Writ of Mandamus

[Dette]

Has anyone here filed or knows of anyone who has successfully filed a writ of Mandamus against the Immigration authorities?

[InnVic]

No but perhaps we should consider a "class action"!
(Wikipedia have a good definition http://en.wikipedia.org/wiki/Mandamus )

[peter gold]

Mandamus against the Feds Big $$$$$$$$$$$$ if you lose

[byjove]

Well! then we all just bugger off back to blighty then! hehehehehehehe

[kirtida8]

I think if things keep going the way they are - there may well be a "class" action. Have you talked to Susie? I'm sure she could advise you on that point Dette.

[Ray10]

Class action would be difficult because of the individual nature of a writ of mandamus.

Has been sucessful though for Citizenship cases

[Dette]

I was reading on the immigration portal board that several people have had success shortly after threatening a writ. I think it may be worth a try.

Their class action was thrown out though.

[Bobby]

"The applicant pleading for the writ of mandamus to be enforced should be able to show that he has a legal right to compel the respondent (http://en.wikipedia.org/wiki/Respondent) to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:[3] (http://en.wikipedia.org/wiki/Mandamus#_note-2)

It must be a duty (http://en.wikipedia.org/w/index.php?title=Legal_duty&action=edit) of public nature
The duty must be imperative and should not be discretionary (http://en.wiktionary.org/wiki/discretionary). "
Quoted from the Wikipedia definition.

Now, ...I'm no lawyer but I thought that the judgment of ALL immigration cases was "discretionary". no ????

Bobby

[Bayfield]

I know that to let someone in as a Visitor is Discretionary.

But I believe that Naturalisation etc is not, you qualify or you do not. There migh be some subjectivity.

The Mandamus I have read about all seemed related to security checks, or that is how the local paper described them.

[peter gold]

A writ of mandamus is a perogative writ to direct someone to do something they are obliged to do. eg issue a visa when ALL criteria have been met.
I just came across a living example minutes ago.
A Brit had married an American (via a K fiance visa), secured a conditional green card applied for the removal of the condittion and 39 months later no green card. Lost in the system. This is when we use manadamus and the card is quickly issued!!
Bobby is right mandamus should not be used to enforce the grant of a discretionary based visa.

[byjove]

Would this cover Anniefromessex and her son, daughter-in-law?

[peter gold]

Afraid not as they have no absolute right to their visa. They failed to dislcose a previous visa refusal when they went for a visa waiver, and that is an absolute bar

[Munish]

Where someone does have discretion, they can only apply discretion within the powers granted to them. If a person makes a decision beyond that permitted by law (sometimes referred to as "ultra vires") or misintreprets the law in applying their discretion, there might be a possibililty of obtaining a writ of mandamus or some other action.

If discretion has been applied as permitted, you're running a high risk strategy. However, in this scenario, I do recommend seeking legal advice from an experienced immigration attorney with this type of litigation experience. If pursuing such a course of action would end in failure a few hundred dollars getting the advice confirming that would be well spent. On the other hand the same money spent confirming you would have a course of action would then seem worthwhile.

[Bobby]

Yep, I agree with that Munish,

....but from the stories so far on this forum, since I joined, and have participated in, deciphering how and why most people have been denied, at whatever level they were at, it has become clear that there has been a mistake somewhere along the process, either by themselves or their immigration attorney.

There are many cases that we hear about that "don't seem fair" ....but when it gets down to the nitty gritty, those personnel who had the file in front of them at the Embassy or Service Center "had to" deny them.

Bobby

[Munish]

....but from the stories so far on this forum, since I joined, and have participated in, deciphering how and why most people have been denied, at whatever level they were at, it has become clear that there has been a mistake somewhere along the process, either by themselves or their immigration attorney

That is what I seem to have gauged from all (if not the large majority of) stories I have come across as well. My point was just general information so people understand the limits of the discretion argument against possible legal action.

A practical approach has to be taken, For some that might mean Federal legal action, for others (including me for the moment) it might mean something else.

[Bayfield]

Afraid not as they have no absolute right to their visa. They failed to dislcose a previous visa refusal when they went for a visa waiver, and that is an absolute bar

I did not know that, I thought there chances were slim on the basis of everything else.

Not that Mandamus wold be relevant, I believe only a USC can claim a right of entry, and I seem to remember one of them having a problem recently.

[byjove]

Must admit i thought it was because of the same reason bayfield gave about everything else for annie.

[Susie]

Well put Peter Bobby and Mun


In cases of issuing writs it is advisable to get attorneys opinion first to see what the chance of sucess would be and get then to file for you.

[Dette]

We are actively following this line of procedure. Filing a WOM works sometimes and not others. It really depends on the judge and the circumstances. It seems that to be successful you should have no other recourse than to sue - the thing is that your actual recourse is just to wait, simply not good enough.

We have written to the USCIS asking them to expedite our case. We meet several of the criteria they use to expedite , not least the fact that our daughter will age out in April. So we will see what happens there.

If we do not get any response from them this time we will see a lawyer about filing a WOM.

[anniefromessex]

Would love to know Bayfield why you thought my sons chances were slim "in view of everything else". It is like a red rag to a bull to me at the moment to be honest with you, you have absolutely no idea what my family have gone through in respect of trying to get a Visa to this country LEGALLY!!! If it wasn't for the likes of Doug Hall I am sure he would be here now and an asset to this country, instead it is America's loss and England's gain!!

Enough said.
Annie

[Bayfield]

I applied for a B2, did not get it.

I did use the VWP, so I know about disclosing the refused visa.

I have not gone back and read all your posts, and I admit I am making assumptions, nature of this format.

Assuming your son is of working age, and with 2 weeks being accepted as normal holiday here, and from how you described them having their main home in the US, can not remember now if they also had a house in the UK, I think not, coupled with many visits, sooner or later you are going to get pulled.

A good friend of mine had effectively been doing that for many years, he had obtained a B2 when it was easy to do so. B2 coming up for renewal, knew he would never be able to cover his tracks so easily on the VWP and anyway I think the stress of each entry was getting to him, so sold up and left.

[Susie]

A writ of mandamus is a perogative writ to direct someone to do something they are obliged to do. eg issue a visa when ALL criteria have been met.
I just came across a living example minutes ago.
A Brit had married an American (via a K fiance visa), secured a conditional green card applied for the removal of the condittion and 39 months later no green card. Lost in the system. This is when we use manadamus and the card is quickly issued!!
Bobby is right mandamus should not be used to enforce the grant of a discretionary based visa.

Hi

Peter is correct, its to compel the USCIS to adjudicate a case and the threat of doing this it is sometimes enough to knee jerk them into processing the case

If your on a low income or it is to do with family reunification then contact www.cliniclegal.org they are a not for profit group with over 600 lawyers to assist in difficult cases.

You do not have to be catholic for them to assist you and fees are highly reduced