In a February 4, 2008, USCIS memorandum, "Revised National Security Adjudication and Reporting Requirements," Michael Aytes, Associate Director of USCIS, announced a major shift in the agency's approach to FBI name checks of pending applications. According to the memo, after a FBI fingerprint and IBIS check have been completed, and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the application and proceed with the card issuance. This new procedure applies to Applications for Adjustment of Status (I-485); Applications for Waiver of Ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687); or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698). USCIS still requires name check clearance for Applications for Naturalization (N-400).

The memo affects all applicants whose FBI name check requests have been pending for 180 days. This group also includes applicants with pending district court or court of appeals actions challenging delays in the adjudication of applications.

Applications at Service Centers and Field Offices

In an FAQ issued by USCIS after the adoption of the new name check policy, USCIS anticipated that the majority of the cases subject to the policy modification would be processed by mid-March 2008. USCIS recommended that applicants wait until March 10, 2008 before inquiring about their cases. If no action is taken by mid-March, USCIS recommends inquiring with the USCIS customer service line at 1-800-375-5283. AILA members are now submitting individual liaison requests.

Applications in Pending Court Actions

All applicants with pending court actions to which the memo applies may contact the attorney representing the government in their case and ask that the attorney agree to a stipulated remand. If possible, try to include in the stipulated remand to USCIS an agreed-upon time period in which the application will be adjudicated by the agency. Without a timeframe for adjudication, the client could experience another long delay before the agency acts on the application. If the government does not agree to a remand with a specific agreed-upon timeframe, it may still be a good idea to move the court to remand the case to USCIS for adjudication within a specific timeframe or to ask the court to hold the case in abeyance until USCIS has a reasonable opportunity to implement the new policy by adjudicating your client's case. You will want to demonstrate in the motion that all prerequisites for immediate adjudication under the new policy have been met: 1) the application is covered by the memo, e.g., it is an Application for Adjustment of Status (I-485); 2) the FBI and IBIS check have been completed and; 3) the FBI name check request has been pending for 180 days.

Although adjustment of status applications will now be adjudicated even when the FBI name check is not complete, mandamus actions are still necessary to compel agency action on other immigrant applications, such as applications for naturalization prior to the naturalization interview. Increasingly, the government is challenging the jurisdiction of courts to review agency delay. No appellate court has yet ruled on the jurisdictional attacks by the government.

AILF's practice advisory, Mandamus Jurisdiction Over Delayed Applications: Responding to the Government's Motion to Dismiss, provides several arguments that a plaintiff may use to counter the agency's jurisdictional attacks.

When a court grants mandamus relief, it usually will direct USCIS to adjudicate an application or petition within a certain period of time, or order the agency to promptly process an application or petition without providing a deadline. For example, in Aboushaban v. Mueller, No. 06-1280, 2006 U.S. Dist. LEXIS 81076, *9 (N.D. Cal. 2006), the court directed USCIS to adjudicate the plaintiff's I-485 application and to inform the court of its decision. The court provided no concrete deadline, but maintained jurisdiction over the case to ensure that its orders were carried out. In contrast, in Haidari v. Frazier, No. 06-3215, 2006 U.S. Dist. LEXIS 89177, *18-19 (D. Minn. 2006), the court ordered the agency to complete its adjudication of plaintiffs' applications within 30 days.

In litigating a mandamus case, consider the following strategies:

• Specifically requesting that the court order USCIS to adjudicate the application or petition within a certain time period, for example, 30 or 60 days.
  
  
• Asking the court to maintain jurisdiction over the action even after granting mandamus relief so that the court can enforce its order. Alternatively, a plaintiff may request that the court require USCIS to periodically update the court about its progress.
  
  
• In cases where the plaintiff knows or suspects that security checks are causing the delay, naming the FBI in addition to USCIS to ensure that the court has jurisdiction over both agencies. The court may then order either or both to complete the investigation of the plaintiff and process the application or petition.

