During this time, the Assistant United States Attorney (AUSAs)
will consult with its client, USCIS, to determine the defendants’
strategy in the suit. Many times – but certainly not every time or
perhaps not even most times – USCIS will decide to adjudicate
the case rather than pursue a vigorous defense in court. It may
therefore be possible to negotiate timeframes for adjudication
without motions practice, discovery, or trial if both parties are
in agreement that USCIS can adjudicate the case. Indeed,
while adversarial, litigation against the
government need not necessarily be
That being said, mandamus is not premium processing.
Plaintiffs are not guaranteed adjudications within certain
timeframes by simply filing suit. AUSAs need not be aligned
with plaintiffs and will often fully defend mandamus actions.
While AUSAs could theoretically answer the allegations of a
complaint on their merits, such answers are (at least now)
extremely rare in immigration mandamus actions. What is far
more common is for the AUSA to file a motion to get the case
out of the court. These motions can be
procedural (for example, a motion to
transfer a case to a different venue or
to sever the plaintiffs) or dispositive.
"Indeed, while adversarial,
litigation against the
government need not
necessarily be hostile"
Most clients are concerned about
retaliation. Specifically, they raise
c o n c e r n s t h a t t h e f i l i n g of t h e
complaint will provoke a summary
denial of the petition, or perhaps
revocation of an underlying visa such
as an H-1B. While such retaliation may
theoretically be possible, it is unlikely to occur and virtually
no attorneys have experienced it despite representing over
hundreds of clients in EB-5 related mandamus. Spuriously
denying a case could provoke sanctions against government
officials, including recoupment of attorney’s fees and costs.
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Dispositive motions usually take the
form of being filed under Federal Rule
12(b)(6), which seeks dismissal for an
alleged failure of the complaint to state
a claim on which relief can be granted.
In other words, the government argues
that even if the court were to assume every fact alleged in the
complaint is 100% correct, and all the inferences from those
facts can be drawn in favor of the plaintiffs, the court still
cannot order the petitions to be adjudicated because it is legally
prohibited from doing so.