DON’T FEAR THE MANDAMUS!

   

There is little but bad news coming out of the immigration system these days, and so, the word is “Mandamus.” Most savvy applicants waiting for adjudications have a general idea of what Mandamus is, but let’s understand it better:

What’s the actual process?

The Mandamus begins with a “Complaint” that is filed in the US District Court for the appropriate district, which might be Washington, or where the project is located. The Complaint is served, or officially presented, to the government. Internally, it must be assigned. Depending on the subject matter, it will likely be assigned to a lawyer at the Department of Justice who works in one of the litigation divisions.

In front of the US Supreme Court building, after my admission to the Bar of the Court, June 2, 2008.

The attorney who first reads your Mandamus Complaint probably has no knowledge of the day-to-day activities at the agency handing your matter. But like any reasonable person, s/he wants less work, not more. Therefore, to find out what’s going on, s/he will usually contact the attorney that works “in-house” at the adjudicating office, who will be the contact and liaison between the attorney that handles the litigation and the adjudicating officer. Typically, the first notice of the existence of the Mandamus at the adjudicating agency will take place 45-60 days after it’s filed.

In most cases, the request for a status will eventually encourage the agency lawyer to ask for a status report on the matter. Most Mandamus will conclude shortly thereafter, because agency management will designate an adjudicator to work the file to get rid of the Mandamus. This is why most attorneys will tell you that, 99% of the time, the Mandamus results in adjudication.

After service (presentation) of the Complaint on the government, the clock ticks away until the government attorney must file a formal response to your matter. The response will typically be in the form of a Motion to Dismiss, or a formal document called an Answer. However, if the file has been lined up for adjudication, the government attorney will offer a Stay. A Stay is an agreement holding the litigation in abeyance pending the adjudication of the case. Generally, only a foolish lawyer will refuse the request for a stay, and in over 20 years of litigation experience, I cant remember a court ever refusing to grant one when the parties make a joint request for a Stay. 

Will the Court get angry at me?

I recently had a discussion with a client who was afraid to file the Mandamus because some other lawyer told him that it might anger the judge. That’s pretty unlikely. 

First, consider why you are thinking about Mandamus in the first place - time. Litigation in US District Courts takes a lot of time, and you are already tired of waiting. If you file today, the earliest a judge would even know you exist is probably 60 days hence - minimum. So get the ball rolling. You can always decide to withdraw your Complaint later. 

Second, judges get graded on numbers, just like adjudicators, and easy cases make good statistics. While judges don’t like unnecessary work, if you hire the right lawyer, s/he will deal with the Court respectfully, and few US District Court judges will hold it against you if you withdraw a case or decide to enter into a Stay with the hope of ending a dispute. 

Finally, if you have a legitimate dispute with he government, there is nothing to fear. Even in this cynical age, there is no better guaranty of an individual’s rights than a US District Court judge. Our judges are appointed for life, in order to insulate them from politics. They don’t work for the government. They work for us. Although New Jersey District Court Judge Joseph Irenas - a realist and a cynic -  once told me never to confuse a courtroom with a church, this is the law - 28 U.S. Code §453:

Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”

Why does my attorney seem to be discouraging me from Mandamus?

Unfortunately, particularly in the EB5 field, your attorney may have divided loyalties. That should worry you more than the ire of some judge who will probably never know you exist. Most EB5 applicants vet projects and then ask the Regional Center, or the developer, for a referral to an attorney. For that attorney, most of the time, an EB5 client is a one-time deal - a single customer. But the developer or Regional Center has an ongoing stream of business to send to the attorney. Once you pay the flat fee, your attorney is already thinking about the next case. 

So, if you are thinking about Mandamus, and your attorney seems to want to talk you out of it, you may wish to ask your attorney how many EB5 cases they have, and where they came from. Consider what the Regional Center or developer have to gain or lose from the Mandamus. You might also ask, why, if you paid your flat fee already, and the fee agreement cover only up to the FILING of the I-526, the attorney has any interest in you at all. The answer is that they may be working for someone else - and not for you.

OK, but won’t USCIS punish me for the Mandamus?

It is unlikely that USCIS will treat you harshly and deny or RFE a file as punishment. Once the mandamus is filed, and if the case is ordered to be adjudicated by a court, the world is watching! Nobody at USCIS wants to be called before a US District Court Judge and sanctioned. They will try to get it right. 

I worked as an adjudicator of petitions and visas for 10 years, and I never saw a case deliberately mishandled out of spite. The fact is, most US government dysfunction is the result of bad management and incompetence, not malice. The average adjudicator is actually embarrassed by the excessive delays, and wishes his/her agency could do better. 

I am cynical generally, but I have found that the average US government employee is an honorable person who wants to follow the law. The idea that adjudicators hate immigrants and want to deny them is ridiculous. Many ARE immigrants. Why work in a context you hate? Incompetence creeps in, aided by bad management, and sometimes politicians intrude, but adjudicators are as decent as anyone else. I was one. There is nothing to fear. 

A copy of my CV is available here on the site. However, I have over 20 years of experience litigating cases before US federal and State Courts. I have taken the Bar exam and been admitted to practice law in New York, New Jersey and Pennsylvania. I have appeared before US Federal courts all over the country. More than anything, I tenaciously represent the people that hire me. I have no divided loyalties. Feels free to reach out for a free consultation.