Courts have awarded attorney's fees under the Equal Access to Justice Act (EAJA) in successful mandamus cases. However, under the Supreme Court's decision Buckhannon Bd. & Care Home Inc., v. W. Va. Dep't of Health and Human Res., 532 U.S. 598 (2001), courts only award attorney's fees when there has been some sort of court order demonstrating that the plaintiff was the "prevailing party." This order could be a judgment in plaintiff's favor, or perhaps a settlement agreement or consent decree approved by the court. However, if the government takes the action prior to and in the absence of a court order, Buckhannon will preclude an award of attorney's fees to the plaintiff. Please see AILF's Practice Advisory, "Equal Access to Justice Act (EAJA) Fee Application," for a thorough explanation of Buckhannon and information about applying for attorney's fees under EAJA and earlier case law on this topic.

The following are recent mandamus cases where courts awarded fees:

• Lazli v. United States Citizenship & Immigration Servs., 2007 U.S. Dist. LEXIS 54444 (D. Or. July 25, 2007)
  • The court found that the defendants' failure to adjudicate plaintiff's I-751 and naturalization application was unreasonable and therefore the government's position was not "substantially justified."
  • The court also held that the matter required distinctive knowledge of immigration law and awarded fees at a rate in excess of the maximum EAJA rates.
  
  
• Elkhatib v. Bulger, No. 04-22407, 2006 U.S. Dist. LEXIS 60485 (S.D. Fla. 2006)
  • The court granted fees after plaintiff prevailed in a mandamus action to compel USCIS to adjudicate his Adjustment of Status Application (Form I-485).
  
  
• Aboushaban v. Mueller, No. 06-1280, 2007 U.S. Dist. LEXIS 15402 (N.D. Cal. 2006) <
  • The court granted fees to a prevailing plaintiff in a mandamus action where the court ordered USCIS to adjudicate plaintiff's Adjustment of Status Application (Form I-485).

The following are cases decided since 2006. Please see AILF's Practice Advisory, "Mandamus Actions: Avoiding Dismissal and Proving the Case," for earlier cases including relevant circuit court decisions. Note that sometimes, the filing of a mandamus action prompts the government to take whatever action is requested and the case is dismissed. In addition, the agency often takes the requested action if the plaintiff survives a motion to dismiss. As a result, in many successful cases, the court never issues a decision on the merits.

Favorable Decisions

District Courts

California

• Liu v. Chertoff, No. 06-2808, 2007 U.S. Dist. LEXIS 50173 (E.D. Cal. July 11, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Found delay unreasonable and remanded to agency to adjudicate application expeditiously
  • Application pending two and a half years at time of decision
  
  
• Okunev v. Chertoff, No. 07-00417, 2007 U.S. Dist. LEXIS 53161 (N.D. Cal. July 11, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Found delay unreasonable and denied government's motion to dismiss
  • Application pending three and a half years at time of decision
  
  
• Quan v. Chertoff, No. 06-7881, 2007 U.S. Dist. LEXIS 44081 (N.D. Cal. June 7, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Found delay unreasonable and denied government's motion to dismiss
  • Application pending two and a half years at time of decision
  
  
• Singh v. Still, No. 06-2458, 2007 U.S. Dist. LEXIS 16334 (N.D. Cal. January 8, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Found delay unreasonable and order agency to adjudicate application immediately
  • Applications pending more than seven years for one plaintiff and four years for the other at time of decision
  
  
• Aboushaban v. Mueller, No. 06-1280, 2006 U.S. Dist. LEXIS 81076 (N.D. Cal. October 24, 2006).
  • Found jurisdiction over mandamus suit on I-485 application
  • Found delay unreasonable and ordered agency to adjudicate application immediately
  • Application pending eight years at time of decision
  
  
• Razaq v. Poulos, No. 06-2461, 2001 U.S. Dist. LEXIS 770 (N.D. Cal. January 8, 2007).
  • Found jurisdiction over mandamus suit on I-130 application
  • Invited plaintiff to re-file motion for summary judgment if USCIS did not adjudicate application within 28 days
  • Application pending two years at time of decision
  
  

Connecticut

• Salehian v. Novak, No. 06-459, 2006 U.S. Dist. LEXIS 77028 (D. Conn. October 23, 2006).
  • Found jurisdiction over mandamus suit on I-485 application
  • Ordered agency to provide explanation for delay or adjudicate application within two months
  • Application pending more than two years at time of decision
  
  

District of Columbia

• Liu v. Novak, 509 F. Supp. 2d 1 (D.D.C. August 30, 2007).
  • Found jurisdiction over mandamus suit on I-485 application (no mandamus relief, but remedy available under APA)
  • Ordered agency to adjudicate application within three months
  • Application pending four years at time of decision

