Though Congress has seen fit to take away jurisdiction (for just about everything) from the courts, they still have the power to compel federal agencies to act.
A petition for a writ of mandamus, is the vehicle through which a person who desperately needs the USCIS or other federal agency to act, and who has no other avenue of making them act, asks the federal district court to compel the action of the government agency.
For example, if a US citizen and their spouse attended the adjustment of status interview but no decision was made on the case at that time. And despite repeated attempts to have the matter wrapped up through inquiries to the USCIS nothing happens.
Personally I’ve heard of cases where the USCIS (who would have been the INS at the time) didn’t make a decision for years and only after they were forced to.
A petition for mandamus is the way to force them to make a decision and is a safe and powerful mechanism where there are no underlying grounds to deny a petition.
However, the only thing a mandamus petition does is compel the USCIS to make a decision and the courts have no power to decide what decision should be made and no power to review the decision after it has been made to determine if a fair decision was rendered.
And that’s the weakness of the petition. The USCIS can make any decision it wants for any reason and the court loses power over the case at that point. Perhaps the USCIS decision can be appealed but in many instances it cannot. So if there are grounds to believe that the petition may fairly be denied this approach may be risky.
Furthermore, the fact that the court loses power over the case when a decision has been made means the decision making process has a great potential to be abused. In most instances, from my experience, it will not be abused and the officials will follow the rules. But I have seen instances where the rules were not followed (or at least standard procedures were not followed) because that would have led to a decision that (in my opinion) the USCIS did not desire.
When thinking about using this powerful tool it is very important to take an honest look at your case and weigh the costs vs. the risks before proceeding.
can you do that if you been denied
Comment by jamie bauer — October 28, 2006 @ 3:04 am
Hi. Unfortunately once a decision has been rendered a petition for a writ of mandamus isn’t useful. You are left with appealing the denial or refiling.
Justin
Comment by justin — October 28, 2006 @ 10:27 am