Writ of Mandamus: Bringing Consular Officers into Compliance with Law

Written by: Taher Kameli, Esq.

More than a year has passed since Donald Trump imposed his inhumane immigration policy on people from Muslim-majority countries, leaving hundreds of visa applicants in a state of frustration and administrative limbo. Although the travel ban was to be reviewed every six months for the purposes of assessing its necessity, it has remained in effect indefinitely. Under such circumstances, nationals from countries subject to the travel ban find no option but to file a waiver request with the U.S. Consulate in hopes of reuniting with their beloved ones, and carrying forward their prospective endeavor in the United States.

The grant of a waiver is basically contingent upon a three-part test, the satisfaction of which should generally enable visa applicants to enter the United States. Under this three-prong test, applicants must show that the denial of entry would cause undue hardship, that their entry would be in the U.S. national interest and that their entry would not pose a threat to the national security or public safety of the United States. However, some consular officers considering the waiver requests have eschewed the guidelines and have denied visa applicants the opportunity to demonstrate their eligibility for a waiver. Unfortunately, the consular officers have, in many cases, failed to adjudicate the waiver requests in a timely manner which has in turn defeated the applicants’ purpose of travel.

In spite of being granted a wide margin of appreciation in deciding about applicants’ eligibility for a waiver, consular officers must ensure that the cases do not linger unattended. As a matter of fact, they are bound to make a timely decision as to the applicants’ eligibility or ineligibility for a waiver. If they fail to do so, a mechanism well-known as writ of mandamus comes to visa applicants’ assistance. Under the writ of mandamus mechanism, the federal court orders the consular officer to either issue or deny a U.S. visa to the foreign national. Please note that the writ of mandamus does guarantee the grant of a waiver from the presidential proclamation. It solely requires the consular officer to abide by its duties.

The petitions for writ of mandamus have proved to be successful in many cases, compelling the consular officer to announce its decision promptly. For instance, in a petition recently filed with the Northern District of California by an Iranian national against a consular officer, the Court ruled in favor of the Iranian national. The Court found the delay in making the final decision unreasonable, and thus, issued a writ of mandamus commanding the consular officer to adjudicate the waiver application by a specified date.

For further information on writ of mandamus and how to initiate the process, please do not hesitate to drop us a line at taher@kameli.com or 312.233.1000. Relying on the Law Offices of Kameli and Associates which is equipped with exemplary experience in filing writ of mandamus petitions, you can rest assured that your rights will be protected.