Florida

• Jones v. Gonzales, No. 07-20334, 2007 U.S. Dist. LEXIS 45012 (S.D. Fla. June 21, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Ordered agency to complete background checks and adjudicate application within a "reasonably prompt" time
  • Applications pending for two years and almost three years at time of decision
  
  
• Cacace v. Swacina, No. 07-20410, Order on Mot. to Dismiss (S.D. Fla. May 17, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Found delay unreasonable
  • Application pending three years
  
  
• Tjin-A-Tam v. United States Dep't of Homeland Sec., No. 05-23339, 2007 U.S. Dist. LEXIS 17994 (S.D. Fla. August 16, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Ordered agency to adjudicate application within 180 days
  • Application pending four years at time of decision

Massachusetts

• Yong Tang v. Chertoff, 493 F. Supp. 2d 148 (D. Mass. June 26, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Found delay unreasonable and ordered agency to adjudicate application within 40 days
  • Application pending four years at time of decision
  
  

Minnesota

• Haidari v. Frazier, No. 06-3215, 2006 U.S. Dist. LEXIS 89177 (D. Minn. December 8, 2006).
  • Found jurisdiction over mandamus suit on I-485 application
  • Ordered agency to adjudicate application within 30 days
  • Applications pending for four and six years at time of decision
  
  

Nebraska

• Li v. Chertoff, No. 07-50, 2007 U.S. Dist. LEXIS 53309 (D. Neb. June 19, 2007).
  • Found jurisdiction over mandamus suit on I-485 application (no mandamus relief, but remedy available under APA)
  • Ordered agency to adjudicate application within 30 days
  • Application pending two years at time of decision
  
  

New Hampshire

• Kuan Zhou v. FBI, No. 07-238, 2008 U.S. Dist. LEXIS 46186 (D.N.H. June 12, 2008)
  • Found jurisdiction over mandamus suit on I-485 application (no mandamus relief but remedy available under APA)
  • Found delay unreasonable and denied government's motion to dismiss
  • Application pending three years at time of decision
  
  

New Jersey

• Lei Xu v. Chertoff, No. 07-366, 2007 U.S. Dist. LEXIS 50027 (D.N.J. July 11, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Ordered agency to adjudicate application or provide satisfactory explanation for delay
  • Application pending more than two years at time of decision
  
  
• Pool v. Gonzales, No. 07-258, 2007 U.S. Dist. LEXIS 39946 (D.N.J. June 1, 2007).
  • Found jurisdiction over mandamus suit on I-485and I-130 applications
  • Denied government's motion to dismiss
  
  

New York

• Am. Acad. of Religion v. Chertoff, 463 F. Supp. 2d 400 (S.D.N.Y. June 23, 2006).
  • Found jurisdiction over mandamus suit on non-immigrant H1-B
  • Ordered agency to adjudicate application within 90 days
  • Application pending two years at time of decision
  
  

Pennsylvania

• Elhaouat v. Mueller, No. 07-632, 2007 U.S. Dist. LEXIS 58906 (E.D. Pa. August 13, 2007).
  • Found jurisdiction over mandamus suit on N-400 application (no mandamus relief, but remedy available under APA)
  • Denied government's motion to dismiss
  • Application pending three years at time of decision
  
  
• Ajmal v. Mueller, No. 07-206, 2007 U.S. Dist. LEXIS 52046 (E.D. Pa. July 17, 2007).
  • Found jurisdiction over mandamus suit on N-400 application
  • Denied government's motion to dismiss
  • Application pending nearly two years at time of decision
  
  
• Han Cao v. Upchurch, No. 07-1232, 2007 U.S. Dist. LEXIS 51477 (E.D. Pa. July 16, 2007).
  • Finding jurisdiction over mandamus suit on I-485 application
  • Ordered agency to adjudicate application within 30 days
  • Application pending four years at time of decision
  
  
• Hoyoung Song v. Klapakas, No. 06-05589, 2007 U.S. Dist. LEXIS 27203 (E.D. Pa. April 12, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Ordered agency to adjudicate application within 30 days
  • Application pending two years at time of decision
  
