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What Happens When I File a Petition for a Writ of Mandamus?




You filed your immigration application. You paid the application fee which is a lot of money. You possibly paid an attorney a lot of money. You wait and wait and wait and wait and nothing. Finally, you decide to file a Petition for a Writ of Mandamus asking a court to order the Government to decide your application. So, what happens next?


Get Experienced Counsel

First, mandamus petitions begin litigation in federal court. Therefore, even if you filed your application with USICS on your own, you really should get an attorney who is experienced with federal court litigation to handle it for you. Even if you hired an immigration attorney to file your application, they may not have experience in federal court which has its own practices and rules.


Preparing the Petition and Serving It

Second, you file the petition in the appropriate federal court. The petition has to include certain things. The best petitions will outline the length of the delay, efforts to resolve the matter before coming to court, and how the delay has affected you. Once your file the petition, you must serve it on the defendants. These defendants can include both government officials in their official capacities and the agencies they lead. The rules for serving the Government defendants are included in the Federal Rules of Civil Procedure.


The Government Response

Third, once the petition is served, the Government has 60 days to respond. Don't panic if you don't hear anything right away. It will likely take time for the assigned Assistant United States Attorney handling the matter to reach out to agencies you are suing and figure out what is going on with your application. However, one way or another, you will hear something within 60 days. That response, however, can go one of two ways.


In most cases, the Government will realize it messed up, contact your attorney, and deal with your application quickly. It might take a few months to actually adjudicate your petition, but it won't be indefinite. Ultimately, your application will be decided.


In some cases, the Government will push back with a motion. For example, the Government may argue that the application is still within normal processing times or that if the processing is delayed, it is not unreasonable. If the Government files a motion, you can respond to that motion. If the parties do not resolve the dispute, the Court will decide the issue. An experienced attorney can, in some cases, reduce the chance that the Government will file a motion in the first place and effectively respond if the Government files that motion.


Conclusion

While this process appears relatively straightforward (and can be), there are also a number of places where things can go wrong and/or require an experienced attorney, e.g., this includes preparing the petition, serving it, and responding to Government pushback if it comes to that. An experienced federal court practitioner can dramatically decrease the chances of a problem and increase the chances that your mandamus petition will be successful.


Aaron is an experienced federal court practitioner, including in area of immigration law. Please call Aisen Law, PLLC for a free consultation about whether a petition for a writ of mandamus is appropriate in your case.


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