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After deciding to file a Mandamus action in order to compel the government to issue a decision on a long-delayed immigration application, the next major step is determining who to sue. In other words: who are the appropriate and essential defendants in such an action? This article will provide some guidance on how to answer this basic question and offer some useful advice and best practices in naming the appropriate defendants in a Mandamus case.
The obvious target of any Mandamus action is the U.S. government – the sole entity responsible for all immigration decisions. But simply naming as a defendant “The United States of America” or “President Joe Biden” is unlikely to work because the government generally – or even its chief executive – is not in charge of individual applications. In fact, doing so would be procedurally suspect and tactically unsound. Identifying who to name as a defendant in a Mandamus action requires applying litigation skills to the practice of immigration law.
While lawsuits are generally filed against two types of defendants – those responsible for the alleged wrongdoing and those capable of providing the relief sought – the defendant in a Mandamus action is simply the person or entity who has a specific duty to the plaintiff; i.e., the party who should make the decision – the “decision maker.” Accordingly, it is important to identify and name as a defendant all the officials, entities, executive departments and personnel (there are usually many) that are statutorily authorized, or may be lawfully empowered, to grant the requested relief. These potential defendants are principally drawn from the following three government agencies.
1) The Department of Homeland Security (DHS), lead by the Secretary of Homeland Security, houses Immigration and Customs Enforcement (ICE) (responsible for the detention and removal of non-citizens), U.S. Citizenship and Immigration Services (USCIS) (responsible for adjudications of applications for immigration and citizenship benefits), and Customs and Border Protection (CBP) (responsible for immigration and customs inspections and border patrol).
2) The Department of Justice, lead by the Attorney General, houses the Executive Office for Immigration Review (EOIR) (responsible for adjudicating immigration cases, which also includes the Board of Immigration Appeals (BIA) and the immigration courts), as well as the Federal Bureau of Investigations (FBI) and Federal Bureau of Prisons (FBP). The FBI or FBP and/or officers within these agencies might be named as defendants in cases involving delayed background checks or detention conditions, respectively.
3) The Department of State (DOS), lead by the Secretary of State, is responsible for foreign affairs, including visa issuance and also operates the National Visa Center (NVC). While the consular non-reviewability doctrine limits most lawsuits challenging visa denials, seeking to compel a decision by filing a Mandamus action is nevertheless valid. In doing so, the DOS and/or its officers might need to be named. Naming the relevant consulate and the officials involved in making the decision is also appropriate.
Selecting the appropriate defendant from these agencies depends on the type of immigration application filed, the benefit sought (i.e., the decision to be compelled) and, sometimes, the place where the application was filed or is pending. For example, an action to compel adjudication of an application for a benefit pending at a USCIS district office, should name as defendants the DHS Secretary, USCIS, the USCIS Director, and the USCIS District Director. An action that seeks the adjudication of an application for a benefit pending at a USCIS service center, should name as defendants the DHS Secretary, the USCIS, the USCIS Director, and the Service Center Director. An action seeking a decision on a consular visa should name the Secretary of State, the U.S. Consulate in the foreign city where the application was filed, the Consul General of the Consulate and even the official at the consulate before whom the application is pending.
Finally, where the identity of the government officer is not known at the time a suit is filed, the use of a fictitious “John Doe” or a “Jane Doe” would be prudent. This is critical because one argument the government may use to defeat a Mandamus action is the failure to name essential parties, such as the appropriate agency or personnel involved. Identifying the appropriate department, sub-agency and individual decision-maker (even if using a Doe place-holder) will help ensure the claim’s viability and the defeat of any dismissal effort.
A Mandamus action is a powerful and effective tool in compelling a long-delayed immigration decision. It is critical to know how – and against whom – to wield it.