  
• Liu Duan v. Zamberry, No. 06-1351, 2007 U.S. Dist. LEXIS 12697 (W.D. Pa. February 23, 2007).
  • Found jurisdiction over mandamus suit on I-485 application
  • Denied government's motion to dismiss
  • Application pending sixteen months at time of decision
  
  

Texas

• Valenzuela v. Kehl, No. 05-1764, 2006 U.S. Dist. LEXIS 61054 (N.D. Tex. August 23, 2006).
  • Found jurisdiction over mandamus suit on I-130 application
  • Denied government's motion for summary judgment
  • Application pending six years at time of decision
  
  

Wisconsin

• Saleem v. Keisler, No. 06-712, 2007 U.S. Dist. LEXIS 80044 (W.D. Wis. October 26, 2007).
  • Found jurisdiction over mandamus suit on I-485 (no mandamus relief, but remedy available under APA)
  • Found delay unreasonable and ordered agency to adjudicate application within two months
  • Application pending five years at time of decision
  
  

Adverse Decisions

Courts of Appeals

• Castillo v. Ridge, 445 F.3d 1057 (8th Cir. April 21, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending eleven years at time of decision
  
  

District Courts

California

• Li v. Chertoff, No. 06-02625, 482 F. Supp. 2d 1172, (S.D. Cal. April 2, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending four years at time of decision
  
  

Florida

• Zahani v. Neufeld, No. 05-1857, 2006 U.S. Dist. LEXIS 56416 (M.D. Fla. June 26, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application but denied mandamus relief
  • Agency decisions whether or not to adjudicate are discretionary
  • Application pending three years at time of decision
  
  
• Gemini Realty, Inc. v. Gonzalez, No. 06-786, 2006 U.S. Dist. LEXIS 74194 (M.D. Fla. October 11, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-129 application
  • Agency decisions whether or not to adjudicate are discretionary
  • Application pending eight months at time of decision
  
  
• Grinberg v. Swacina, 2007 U.S. Dist. LEXIS 19684 (S.D. Fla. 2007), vacated, Order on Appellant's Mot. to Vacate Dist. Ct. Order (11th Cir. June 19, 2008).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending six years at time of decision
  
  

Illinois

• Sharif v. Chertoff, No. 07-1690, 2007 U.S. Dist. LEXIS 51701 (N.D. Ill. July 18, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on 129-F application
  • Timeframe of agency adjudication is discretionary
  • Application pending a year and a half at time of decision
  
  
• Guangming Liu v. Chertoff, No. 06-3297, 2007 U.S. Dist. LEXIS 29640 (C.D. Ill. April 23, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending three years at time of decision
  
  

Massachussetts

• Gebre v. Rice, 462 F. Supp. 2d 186 (D. Mass. November 21, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on diversity visa spouse application
  • Application pending four years at time of decision
  
  

Michigan

• Carter v. DHS, No. 07-12953, 2008 U.S. Dist. LEXIS 5049 (E.D. Mich. Jan. 24, 2008).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending a year and a half at time of decision
  
  

Minnesota

• Chaudry v. Chertoff, No. 06-1303, 2006 U.S. Dist. LEXIS 66842 (D. Minn. September 16, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending two years at time of decision
  
  

Missouri

• Yun Tan v. Chertoff, No. 07-236, 2007 U.S. Dist. LEXIS 47395 (E.D. Mo. June 29, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending four years at time of decision
  
  
• Jabr v. Chertoff, No. 06-543, 2006 U.S. Dist. LEXIS 84588 (E.D. Mo. November 21, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 and I-130 applications
  • Timeframe of agency adjudication is discretionary
  • Application pending three years at time of decision
  
  

Nebraska

• Narra v. Gonzalez, No. 06-3289, 2007 U.S. Dist. LEXIS 48725 (D. Neb. July 3, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending three years at time of decision
  
  

New Jersey

• Omar v. Mueller, No. 07-813, 2007 U.S. Dist. LEXIS 55290 (D.N.J. July 31, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on N-400 application
  • Application pending four years at time of decision
  
  
• Shah v. Chertoff, No. 07-874, 2007 U.S. Dist. LEXIS 51832 (D.N.J. July 18, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending two years at time of decision
  
  
• Mehta v. Thompson, No. 07-0667, 2007 U.S. Dist. LEXIS 37542 (D.N.J. May 23, 2007), appeal docketed, No. 07-2839 (3d Cir. June 18, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending for three years at time of decision
  
