You have decided to file a petition for a writ of mandamus to get your immigration application moving after a long delay. But where do you file it?
There is a lot to consider, and I recommend that you hire an experienced federal court immigration litigator to assist you. This could save you time and money in the long run.
Generally, Federal law provide a list of options as to the venue of the petition:
(A) where a defendant (a United States officer or employee) resides;
(B) where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(C) where the plaintiff resides if no real property is involved.
In addition, there are other more specific requirements laid out in statute and case law. For example, federal law requires that a person filing a mandamus petition related to a delay in their citizenship application must file the mandamus petition where that person lives. 8 U.S.C. 1447(b).
Based on these options, there are sometimes several possibilities as to the court. A good attorney will, if possible, pick a venue that offers the path of least resistance.
For example, all immigration mandamus petitions are against one or more officers of the United States. Therefore, many mandamus petitioners can be filed in the United States District Court for the District of Columbia. But, most lawyers who are familiar with mandamus petitions in this court will avoid this if possible because it can be unfriendly to petitioners. The United States Attorney's Office in the District of Columbia usually pushes back and files motions to dismiss these actions or transfer them to other courts. These motions can create delays and increase costs. Sometimes, there is no option but to file here. But, when given the opportunity, most attorneys will pick a different court.
The third option is relatively straightforward - filing where the plaintiff lives. Subject to other federal rules and case law in the judicial circuit where they live, most applicants can file in the judicial district where they live. However, even this can be tricky because some courts have held that noncitizen plaintiffs, including green card holders, do not technically "reside" in the United States for purposes of suing in court. So, these cases can be transferred to Washington, D.C.
The second category, where "a substantial part of the events or omissions giving rise to the claim occurred," provides some options. You can sue where your application is being processed. A student living in another country and applying for an F1 visa at an embassy or consulate can bring the suit where the university or college is located. A U.S. Citizen sponsor can sue where he or she lives for a delay of a green card application for a family member living in another country.
There are many things to consider when deciding where to bring your mandamus petition. An experienced lawyer can help you navigate these issues.
I have experience in navigating these types of issues. If your immigration application is unreasonably delayed, please give me a call today for a free initial consultation about your case.
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