Why You Shouldn’t File A Mandamus Claim In A Mandamus Case

Attorneys love to call these cases “mandamus cases.”  But there should be no mandamus claim in your compliant.

Let me explain…

The mandamus statute says the following:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. 28 USC 1361

To succeed on a claim under this statute, you must show that the agency had a mandatory adjudication deadline, and the agency blew the deadline.

Unfortunately, very, very few immigration statutes have a “mandatory adjudication deadline.”

In other words, there are very few immigration benefits where the statute or regulation says “this must be decided within 30 days of filing or else.”

If that were the case, mandamus claims could be filed and successful on day 31 because the government blew its deadline.

Because there are no deadlines, these claims fail.

Enter the "Administrative Procedure Act" (the "APA")

Congress passed the APA in the 1930’s and expected some of its provisions to codify the common law writ for mandamus. Thus, the APA has a provision that allows litigants to sue for unlawfully withheld agency action or unreasonably delayed agency action. 5 USC 706(1).

The “unlawfully withheld” provision is in effect a replacement for the mandamus statute. And the “unreasonably delayed” provision is what “immigration mandamus” cases are actually reviewed under.

You do not have to have a mandatory timeline to succeed on an unreasonable delay case; rather, you need only show the adjudicatory wait time is unreasonable under all of the circumstances.

All of that said, courts consistently treat both Mandamus Statute Claims and APA Claims the same.

So, if that’s the case, why not include both?

Because there are no deadlines, these claims fail.

It is very easy for a government attorney to move to dismiss a mandamus claim solely to slow down your case. For a majority of delay cases, it is in fact legally inappropriate to bring both types of claims in a case.

The real reason you see attorneys add in as many claims as they can in a single complaint is because they are scared they will miss something and they lack experience and confidence.

In this case, more is not less because it gives the government an easy way to delay, delay, delay

So, Pro Se Pro’s complaints are purely under the APA because we do not want your case to be delayed.