  
• Yanping Qiu v. Chertoff, No. 07-123, 486 F. Supp. 2d 412 (D.N.J. May 15, 2007).
  • Declined to decide whether mandamus jurisdiction available
  • Agency decisions whether or not to adjudicate are discretionary
  • Application pending more than three years at time of decision
  
  
• Ma v. Chertoff, No. 06-6177, 2007 U.S. Dist. LEXIS 34953 (D.N.J. May 11, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending four years at time of decision
  
  
• Feng Li v. Gonzalez, No. 06-5911, 2007 U.S. Dist. LEXIS 32608 (D.N.J. May 3, 2007), appeal docketed, No. 07-2990 (3d Cir. Aug. 28, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending three years at time of decision
  
  
• Serrano v. Quarantillo, No. 06-5221, 2007 U.S. Dist. LEXIS 26310 (D.N.J. April 9, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending three years at time of decision
  
  

New York

• Keane v. Chertoff, 419 F. Supp. 2d 597 (S.D.N.Y. March 13, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit to reschedule I-485 interview
  • Application pending six years at time of decision
  
  

Ohio

• Sinha v. Upchurch, 07-2274, 2007 U.S. Dist. LEXIS 90286 (N.D. Ohio Dec. 7, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on N-400 application
  • Application pending a year and a half at time of decision
  
  

Rhode Island

• Rogatch v. Chertoff, No. 06-541, 2007 U.S. Dist. LEXIS 28450 (D.R.I. April 17, 2007).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending three years at time of decision
  
  

Texas

• Maringo v. Gonzales, No. 06-3397, 2006 U.S. Dist. LEXIS 80106 (S.D. Tex. 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending five years at time of decision
  
  
• Martinez v. Chertoff, No. 06-27, (E.D. Tex. November 28, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  
  
• Mustafa v. Pasquerell, No. 05-658, 2006 U.S. Dist. LEXIS 8047 (W.D. Tex. January 10, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 and I-130 applications
  • Timeframe of agency adjudication is discretionary
  • Applications pending four years at time of decision
  
  
• Wilkinson-Okotie v. United States Dep't of Homeland Sec., No. 05-3978, 2006 U.S. Dist. LEXIS 69298 (S.D. Tex. September 26, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Application pending four years at time of decision
  
  

Virginia

• Safadi v. Howard, 466 F. Supp. 2d 696 (E.D. Va. December 20, 2006).
  • Dismissed for lack of jurisdiction over mandamus suit on I-485 application
  • Timeframe of agency adjudication is discretionary
  • Application pending four years at time of decision
  
  

AILF Practice Advisories

• Mandamus Jurisdiction Over Delayed Applications: Responding to the Government's Motion to Dismiss



• Mandamus Actions: Avoiding Dismissal and Proving the Case



• Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation



• Circumventing Naturalization Delays: How to Get Judicial Relief Under 8 USC 1447(b) for a Stalled Naturalization Application



• Equal Access to Justice Act (EAJA) Fee Application



• Immigration Lawsuits and the APA: The Basics of a District Court Action (May 9, 2007)

AILF Issue Pages

• Natz Delay Litigation

USCIS Memos

• USCIS Press Release Clarifying Criteria to Expedite FBI Name Check (February 20, 2007)



• Aytes Memo Re: FBI Name Checks Policy and Process Clarification for Domestic Operations (December 21, 2006)



• USCIS Notice Listing FBI Name Check Expedite Criteria (January 2005)

Reports

• The Federal Bureau of Investigation's Security Check Procedures for Immigration Applications and Petitions (U.S. DOJ OIG Audit Report June 2008)

Court Rules and Documents

• Court Rules: Each court provides the local and federal procedural rules.



• PACER (Public Access to Court Electronic Records): Provides docket information and documents filed in district court actions. Increasingly, district courts are posting pleadings on PACER.

Complaints

• AILA's Immigration Litigation Toolbox



• See also PACER for other additional complaints.



• R. Pauw, Litigating Immigration Cases in Federal Court (AILA 2007)

Additional Resources

• AILA’s Publications Page



• Ira J. Kurzban, Immigration Law and Sourcebook ( AILA 2006)