seek a declaration to that effect under 28 U.S.C. § 2201.
54. Defendants have failed to discharge their mandated official duties.
55. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count IV.
Equal Access to Justice Act
5 U.S.C. § 504 and 28 U.S.C. § 2412
56. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
57. If prevails, Petitioner will seek attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412.
Count I.
Mandamus Action
28 U.S.C. § 1651
41. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
42. Defendants are charged with the mandatory responsibility of administering and implementing the Immigration and Nationality Act.
43. Defendants bear sole responsibility for timely adjudication of AOS application and for orderly attendant procedures.
44. Defendants have failed to discharge their mandated duties.
45. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
46. Petitioner has exhausted all possible administrative remedies and there exists no other adequate remedy.
47. Strong humanitarian factors favor granting of Mandamus relief.
Count II.
Administrative Procedures Act
5 U.S.C. § 555 and 5 U.S.C. § 702 et seq.
48. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
49. By failing to render timely decision on Petitioner’s application, Defendants have violated the Administrative Procedures Act and this constitutes agency action that is arbitrary and capricious, and not in accordance with law. 5 U.S.C. § 701 et seq., 702, 706 (“agency action unlawfully withheld or unreasonably delayed” under § 706(1)) and 5 U.S.C. § 555.
50. Defendants have failed to discharge their mandated official duties.
51. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count III.
Declaratory Judgment Act
28 U.S.C. § 2201
52. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
53. Petitioner contend that Defendants’ actions and decisions relating to delays in AOS adjudication and attendant procedures are unconstitutional, violate the INA, and are arbitrary and capricious and seek a declaration to that effect under 28 U.S.C. § 2201.
54. Defendants have failed to discharge their mandated official duties.
55. As a result, Petitioner has suffered and continues to suffer irreparable harm and damages entitling him to declaratory, injunctive and other relief.
Count IV.
Equal Access to Justice Act
5 U.S.C. § 504 and 28 U.S.C. § 2412
56. Petitioner incorporates all allegations made hereinabove that are pertinent to this Court.
57. If prevails, Petitioner will seek attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412.
Good luck.
You do not have to have an attorney. File it Pro Se.
Here is what happened in my cousin case (his ND is 04/03): Manhattan district attorney called for an extension of 90 days (they have 60 days). Around day 30, DA called again saying that they will adjudicate within 7 days. "Seeing is believing, will not dismiss the case unless getting the results." Waited. After 2 days, email arrived and welcome notice followed in 3 days. Day 35, case was dismissed. End of story.
Alternatively, you can send them "demand letter" or "intent to sue" stuff, according to my attorney, it never worked for USCIS. I guess they just start to take serious when they get served papers.
Let me know your process.
You do not have to have an attorney. File it Pro Se.
Here is what happened in my cousin case (his ND is 04/03): Manhattan district attorney called for an extension of 90 days (they have 60 days). Around day 30, DA called again saying that they will adjudicate within 7 days. "Seeing is believing, will not dismiss the case unless getting the results." Waited. After 2 days, email arrived and welcome notice followed in 3 days. Day 35, case was dismissed. End of story.
Alternatively, you can send them "demand letter" or "intent to sue" stuff, according to my attorney, it never worked for USCIS. I guess they just start to take serious when they get served papers.
Let me know your process.
Lazerthegreat
Registered Users (C)
Why you wrote that? Can you plz explain?
(Note: NEVER, NEVER mention that you can't go back to COP!!!!!!!!!!!!!)
(Note: NEVER, NEVER mention that you can't go back to COP!!!!!!!!!!!!!)
Sorry for the typo: It is "put down your injuries".
A lot of people with pending AOS tend to tell the Court that because I-485 is pending, I can't go back because it will automatically invalidate the application. But that doesn't apply to asylees. Remember, they have every right to revoke your asylum status and make I-485 deniable. It is stated in INA "asylum status may be terminated....."
Lazer, you are still waiting????? If I were you, I will make an appointment with immigration lawyer to talk about the chances of winning writ of mandamus. You can file it yourself. It is way too long.
A lot of people with pending AOS tend to tell the Court that because I-485 is pending, I can't go back because it will automatically invalidate the application. But that doesn't apply to asylees. Remember, they have every right to revoke your asylum status and make I-485 deniable. It is stated in INA "asylum status may be terminated....."
Lazer, you are still waiting????? If I were you, I will make an appointment with immigration lawyer to talk about the chances of winning writ of mandamus. You can file it yourself. It is way too long.
Lazerthegreat
Registered Users (C)
windywd said:
But can't you tell the court that you face difficulties doing job related travel (not to home country).
You are saying filing it youself? Is this some standard format that you have given in this thread? If it is, can you plz point out the source.
I know a lawyer is also going to file a standard format. Does it need to be filed in Lincoln district court or my local court? any ideas
thanks,
Lazer,
This is the link
http://boards.immigrationportal.com...81&page=1&pp=15
It is huge. Take time to read it. It contains every step you need to take to sue them.
I still recommend you consult your attorney to see whether you should file and where you can file it. You can either file it in Lincoln, NE or the place you live. Immigration litigation attorney will tell you how good the chance is. I hope you are not living in Washington, D.C. I heard too many stories about that damn federal district court is tough.....
