Law Offices of Nicklaus Misiti explains filing Writ of Mandamus in Adam Walsh Act immigration cases

NEW YORK - Oct. 10, 2013 - PRLog -- The Adam Walsh Act (“AWA”) has created a frustrating legal hurdle for some individuals who wish to file a immigration petition for their immediate relative.

The AWA bars individuals convicted of a “specified offense” involving a minor from filing an immigration petition.  The only way around this bar is to file for a waiver.

Many individuals have filed these requests and in some cases waited years without a response from US Citizenship and Immigration Services (“USCIS”).  Still others have had denials overturned by the Board of Immigration Appeals (“BIA”) and remanded to USCIS.  In a great number of these remanded cases USCIS fails to address the BIA decision and/or to make a decision in a reasonable amount of time.

One possible solution to this problem is to file a writ of mandamus in Federal court.   A writ of mandamus is a powerful tool in dealing with delays in immigration processing.  The successful mandamus petition results in a Federal Judge ordering that USCIS decide an application within a certain amount of time.  Often simply filing the mandamus results in a decision on the because USCIS does not want to deal with costly litigation or the threat of losing a Federal Lawsuit and being forced to pay attorney fees.  Of course each case is different so this is not always the case.

A mandamus does not result in a judicial order that the petition be approved, rather it simply orders and approval or denial within a certain amount of time.  However, if the petition is denied in certain cases it can be requested the federal court retain jurisdiction and the claim can be amended to an Administrative Procedures Act (“APA”) challenging the legality of the decision.

For more information on filing a mandamus action for a pending immigration case contact Law Offices of Nicklaus Misiti at 212 537 4407 or visit their website at www.misitiglobal.com.