Mandamus Action for Asylum Delays

The U.S. asylum process is designed to offer protection to those fleeing persecution and seeking refuge in the United States. However, asylum seekers often face significant delays in the scheduling of their interviews, which can result in prolonged uncertainty and stress. In some cases, asylum applicants who have filed Form I-589 have waited years for an interview, with no clear indication of when their case will be adjudicated. One potential legal recourse for those experiencing excessive delays is to file a mandamus action.

What is a Mandamus Action?

A mandamus action is a lawsuit filed in a federal district court that seeks to compel a government agency to perform a duty that it is legally obligated to complete. In the context of asylum interview delays, a mandamus action can be used to compel U.S. Citizenship and Immigration Services (USCIS) or other relevant government agencies to schedule an interview or make a decision on a long-pending asylum application.

Mandamus actions are based on the principle that the government has a duty to carry out its responsibilities within a reasonable period. If an asylum seeker has been waiting an unreasonably long time for an interview or decision, a mandamus lawsuit can help push the government to take action.

What is an “Unreasonable Delay”?

In the context of a mandamus action, an unreasonable delay refers to a delay by a government agency, such as USCIS, in performing a mandatory duty—such as scheduling an asylum interview or adjudicating an application—that exceeds what would be considered a reasonable time frame under the circumstances.

An unreasonable delay in the context of a mandamus action is a delay that exceeds a reasonable time frame, given all the circumstances surrounding the case. Courts use several factors to determine reasonableness, including the length of the delay, the impact on the applicant, the agency's workload, and the nature of the government's duties. If an applicant believes they have experienced an unreasonable delay in their asylum or immigration process, consulting with an experienced attorney can provide valuable guidance on whether filing a mandamus action is an appropriate remedy.

The term "unreasonable delay" is not strictly defined by statute; instead, courts evaluate it on a case-by-case basis. Courts typically apply a "reasonableness" standard to determine whether the delay is unreasonable, taking into account various factors that help balance the agency's workload, priorities, and the applicant's right to a timely decision.

Key Factors Courts Consider When Determining Unreasonable Delay

Courts often rely on the factors outlined in the Administrative Procedure Act (APA) and subsequent case law to assess whether a delay is unreasonable. One of the most commonly used tests is the TRAC factors established by the D.C. Circuit Court in the case Telecommunications Research & Action Center v. FCC (TRAC) in 1984. The TRAC factors provide a framework for analyzing whether a delay is reasonable:

1. The Time Agencies Take to Make Decisions Must Be Governed by a "Rule of Reason": This factor considers whether the time taken by the agency is consistent with a reasonable time frame. Courts generally recognize that some delays are unavoidable, especially when a high volume of cases or complex security checks are involved. However, when the delay becomes excessively long without justification, it may be deemed unreasonable.
2. Congressional Timetable, if Any, May Supply Content for the Rule of Reason: If Congress has established a timetable for agency action (e.g., specific statutory deadlines), the courts may consider the agency's compliance or failure to comply with those timelines as part of the reasonableness analysis. In the context of asylum, there is no specific statutory deadline for scheduling an interview or adjudicating an application, but general administrative principles apply. For purposes of asylum delays, our office usually argues that Congress has mandated that asylum applications be adjudicated within 180 days. According to INA, Title II § 208, 8 U.S.C. § 1158(d)(5)(A)(iii), in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.
3. The Impact of Delays on Human Health, Welfare, and Rights: This factor looks at the impact of the delay on the applicant. If the delay is causing significant hardship to the applicant—such as prolonged separation from family, inability to work, or severe emotional distress—the court is more likely to consider the delay unreasonable. Separation from other family members who still reside in the country of persecution, or inability to fully enjoy your life in the United States while waiting for an asylum interview are all considered.
4. The Effect of Expediting Delayed Action on Agency Activities of Higher or Competing Priority: The courts consider whether forcing the agency to act more quickly on one case would adversely impact other cases. Agencies must balance their resources among many competing priorities, and forcing action in one case could delay others.
5. The Nature and Extent of the Interests Prejudiced by Delay: The court evaluates the degree of harm or prejudice suffered by the applicant due to the delay. For example, asylum seekers facing prolonged uncertainty, inability to reunite with family members, or psychological stress may have a strong case for unreasonable delay.
6. There Is No Need to Find "Bad Faith" to Hold a Delay Unreasonable: The court does not need to determine that the agency acted in bad faith for a delay to be deemed unreasonable. An unreasonable delay can exist even if the agency is acting in good faith but is overwhelmed or mismanaged.

Examples of What May Constitute Unreasonable Delay

• Length of Delay: Courts have generally found delays of several years to be unreasonable, especially when there is no clear explanation or justification provided by the agency. For instance, waiting 3-5 years or longer for an asylum interview or decision without a response from USCIS could be considered unreasonable.
• Agency Inaction Despite Follow-ups: If the applicant has made repeated attempts to contact the agency, submitted inquiries, or sought help from congressional representatives, and the agency still has not acted or provided a clear timeline, the delay might be considered unreasonable.
• Unexplained Delays Despite Clear Eligibility: If there is no apparent reason for the delay (such as a pending background check or a need for further documentation), and the applicant's case is straightforward, this could further support an argument for unreasonable delay.

Why Are Asylum Interview Delays So Common?

Delays in asylum interviews can occur for various reasons:

1. High Volume of Applications: The number of asylum applications submitted each year often exceeds the capacity of USCIS and immigration courts to process them promptly. The backlog of cases has been growing, leading to significant delays.
2. Limited Resources: USCIS and immigration courts may lack sufficient personnel and resources to handle the growing volume of asylum applications, contributing to longer waiting times.
3. Priority Scheduling: Certain types of cases may be given priority, such as applications from individuals who are detained or considered a high priority for national security reasons. As a result, other cases may be pushed further down the line.
4. Changes in Immigration Policy: Frequent changes in U.S. immigration policy can cause delays as agencies adapt to new regulations, procedures, or directives.
5. Background Checks and Security Clearances: Some cases require extensive background checks and security clearances, which can prolong the wait time for an interview.

When Should You Consider Filing a Mandamus Action?

While delays are common in the asylum process, they are not always grounds for a mandamus action. It is important to assess whether the delay is considered "unreasonable" under the circumstances. Factors to consider when determining whether to file a mandamus action include:

• Length of the Delay: If you have been waiting significantly longer than the average processing time (which varies depending on the jurisdiction), you may have grounds for a mandamus action. Generally, waiting for two years or more without any communication or updates from USCIS may be considered unreasonable.
• Efforts to Resolve the Delay: Before filing a mandamus action, you should have made reasonable attempts to resolve the delay through other channels, such as contacting USCIS or submitting inquiries through congressional offices.
• Individual Circumstances: Personal factors, such as family separation, medical needs, or the need for employment authorization, may strengthen your case for mandamus relief.

Asylum Interview Delay and Asylum Decision Delay

In the asylum context, there are two different phases in which you could face a delay. The most common reason is a delay in scheduling your asylum interview. Many individuals report waiting years without receiving an asylum interview notice from USCIS.

Other individuals have attended their asylum interview, however, they have not yet received their asylum decision. These are known as asylum decision delays, and a mandamus action can be filed both to help schedule an asylum interview, or separately, to force USCIS to make a decision on an asylum interview that already took place.

For individuals who hire our law firm to schedule an asylum interview, we usually negotiate with the government to allow for a decision on the asylum application shortly afterwards. This can be between 10 to 120 after your asylum interview.

Filing a Mandamus

Filing a mandamus action is a legal process that involves multiple steps. It is advisable to consult with an experienced immigration attorney to assess your situation and help you navigate the process. Here is an overview of the steps involved:

1. Consult with an Immigration Attorney

An experienced attorney can evaluate whether your case meets the criteria for a mandamus action and discuss the potential risks and benefits. Not all delays warrant a mandamus lawsuit, and an attorney can help you understand your legal options.

2. Prepare the Mandamus Complaint

A mandamus action begins with the filing of a formal complaint in federal district court. The complaint should outline:

• The facts of your case, including the date of your asylum application and the duration of the delay.
• Legal arguments demonstrating that the delay is unreasonable and that USCIS or the relevant agency has a duty to act.
• A request for relief, which typically asks the court to order the agency to schedule an asylum interview or adjudicate the case.

3. File the Complaint in Federal Court

The complaint must be filed in the appropriate federal district court, which generally depends on your place of residence. The filing will also involve payment of a filing fee, and the complaint must be properly served to the defendants (typically the heads of USCIS, the Department of Homeland Security (DHS), and other relevant officials).

4. Government's Response

After the mandamus complaint is filed, the government has a specified period (usually 60 days) to respond. In some cases, the government may argue that the delay is justified, or they may seek to have the case dismissed. However, often the filing of a mandamus action prompts the agency to act on the delayed application to avoid litigation.

5. Possible Outcomes

The potential outcomes of a mandamus action include:

• Interview Scheduled or Decision Made: In many cases, the mere filing of a mandamus action is enough to prompt USCIS to schedule an asylum interview or make a decision on the case.
• Negotiated Settlement: Sometimes, the government may negotiate a settlement to schedule the interview or take action on the application within a specific timeframe.
• Court Order: If the court finds that the delay is unreasonable, it may issue a writ of mandamus, ordering the agency to take action on the application.

Surviving a Motion to Dismiss

In the context of a mandamus action filed to compel a government agency to take action on an immigration matter, such as an asylum interview or adjudication of an application, the motion to dismiss is a legal move by the government (the defendant) to seek dismissal of the lawsuit. A motion to dismiss essentially argues that the lawsuit is legally insufficient and should not proceed to trial or further court consideration.

When a mandamus lawsuit is filed against a government agency, the agency often responds by filing a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, specifically citing reasons such as lack of jurisdiction, failure to state a claim upon which relief can be granted, or the case being moot. Here’s a detailed discussion of how a motion to dismiss operates in the mandamus context:

Grounds for a Motion to Dismiss in a Mandamus Action

1. Lack of Subject Matter Jurisdiction (Rule 12(b)(1)):
   • The government may argue that the court lacks the authority to hear the case. This can be based on the assertion that the petitioner has not established a valid basis for federal court jurisdiction. For example, if the plaintiff fails to show that the agency has a non-discretionary duty to act, the court may lack jurisdiction under the Mandamus Act (28 U.S.C. § 1361).
2. Failure to State a Claim Upon Which Relief Can Be Granted (Rule 12(b)(6)):
   • This is one of the most common grounds for a motion to dismiss in a mandamus action. The government may argue that even if all the facts alleged in the complaint are true, there is no legal basis for the relief sought. For example:
     • The government might argue that the delay is not "unreasonable" under the Administrative Procedure Act (APA).
     • The government could also argue that there is no "clear and indisputable" right to relief or that the agency's actions (or inactions) fall within its discretion and are not subject to a writ of mandamus.
3. Mootness:
   • If the government takes action after the mandamus complaint is filed (such as scheduling the interview or adjudicating the application), it may argue that the case is now moot because the relief sought by the petitioner has already been granted. In such cases, the court is likely to dismiss the case as there is no longer a live controversy requiring resolution.
4. Failure to Exhaust Administrative Remedies:
   • The government may argue that the petitioner has not exhausted all available administrative remedies before seeking judicial intervention. Although the Mandamus Act does not explicitly require exhaustion of administrative remedies, courts often consider whether the petitioner has made reasonable attempts to resolve the delay through internal agency channels, such as filing inquiries or requesting assistance from congressional representatives.
5. Agency's Broad Discretion and Prioritization:
   • The government often contends that it has broad discretion in prioritizing and managing its caseload, especially in contexts like asylum processing, where numerous cases are pending. The government may argue that expediting one case could impact other cases of equal or higher priority, and thus, a court order is not warranted.

Key Arguments in a Motion to Dismiss for Mandamus Actions

1. Agency Backlogs and Resource Constraints:
   • The government often cites resource constraints, high volume of applications, and backlogs as reasons for delays, arguing that they are not acting in an "unreasonable" manner but are constrained by their capacity to process cases.
2. Reasonableness of Delay:
   • In mandamus cases involving delays, the government will often argue that the delay in question is "reasonable" given the circumstances. They might refer to the TRAC factors to justify the delay, emphasizing factors like national security concerns, ongoing background checks, or the complexity of the case.

3. No Clear Right to Relief:
   • The government may assert that the petitioner does not have a "clear and indisputable" right to have their case adjudicated within a specific timeframe, especially when Congress has not set statutory deadlines for such actions.
4. Failure to Show Inadequate Remedy at Law:
   • The government might argue that there are other adequate remedies available, such as making additional inquiries or waiting for the agency's standard processing to occur. They may claim that the extraordinary remedy of mandamus is not warranted in such cases.

Possible Outcomes of a Motion to Dismiss

1. Dismissal of the Case:
   • If the court agrees with the government’s arguments, it may dismiss the case either in whole or in part. A dismissal with prejudice means that the petitioner cannot refile the same claim, while a dismissal without prejudice allows the petitioner to address the deficiencies in the case and potentially refile.
2. Denial of the Motion to Dismiss:
   • If the court finds that the petitioner has made a plausible claim for relief and that there are sufficient grounds to proceed, it will deny the motion to dismiss. The case then moves forward to discovery, additional motions, or possibly trial.
3. Partial Dismissal:
   • The court may grant the motion to dismiss in part, allowing some claims to proceed while dismissing others. For example, the court might dismiss claims based on the Mandamus Act but allow claims under the APA to proceed.
4. Opportunity to Amend the Complaint:
   • If the court dismisses the case but finds that the deficiencies in the complaint could be remedied, it may grant the petitioner leave to amend the complaint. This provides the petitioner with an opportunity to clarify their claims or provide additional supporting evidence.

Strategies for Overcoming a Motion to Dismiss in Mandamus Cases

To successfully counter a motion to dismiss, petitioners must:

• Provide Evidence of Unreasonable Delay: Present evidence that the delay is unreasonable under the TRAC factors, showing how the delay has caused significant hardship or prejudice.
• Demonstrate a Clear Right to Relief: Clearly establish that the agency has a non-discretionary duty to act and that the delay is beyond what is reasonable under the law.
• Show Exhaustion of Remedies: Demonstrate that all reasonable steps have been taken to resolve the delay through administrative means before resorting to the court.
• Argue the Adequacy of Relief Sought: Emphasize that there is no other adequate remedy available and that judicial intervention is necessary to obtain timely relief.

A motion to dismiss is a common defense tactic used by the government to challenge a mandamus action in the context of immigration delays. Understanding the grounds for dismissal and preparing strong arguments and evidence to counter these claims is crucial for petitioners seeking to compel government action through a mandamus lawsuit. Working with an experienced immigration attorney can greatly enhance the chances of successfully navigating these complex legal challenges.

Mandamus Act vs. Administrative Procedure Act (APA) for Delay

Both the Mandamus Act and the Administrative Procedure Act (APA) provide legal frameworks for challenging delays by government agencies, such as those involving asylum interviews or immigration benefits. Although these two acts are often used together in cases seeking to compel agency action, they serve different legal purposes and have distinct requirements.

1. The Mandamus Act

• What It Is: The Mandamus Act, codified at 28 U.S.C. § 1361, provides federal district courts with the authority to issue a writ of mandamus to compel a U.S. government officer, employee, or agency to perform a duty that is "clearly owed" to the petitioner.
• Purpose: A writ of mandamus is an extraordinary remedy used to compel a government agency or official to perform a duty that is non-discretionary, meaning it is a mandatory obligation rather than a matter of agency discretion.
• Requirements: To succeed under the Mandamus Act, a petitioner must demonstrate three key elements:
  1. Clear Right to Relief: The petitioner must show they have a clear and indisputable right to the relief sought.
  2. Duty to Act: The government agency or official must have a non-discretionary duty to act. For example, USCIS has a duty to adjudicate an asylum application, though the specific timing of the adjudication is not always mandated.
  3. No Other Adequate Remedy Available: The petitioner must prove there is no other adequate remedy available to address the delay or inaction.
• Scope of Review: The court's review is limited to determining whether the agency has failed to perform a mandatory duty. The court does not decide how the agency should perform that duty or what the outcome should be; it only orders the agency to act.