Basically go to the district court and ask to speak someone for suing U.S. government Pro Se. You need to prepare your case, plus cover page (for filing purpose). After it is done, go to court and file it (pay the fee, of course). You will receive via mail the court copy (it has court's stamp) shortly. As soon as you receive it, serve papers to the defendants. Mail the copy to all defendants via certified mail with return receipt. They ask you mail to some address of general counsel if you sue for immigration purpose, do not forget to sent it to your district U.S. attorney's office. Once you have your receipt for U.S. attorney, file "acknowledgement of serving defendants" to the court, basically telling them all defendants got informed by your lawsuit. You have to wait 60 days. If you are curious within the 60 days, call district attorney's office (civil division) and ask to speak the one assigned to handle your case. Most likely, he/she is going to tell you: I am trying to ask them to speed up your security check. That is usually where the problem is. Make sure you don't have any loose ends, though.
Because in some cases, they got many information from CIA/FBI, and needs to analyze it. If so, district attorney is going to tell you: We haven't obtained all the info needed to adjudicate your case... But for most of them, it is just buried in the name check process, and suing them is the only quick way to resolve it.
In the case we filed last year, essentially we told the court that since May 2005, with cap eliminated and lawsuit settled, they still did not behave and approve the case in the reasonable amount of time. We cited a court precedent that "only because the delay is not unusual does not make it reasonable." It is decided by another court that just because they f*cked up with everybody, does not make them right. You have every right to ask judicial review.
Best place to sue them: California, Boston, New York, Florida
Worst place to sue them: D.C., Texas, Seattle, Louisiana
Good luck.
This is the link
http://boards.immigrationportal.com...81&page=1&pp=15
It is huge. Take time to read it. It contains every step you need to take to sue them.
I still recommend you consult your attorney to see whether you should file and where you can file it. You can either file it in Lincoln, NE or the place you live. Immigration litigation attorney will tell you how good the chance is. I hope you are not living in Washington, D.C. I heard too many stories about that damn federal district court is tough.....
Basically go to the district court and ask to speak someone for suing U.S. government Pro Se. You need to prepare your case, plus cover page (for filing purpose). After it is done, go to court and file it (pay the fee, of course). You will receive via mail the court copy (it has court's stamp) shortly. As soon as you receive it, serve papers to the defendants. Mail the copy to all defendants via certified mail with return receipt. They ask you mail to some address of general counsel if you sue for immigration purpose, do not forget to sent it to your district U.S. attorney's office. Once you have your receipt for U.S. attorney, file "acknowledgement of serving defendants" to the court, basically telling them all defendants got informed by your lawsuit. You have to wait 60 days. If you are curious within the 60 days, call district attorney's office (civil division) and ask to speak the one assigned to handle your case. Most likely, he/she is going to tell you: I am trying to ask them to speed up your security check. That is usually where the problem is. Make sure you don't have any loose ends, though.
Because in some cases, they got many information from CIA/FBI, and needs to analyze it. If so, district attorney is going to tell you: We haven't obtained all the info needed to adjudicate your case... But for most of them, it is just buried in the name check process, and suing them is the only quick way to resolve it.In the case we filed last year, essentially we told the court that since May 2005, with cap eliminated and lawsuit settled, they still did not behave and approve the case in the reasonable amount of time. We cited a court precedent that "only because the delay is not unusual does not make it reasonable." It is decided by another court that just because they f*cked up with everybody, does not make them right. You have every right to ask judicial review.
Best place to sue them: California, Boston, New York, Florida
Worst place to sue them: D.C., Texas, Seattle, Louisiana
Good luck.
Lazerthegreat
Registered Users (C)
windywd! thanks for detailed info
by the way: your link above doesn't work. Can you make sure it is correct.
thanks
by the way: your link above doesn't work. Can you make sure it is correct.
thanks
First of all, thanks Windy!
Lazer, what you can do is to search "mandamus" in all forums. And you will find that threat, which probably is the largest... People are updating it to share their experience of suing USCIS for citizenship and AOS.
I am building my case as of now. In case of ANY delay, I will not hesitate to bring them to justice.
Lazer, what you can do is to search "mandamus" in all forums. And you will find that threat, which probably is the largest... People are updating it to share their experience of suing USCIS for citizenship and AOS.
I am building my case as of now. In case of ANY delay, I will not hesitate to bring them to justice.
ernorman said:
Try not to discourage you, but will you just spend 350 bucks and file. From what I heard, they really want to see the court stamp before acting.
If you feel so compelled to give them some warning, mail your package to USCIS Office of General Counsel in Washington, D.C. Be sure to include your entire package, including exhibits; specific a deadline; use a sentence like "I am committed to litigating" or "It is my intent to launch litigation against USCIS without further request or demand..." This way, it tells them that you are really prepared, and all you need to do is to go to court and file if they don't comply.
windywd said:Try not to discourage you, but will you just spend 350 bucks and file. From what I heard, they really want to see the court stamp before acting.
If you feel so compelled to give them some warning, mail your package to USCIS Office of General Counsel in Washington, D.C. Be sure to include your entire package, including exhibits; specific a deadline; use a sentence like "I am committed to litigating" or "It is my intent to launch litigation against USCIS without further request or demand..." This way, it tells them that you are really prepared, and all you need to do is to go to court and file if they don't comply.
Noted. Will do this weekend. Thanks so much.