Writ of Mandamus

A writ of mandamus is a court order that mandates a lower court, government official, public body, corporation, or individual to fulfill their official duties or correct an abuse of discretion. Also called a “writ of mandate,” the writ of mandamus has rules that vary between jurisdictions, but it is generally most used when a party has no alternative forms of review.

Article outline:

Mandamus in the United States

In the presidential election of 1800, Thomas Jefferson defeated John Adams to become the third president of the United States. Adams, a Federalist, along with the Federalist–controlled Congress, passed the Judiciary Act of 1801 which expanded the number of circuit courts in the U.S. and judges in each circuit. The new act also gave Adams the power to appoint judges for the new positions. In order to stymie the incoming Democratic-Republican administration, Adams selected dozens of newly appointed Federalist judges before leaving office. Though most of the judicial commissions were approved before Jefferson entered office, Jefferson ordered his attorney general not to deliver the remaining commissions, including that of William Marbury, a Federalist. To Jefferson, the undelivered commissions were not submitted in time and therefore void. Marbury sued the Secretary of State, James Madison, to force him to deliver his commission as a justice of the peace.

In the case of Marbury v. Madison, new Chief Justice John Marshall denied Marbury a writ of mandamus. Marshall further explained that the Supreme Court did not have the jurisdiction to issue a writ of mandamus even though the Judiciary Act of 1789 stated that the Supreme Court could do so. In effect, Marshall found a section of the Judiciary Act of 1789 null and void. Marbury v. Madison established judicial review, which gives the Supreme Court the authority to declare acts of Congress, and the President of the United States, unconstitutional.

Types and Purpose

There are two different writs of mandamus:

  • Peremptory – given when the right to require a certain duty is clear and there is no valid excuse for nonperformance
  • Alternative – allows the defendant to give a reply as to why they should not be compelled to comply with the writ

The difference between the writs is procedural. The reviewing court may find a writ to be peremptory, which compels the opposing party to perform the duty in question. If the writ is alternative, the opposing party may argue against the writ.

Use in Immigration Law

For the purposes of Untied States Immigration Law, writs of mandamus are most common when the USCIS is delaying the adjudication of a case, mostly when filing an adjustment of status (AOS) but can also apply to naturalization cases. In AOS cases, final green card issuance depends on the approval of the Form I-485 after the initial approval of a Form I-140. After I-140 approval, the main determinant in receiving a green card is the availability of a visa number.

In some cases, the I-485 applicant will have their I-140 approved but USCIS will delay I-485 approval despite the availability of a visa number. Though certain delays are routine, others may be considered excessive. Excessive delays may require legal action in order to avoid undue hardship and maintain job security.  In the case of an excessive delay, the petitioner or plaintiff must establish that:

  • The claim is clear and certain
  • The duty owed is ministerial
  • No other adequate remedy is available
  • He or she has exhausted all possible remedies

Sending a “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment” to USCIS informs the USCIS that a lawsuit is ready to be filed against them and shows evidence surrounding the potential lawsuit. The notice can come with a request to expedite the processing of the immigration benefit in question and a notice of legal action if a favorable decision is not reached in a timely manner. Since lawsuits are both time-consuming and expensive, it is ideal to try to handle cases directly with USCIS first. Please note that immigration cases are always handled by federal courts, not state courts. There are several steps to filing a writ of mandamus, which include preparing a lawsuit, filing with the appropriate court, summoning and serving the defendants, and making copies of relevant paperwork among other things.

One of the most important factors in a successful WOM is that an attorney needs to have substantive knowledge of immigration law.   The legal brief filed with the lawsuit has to carefully address a clear legal basis for the lawsuit, citing the Immigration and Naturalization Act, agency memoranda, and also incorporate an analysis of the facts. In addition, filing and other procedures with the federal court involve expertise and experience.  Most importantly, an experienced attorney should be able to evaluate the strength and possible outcome of a case up front to give clients clear expectations. Zhang and Attorneys is experienced in communicating with USCIS in cases involving excessive delay as well as filing writs of mandamus against USCIS successfully. Successful writs of mandamus filed by Z&A can be found here and here.

Samples and Templates:

The Following downloadable templates for different writs of mandamus.

Citizenship petition with interview

Citizenship petition without interview

Change of Status (Form I-485)

(Updated 10/10/2012 by AD)

For more information on how to file an Adjustment of Status, please click on one of the following topics below: