Is your immigration paperwork stalled? There's a lawsuit for that.
Mandamus, Latin for "do your job", is a type of lawsuit that attempts to force the government to take action when they are sitting on paperwork. Immigrants are filing them more than ever.
Few words better characterize the U.S. immigration system than the word “backlog.” There’s an immigration court backlog of 2.5 million cases, a green card backlog, a backlog in visas for SIJS children who have been abandoned, abused, or neglected, a backlog of humanitarian paperwork for Afghan refugees, and a backlog in immigrant visas for family members in other countries—just to name a few.
This is a systemic problem that requires systemic solutions such as hiring more judges, reducing the time to adjudication, and reforming the immigration system from the ground up, which Congress refuses to do. However, when systemic solutions are not available, it is entirely reasonable for individuals living with the consequences of systemic problems to seek justice for their cases.
In the immigration system, one form that this takes is called a mandamus lawsuit. A writ of mandamus is an order (historically from the King or a sovereign, now from a court) to a lower authority or government official to follow through on one of their responsibilities. In immigration cases, mandamus lawsuits are filed when someone submits immigration paperwork—often related to their immigration status—but doesn’t hear back for years and years, forcing them to live “in limbo” (as people like to say).
Mandamus lawsuits usually do not go all the way to court. Sometimes simply filling the mandamus lawsuit itself is enough to force the agency to act. And as long as the case is straightforward, it might be a sure bet to get the government to finally approve, say, a green card application—which for most people will be life-changing. The American Immigration Council has a useful practice advisory about mandamus lawsuits online.
Immigration attorney Lily Axelrod posted online this week about precisely this type of case. One of her clients, the spouse of a U.S. citizen, experienced a significant delay in having their green card application approved. After Lily filed a mandamus lawsuit, USCIS responded immediately to set an interview and approve the application. A huge win for Lily’s client! But a sad commentary on what it takes to get an answer from the government.
By the way, this isn’t the first time I’ve featured Lily Axelrod here. I also discussed her excellent live coverage of meetings with government officials here back in June.
It shouldn’t take the threat of lawsuits for immigrants to get a decision on their immigration paperwork. But immigrants whose lives are on the line are increasingly turning to lawsuits to get their applications unstuck from the slow machinery of immigration bureaucracy.
Lily’s case isn’t unique. TRAC, a research institute at Syracuse University (where I work), recently published a report that looked at the growth in mandamus lawsuits since 2008 and found considerable growth since 2020 with record-high numbers projected through the end of 2023. Lily’s client is just one of literally thousands of immigrants who feel forced to turn to lawsuits—and absorb the added legal costs—to get their paperwork processed.
One final note about mandamus lawsuits: they aren’t all positive. Remember: writs of mandamus do not tell the officials how to act; writs of mandamus orders them simply to act. And therein lies the risk of a mandamus lawsuit. You could end up forcing the government to take a negative action sooner. This alone creates a disincentive and probably a ceiling on just how many immigrants will actually file these claims, especially when the paperwork is more discretionary and less of a sure thing.
Yalda Royan said as much in her article for Slate about Afghan refugees:
Legally, I could file a mandamus action to urge the asylum office to make a decision in my case, but I don’t want to push them toward a negative decision, and I also felt incredible guilt at spending another $410 for the filing fee.
What does all of this mean for the immigration system? It means that years of systemic neglect, Congress’s failure to act, and growing desperation among immigrants who are waiting in limbo are forcing many to take individual actions (i.e., filing lawsuits) that might be their only way forward but which no one wants. Clients don’t want to add to their legal bills. I truly believe that attorneys would rather do other things with their time even if they are paid (and I have a feeling that some attorneys are doing these pro bono). And the government doesn’t want to go to court over every single one of their backlogged petitions and applications.
But here we are because instead of fixing the institutions, we’ve decided as a country to offload the labor, the financial burden, and the emotional toll onto individual people. We need systemic solutions to systemic problems. Growing numbers of mandamus lawsuits are likely getting results for those who can file them. But in the scheme of things, it’s a non-solution solution for a problem that should be solved upstream within the immigration system itself.
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