EXTRAORDINARY WRITS AVAILABLE FROM
THE UNITED STATES COURTS
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 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.
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