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EXTRAORDINARY WRITS AVAILABLE FROM THE UNITED STATES COURTS Background Under the authority of the United States Constitution, Statutes of the United States, and federal case decisions, the United States District Courts are empowered to grant certain writs in aid of the citizen in matters involving the United States Government, and by reason of the Fourteenth Amendment, with the several states. Among these writs are the Writ of Mandamus, Writ of Habeas Corpus, and the Writ of Coram Nobis. For immigration purposes, these "extraordinary" writs must be applied for in an appropriate United States District Court and the lawsuit will name an appropriate government officer as the defendant. The Writ of Mandamus The Writ of Mandamus, meaning "we command" in Latin, can be traced back to one of the ancient "prerogative writs" of the common law. In the United States today, while it appears that the authority of the United States District Courts to issue mandamus has been limited by Rule 81(b) of the Federal Rules of Civil Procedure, in immigration practice, certain relief in the nature of mandamus can be reached by other avenues provided for in the Rules, and where provided by statute, or by resort to the District Court's equitable powers. More important, the United States Supreme Court has upheld the power of the District Courts to grant Mandamus under the proper circumstances. Because of Rule 81(b), an application or complaint for a Writ of Mandamus must be carefully pleaded and prosecuted. It can be sought to compel an immigration agency to complete an administrative or ministerial duty which it is bound to discharge under law when it can be shown that the immigrant has a clear right to the agency performance so requested, and that there is no other remedy that is adequate. As a practical matter, the filing for a Writ of Mandamus has the effect of gaining the attention the U. S. Department of Justice where the case will be reviewed by the United States attorney or his or her designee. It is likely that the District Court will grant jurisdiction notwithstanding the efforts of the Government's to dismiss on jurisdictional grounds. The likely end result is the timely completion of the processing by immigration agency and the issuance of the documents sought by the immigrant. Thus a Writ of Mandamus should be considered to end the agency delays in processing N-400s, I-485s (with approved I-130s, I-140s, I-360s or other petitions), and the I-130s themselves. It may be useful when a person is facing long delays because of FBI background name checks. WANGLAW has successfully filed for Writs of Mandamus on behalf of clients and has obtained favorable results from USCIS and effective consideration by the United States District Court. For an example of a written decision, click here. In this case, the District Court overruled the Motion to Dismiss, granted jurisdiction and remanded the matter to the USCIS with specific instruction to the immigration agency to act as expeditiously as is practical. The immediate result was the background check was promptly completed and the applicant for naturalization was sworn in as a United States Citizen on an expedited schedule (without waiting for monthly naturalization oath ceremony), WANGLAW also has experience litigating for Mandamus based on the Code of Federal Regulation. The Writ of Habeas Corpus The Writ of Habeas Corpus, also called "The Great Writ," can be traced to the common law of England. Thought to already exist before the Magna Carta of 1215, this extraordinary writ was a guarantee of individual freedom against arbitrary official action, in particular, detention or imprisonment without lawful reason. Today, in the United States, such an application normally is filed in an appropriate United States District Court. Indeed the Great Writ enjoys Constitutional stature for Article I , Section 9 of the United States Constitution provides that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the pubic safety may require it." This is also known as the Suspension Clause and because it is written into Article I, it is also understood that the Great Writ may only be suspended by the United States Congress and not by the Executive. While the Suspension Clause and the habeas corpus it protects may pertain only to detention by the Federal Government, Congress has authorized the Federal judiciary the power to direct Writs of Habeas Corpus at any government authority. When issued, it takes the form of a judicial order commanding the custodian of the prisoner to bring forth the person out of detention and into court for the purpose of establishing the reasons for his or her loss of liberty. The availability of habeas corpus has been reviewed in the context of the War on Terror and corresponding restrictive legislation by Congress - presently, the United States Supreme Court has upheld the availability of habeas corpus from the Federal judiciary. Accordingly, and because the Federal Courts are regularly open across the United States, the Great Writ can be expected to remain available to an immigrant detainee who has been arrested inside the United States for the purpose of challenging an unauthorized detention by immigration authorities. To reiterate, during the last decade, because of the operation of the detention facility at Guantanamo Bay, the U. S. Supreme Court through a series of landmark decisions has reaffirmed federal Habeas Corpus jurisdiction and the availability of the Great Writ to non-citizens. Ironically, Habeas Corpus in Latin means "You may have the body." The Writ of Coram Nobis The Writ of Coram Nobis is of special interest in the immigration context as it was used to overturn the criminal conviction of Fred Korematsu under Executive Order 9066 which sought to place Japanese Americans into internment camps during World War II. In 1984, a U. S, District Court judge granted a Writ of Coram Nobis, overturning the conviction of Mr. Korematsu for violating the internment order. Coram Nobis Latin for "things which remain in our presence," is a legal writ issued by a court to correct a previous error "of the most fundamental character" to "achieve justice" where "no other remedy" is available. Historically, a petition for writ of error coram nobis is generally brought before the trial court, while a petition for writ of error coram vobis is brought before an appellate court. These truly seldom used writs can be differentiated from Writ of Habeas Corpus in that they do not have a detention or custody requirement. A limitation on the availability of this ancient writ is that Rule 60(e) of the Federal Rules of Civil Procedure, has abolished the writ of coram nobis in civil cases, but the United States Supreme Court has affirmed the availability of coram nobis in federal court for criminal cases, Caveat /Disclaimer: U.S. immigration statutes, regulations and interpretations of these and other federal, state and local law are subject to change and timely, competent counsel from a qualified legal professional on current and applicable law to particular facts is indispensable. This website provides information of a general nature and such information cannot pertain to any specific set of facts, and the provision of information cannot create any attorney-client relationship. For any particular situation, the visitor should obtain counsel from a qualified legal professional. The publisher reserves the right to amend the contents of this website at any time and for any reason. This website is an ADVERTISEMENT. |
| Remember, remember always, that all of us ... are descended from immigrants and revolutionists. -=Franklin D. Roosevelt before the Daughters of the American Revolution=- We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. . -=The Declaration of Independence of the Thirteen Colonies=- ... He has largely population by emancipation population by emancipation and by immigration, while he has opened to us new sources of wealth, and has crowned the labor of our working-men in every department of industry with abundant rewards. abundant rewards. -=President Abraham Lincoln's 1864 Thanksgiving Proclamation=- One more Quote for those inclined: O, wonder! How many goodly creatures are there here! How beauteous mankind is! O brave new world, That has such people in't! "ENGLISH IS SPOKEN HERE" AT WANGLAW USA |
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