2. The Administrative Procedure Act (APA)

• What It Is: The APA, codified at 5 U.S.C. §§ 701-706, governs the process by which federal agencies develop and issue regulations, as well as the process for judicial review of agency actions, including delays. Under the APA, individuals can seek judicial review of agency actions that are "unlawfully withheld or unreasonably delayed."
• Purpose: The APA is designed to ensure that agencies act within the bounds of their statutory authority and follow fair procedures. It provides a legal avenue for challenging agency action (or inaction) that is arbitrary, capricious, an abuse of discretion, or not in accordance with the law.
• Requirements: To challenge a delay under the APA, a petitioner must demonstrate:
  1. Agency Action Withheld or Delayed: The petitioner must show that the agency has unlawfully withheld or unreasonably delayed action that it is required to perform.
  2. Standing: The petitioner must have standing, meaning they must show that they are directly affected by the agency's delay.
  3. Unreasonableness: Courts use a reasonableness standard to assess the delay. The TRAC factors provide the framework for evaluating whether a delay is unreasonable.
• Scope of Review: The APA gives courts broader authority than the Mandamus Act to review agency actions, including the ability to set aside agency actions that are found to be arbitrary or capricious, or to compel agency action that is unlawfully withheld or unreasonably delayed.

Differences Between the Mandamus Act and APA in Addressing Delays

1. Type of Relief Sought:
   • Mandamus Act: Seeks to compel the government to perform a specific, non-discretionary duty. It is an extraordinary remedy used when there is a clear duty to act.
   • APA: Provides a broader remedy that allows courts to review agency inaction or delays and determine whether they are reasonable. The APA can also compel agency action that is unlawfully withheld or unreasonably delayed.
2. Standard of Review:
   • Mandamus Act: Requires a higher standard of proof, as the petitioner must demonstrate that there is a "clear right to relief" and no other adequate remedy exists.
   • APA: Uses the "reasonableness" standard to assess whether a delay is justified. The court considers multiple factors (the TRAC factors) to evaluate whether the delay is unreasonable.
3. Agency Discretion:
   • Mandamus Act: Applies only to non-discretionary duties, meaning duties that the agency is legally required to perform. It does not apply to actions where the agency has discretion.
   • APA: Can be used to challenge both discretionary and non-discretionary actions, as long as the agency's inaction or delay is deemed unreasonable under the law.
4. Practical Usage:
   • Mandamus Act: Often used as a last resort when all other options have been exhausted, and there is no other adequate legal remedy available.
   • APA: More commonly used to challenge agency delays, as it provides a more flexible standard and allows for a broader range of remedies.

Combining the Mandamus Act and APA in Lawsuits

In many cases involving immigration delays, such as prolonged asylum interview delays, attorneys will combine claims under both the Mandamus Act and the APA in the same lawsuit. This dual approach can strengthen the case by arguing that:

• Under the Mandamus Act, the agency has a clear, non-discretionary duty to adjudicate asylum applications within a reasonable time, and it has failed to perform this duty.
• Under the APA, the agency's delay in scheduling an asylum interview or deciding the case is "unreasonably delayed," violating the petitioner's right to timely adjudication under the law.

By combining these claims, the petitioner can maximize the chances of obtaining relief, as it provides the court with multiple legal grounds to order the agency to act.

The Mandamus Act and the Administrative Procedure Act (APA) are powerful legal tools available to challenge unreasonable delays in asylum interviews and other immigration processes. While both acts can be used separately or in combination, the choice of strategy depends on the specifics of the case, the nature of the delay, and the likelihood of success based on the facts presented. For anyone experiencing prolonged delays in the immigration process, consulting with an experienced immigration attorney is essential to determine the best course of action and to navigate the complexities of these legal remedies.

Risks and Considerations of Filing a Mandamus Action

While a mandamus action can be an effective tool to address asylum interview delays, there are potential risks and considerations:

1. Adverse Decision: Filing a mandamus action may prompt the government to issue a decision on your asylum application, but there is no guarantee that the decision will be favorable. In some cases, the government could issue a denial, which could lead to removal proceedings. Therefore, if you do not have a strong case, it may not make sense to file a mandamus action.
2. Legal Costs: Filing a mandamus action involves legal fees and court costs. It is essential to consider whether the potential benefits outweigh the costs. Federal court litigation against a governmental agency is no small task, and working with an attorney who regularly handles mandamus actions is important.