Joanna_Keyvan

So, we filed the writ of mandamus 2 weeks ago, and my husband got his visa today!

So, we filed the writ of mandamus 2 weeks ago, and my husband got his visa today!

To let everyone know, my attorney filed a writ of mandamus on 10/13/17 and my husband's visa was issued today (11/3/17). We had been in AP 8.5 months when we filed. We were at the embassy in Armenia.

So, we filed the writ of mandamus 2 weeks ago, and my husband got his visa today!

Without knowing all the details of the case or the cause for extended AP, suggesting a WoM seems premature. It's a last-ditch effort to force a decision, not to make the process faster. If the cause for delay is out of the hands of the officer (i.e. background checks), then the only decision they can make under the INA is to refuse the visa - not assume that the checks will come back clear. If the information they need to determine eligibility is within their possession and they're just delaying the decision in the individual's case (i.e. not just backlogs everybody sees), then it's another story. It's usually safer to wait than to force a decision and potentially have to start completely over (and wait through AP again).
 
I agree that they won't just deny for being "pissed off" or whatever...they are compelled by law to have a valid reason for ineligibility for the visa. They can also be compelled to make a decision.
WoMs against DOS are a completely different beast than against USCIS. There are certainly success cases, but it's few and far between that it is granted and results in an approval.

Did an attorney tell you that? I have spoken to 2 attorneys so far (we are at 8 months) and they both said it would be acceptable to file at 10 months.

Green Card Approved in 3 Days Following Writ of Mandamus Filing
(07/13/2009)
At the most recent National AILA Conference in Las Vegas, it was noted that a large number of cases have been held in the USCIS system for unreasonable lengths of time. While the FBI and the USCIS have worked together to speed up the background checks often causing the delays in adjudication, there are some cases that need an extra push. For those immigrants who are experiencing undue delay or inaction for adjustment of status and citizenship applications, a Writ of Mandamus (WOM) could be the defining factor in your case. YXZ (XYZ - I have deleted the initials and name of the law firm and any further references to law firm are edited and changed to XYZ).
For example, Dr. ****** contacted XYZ inquiring on our expertise for help in resolving an excessive USCIS delay in processing his application for adjustment of status to permanent resident.
December 2008: Co-Managing Attorney ********* met with Dr. ***** for a free evaluation. Since WOMs are very fact specific, Attorney ***** went through the facts of Dr. *******’s case very carefully and suggested that he had a very good cause for a WOM.
December 2008: Dr. ******* retained our services. His case was immediately assigned to Attorney ******** ******.
Dec. 2008 – May 2009
Over the course of the next 5 months, Attorney diligently used her resources to assist Dr. ******** in exhausting all of his administrative remedies to build up a strong case for his WOM. This included the following:
1. Exhausting all Administrative Remedies: Contacting USCIS, FBI, AILA, making InfoPass appointments for Dr.******* and contacting local US representatives and the US President to enlist their help.
2. Drafting a Court Brief: This includes research on case law for Dr. ******* regarding favorable courts for his specific case.
3. Sending a Demand Letter to necessary defendants allowing for a 30 day response time: It is vital at this point to list the proper defendants to the case, which include but are not limited to the US Attorney General, the FBI, the Director of the USCIS, the Secretary of the Department of State, etc…
May 1, 2009:
Attorney sent out the demand letter with a copy of her drafted court brief to all defendants;
June 1, 2009: Since no response was received, Attorney ******** filed a WOM for Dr. ******** in the relevant federal district court sympathetic to his case.
June 4, 2009
Only 3 days after filing the WOM, Attorney ********** received a phone call from both the US Department of State and the local USCIS field office informing her that Dr. ******** and his wife’s I-485 was approved and that the printing of their green cards had been requested.
June 24, 2009
Dr. ******* and his wife received their green cards in the mail.
This outcome was very fortunate as it has now enabled Dr. ******* to accept job offers that had been pending due to the delay in his green card adjudication. Our offices were extremely happy to have been able to help Dr. ******* and his wife achieve a positive result with speed. In her experience, Attorney ********** has noticed that often times the matter of delay is resolved before a full trial is entered into. As is evidenced with Dr. *******'s case, there are times where an excessive delay has left you little choice but to push the USCIS with a WOM. We encourage those of you who may be facing similar situations and who are interested in exploring possible solutions to contact us for a free evaluation.

