October 16, 2007

Increasing Success in Naturalization Mandamus Cases

Mandamus Actions in federal court are becoming an increasingly viable option for individuals who have had applications pending with the U.S. Customs and Immigration Service (USCIS) for an unreasonable period of time. A mandamus action occurs when a plaintiff asks the court to order a specific action to be taken by a defendant. In the immigration context, this normally consists of asking the federal court to order USCIS to process an application which has been delayed or caught up in the “name check” process conducted by the FBI. Currently, there are hundreds of thousands of immigration applications delayed in the FBI name check or background check programs, many of which have been pending for several years.

District courts nationwide have experienced a drastic increase in mandamus actions mostly due to increased security measures after September 11 and a lack of manpower to complete the requisite checks. Notably, this September, the Fifth Circuit granted a petition for rehearing and reversed itself in Walji v. Gonzales. In Walji, the plaintiff was a lawful permanent resident who had applied to naturalize and become a U.S. Citizen. Originally from Uganda, and a citizen of Canada, Mr. Walji applied for naturalization in 2003. He passed the English and civics test and has his interview in 2004. However, he had been waiting years to be declared a U.S. Citizen because he was told that the FBI was still conducting his background checks.

The law states that USCIS is given 120 days after the date on which USCIS conducts the “examination” of the applicant to make a decision. In June, the court in Walji decided that the 120-day period began on the day that Mr. Walji’s background checks were completed by the FBI and, therefore, there was nothing that could be done in his case. However, in a rare decision and turnabout, the same court granted a motion for rehearing and issued a new opinion. This new opinion issued on September 14, 2007, concludes that the legislative intent and history of the statute indicate that “examination” means the naturalization interview and not the date that the background checks are complete.

This turnabout means that many individuals who have had naturalization interviews, but who have been waiting more than six months for a determination on their application for naturalization have the option of filing mandamus relief and ask that USCIS complete the background check and finalize the processing their application. In some cases, depending on the action or inaction taken by USCIS and if there is enough evidence to conclude that the individual is eligible for citizenship, the federal judge may opt to swear in the individual as a U.S. Citizen instead of ordering USCIS to act on the naturalization application. Once such swearing in just took place in the District of Massachusetts in Dayisty v. Chertoff on October 9 after USCIS had failed to make a determination on an applicant’s naturalization application.

Click here to read Dayisty v. Chertoff

By Michelle Richart