Tang v Chertoff
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gertner/pdf/tangmtd.pdf
This is the case that was decided by Federal Judge Judge Gertner of MA.
In words of the Judge who granted petition in favor of Plaintiffs:
"I cannot accept the argument that, simply because adjustment of
status is a form of discretionary relief, there is no limit to
the length of time the USCIS may take processing applications.
The duty to act is no duty at all if the deadline is eternity."
There, you have it. Anyone with AOS pending beyond posted processing times, you don't have to wait for eternity to have your case adjudicated.
It is worth noting that back in the days (prior to 2008 USCIS memo) majority of delays were very extensive (beyond years) due to name cheks and background checks carried out by FBI (ISIS and FBI FP check gives instant results but name checks used to take much longer if there was any "hit", because a human personnel had to be assigned to the task of viewing the pertinent file and , moreover, because the task was under the control of a separate agency (Federal Bureau of Investigations) USCIS used to take a position that it had no control over it and it couldn't act unless it got clearance from relevant agency.
Now FBI cleared all backlogs per USCIS Congressional testimony (following the 2008 memo).
They also added staff to review relevant cases expeditiously (one of the reasons cited was National Security, to make sure that ineligible people don't enjoy prolonged stay , EAD and other benefits associated with pending AOS status).
Finally, in a very rare instances where FBI check for any reason is not cleared in 6 months USCIS is now told to make a decision and approve a petition when no adverse factors other than pending name check exist, with the reservation that if anything negative later turns up the benefit can be immediately revoked and individual apprehended.
Unlike N-400 case where a lengthy denationalization process must be undertaken if error made, LPR can be revoked relatively easy, therefore it is still mandatory for USCIS to wait for name check results in N-400 cases as opposed to AOS cases.
What this means for current AOS applicants?
First, you need not wait years to file a WOM. If your case pending past the deadline chances are that it is pending simply because the assigned IO is not working on your file. May be they process a hundred files a day but dropped yours behind the desk and never bother to look over, all the while they tell you with an air of importance that some serious work is being done in your case and you must wait.
Or it could be that your case is being delayed for no good reasons at all (somebody, may be a new hired officer , shipped your file to a different department within USCIS with a "gut feeling suspicion" that you are a ineligible for a benefit, and since you are neither and no data exists to support the "suspicion" nobody is willing to decide your case.
WOM will be of great help to you is above the case because the Court will ask USCIS to justify the reason why your case is still pending (in case if there is any legitimate reason, an increasing level of authority within USCIS must authorize delays in 6 months increments and it can only be authorized if there are valid grounds and this is the only valid reason government can present to court to refuse making a decision on your case.
In most of the cases it will not even reach a Court. You or your attorney can call US Attorney for the district where your petition will be filed and give the said Attorney a week to look into your case and make a decision or you tell them you will file WOM.
A week later if you get no response you do the actual filing. I will share here instructions on how to go about it.
Once filed Government will have 60 days to either make a decision or justify why it should be allowed not to decide your case yet. It must be legitimate , VALID reason, not just "We will work on it whenever".
In some cases Government Attorney will file affidavit to dismiss your WOM petition (need more time, to do specific tasks and etc).
You have to carefully read the government's request to see if the reason they provide is valid.
Remember: A complaint is subject to dismissal under Rule 12(b)(6) only
if“it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.”Gorski v. New Hampshire Dep’t of Corrections, 290 F.3d 466, 473
(1st Cir. 2002) (quoting Hishon v. King & Spaulding, 467 U.S. 69,
73 (1984)). The allegations in the complaint should be accepted
as true, and all reasonable inferences must be drawn in favor of
the plaintiff. Moss v. Camp Pemigewassett, Inc., 312 F.3d 503,
506 (1st Cir. 2002). ( see http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gertner/pdf/tangmtd.pdf )
The plaintiffs in Tang v Chertoff named 3 statutory bases for
jurisdiction:
The Mandamus statute (28 U.S.C. § 1361),
the Declaratory Judgment Act (28 U.S.C. § 2201 et seq.),
and the federal question statute (28 U.S.C. § 1331)
in combination with the Administrative Procedures Act (“APA”).
You should read carefully and do as much research as you can before filing or submitting anything to court. If you can afford it you would be better of to hire an attorney, but be very careful and thorough picking one if you end up hiring one.
Defendants in above case pointed to INA § 242 (8 U.S.C. §
1252(a)(2)), "which bars judicial review of certain actions on
which the Attorney General is given discretion under the INA."
You can counter that "while the final decision as to
adjustment of status is within the Attorney General’s discretion,
aspects of the process, such as the timing of these decisions,
are not".
Tang further argued that the Administrative Procedures Act
(specifically 5 U.S.C. § 555(b)) imposes a non-discretionary duty
to adjudicate applications in a reasonable time, and that review
of this duty is not barred by the INA’s jurisdiction-stripping
provision." ( http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=gertner/pdf/tangmtd.pdf )
What follows is the thorough analysis of relevant cases and jurisdictions of Courts vs AG in making a decision on a benefit granted on discretionary basis.
If you read the part VII. WHETHER THE DELAY IN THIS CASE IS UNREASONABLE, it looks like Judges decision may have influenced the 2008 memo (particularly about plaintiffs already living and working in US, the statutory provisions of law allowing for revocation of LPR and initiation of removal if necessary as a result of BG check results under U.S.C. §§ 1227(a)(1)(A) & 1256(a)., as well as "scarcity of resources" defense not being acceptable when coming from defendants as opposed to plaintiffs , all this that you can read in the ruling of Judge Gertner may have influenced the 2008 USCIS memo which effectively eliminated all FBI related backlogs.
I have not read all pages of the decision yet but will later (I just printed it out in its' entirety).
Another case referring to Tang v Chertoff (also involving the pending AOS case and reference to Tang v Chertoff) can be fond here: http://www.jdsupra.com/post/documentViewer.aspx?fid=21052340-1a3d-4973-98e5-ae0993ec5bd2
It's titled Mohamoud Abdi v Chertoff, Civil Action No. 08-11302-JLT
I will search more cases, particularly I will try to find newer AOS related WOM cases and see how these played out in post 2008 USCIS memo environment.
Hope many of you will find information posted here helpful and even useful if you plan to bring or just learned about possibility of bringing WOM for your pending AOS cases.
If enough of us bring and successfully argue such cases then chances are great that with more court rulings and precedents set the Government will address the issues that cause undue delays (comparing the costs of going to court and loosing the cases vs better training some of the lagging employees and making them feel more responsibility towards discharging their duties codified in law).
To be continued.

Hi there, I'm very sorry to hear that. How long have your parents been in the AP? It took them almost 11 months to complete our AP. We finally received our visa about 2 weeks ago. Good luck to you guys.