Understanding the government's playbook helps petitioners draft a stronger initial complaint.
The government's litigation position in immigration mandamus cases has become fairly standardized over time. Anticipating these arguments allows petitioners to address them proactively in the initial filing.
The discretionary function argument
The government frequently argues that the pace and sequencing of adjudications is itself a discretionary agency function, and that courts should not second-guess how USCIS allocates its resources among competing cases.
The security and background check argument
In many cases, the government attributes delay to pending background or security checks involving other agencies, arguing the delay is reasonable given the sensitive and time-consuming nature of that process — sometimes without disclosing case-specific detail.
The TRAC-factors-favor-the-government argument
The government often argues that ordering expedited adjudication in one case necessarily displaces another similarly situated applicant, invoking the "competing priorities" TRAC factor detailed in Understanding the TRAC Factors in Immigration Delay Cases.
The mootness argument
If the case is adjudicated shortly after filing, the government commonly moves to dismiss on mootness grounds, arguing there is no longer a live controversy for the court to resolve.
How strong petitions preempt these defenses
Effective petitions address these anticipated defenses directly — documenting the specific ministerial nature of the duty to adjudicate (not to approve), citing published processing time data, and clearly establishing the individualized harm caused by the delay rather than relying on generalized frustration with the pace of government processing.
The order in which the motions arrive
Under Fed. R. Civ. P. 12(a)(2), the United States, a United States agency, or an officer or employee sued only in an official capacity must serve an answer within 60 days after service on the United States attorney. Extensions of that period are commonly requested and commonly granted, so the first substantive filing may land well after the sixtieth day.
What arrives is usually a single motion combining two rules, and the difference between them decides what the court may look at.
- Rule 12(b)(1) — no jurisdiction. The supporting grounds are that no discrete, legally required action is being withheld under Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004); that the action is committed to agency discretion by law under 5 U.S.C. § 701(a)(2); and that 8 U.S.C. § 1252(a)(2)(B) bars review, a provision whose opening words expressly reach 28 U.S.C. §§ 1361 and 1651.
- Rule 12(b)(6) — the delay is not unreasonable on the face of the complaint. This is where the six TRAC considerations are argued.
On the jurisdictional branch a court may consider material outside the pleadings, so declarations about processing volumes and case status can be weighed before any discovery has occurred.
Reading the processing-time exhibit the government files
The declaration attached to the motion almost always includes the posted processing time for the form and office. Knowing what that figure measures is what allows it to be answered. USCIS publishes a range drawn from recently completed cases: the lower figure is the time within which half of those cases were adjudicated, and the upper figure the time within which 93 percent were. The case inquiry date shown alongside it is derived from the upper figure and marks the point at which an applicant may submit a service request for a case outside normal processing time.
Neither figure is a deadline, and neither is a promise. What the range does establish is a distribution the agency itself publishes. A file still inside the range is, on the agency's own measure, ordinary. A file substantially beyond the 93rd-percentile figure is, on the same measure, an outlier, and that is the proposition the exhibit actually supports. The figures are revised periodically, so the version in evidence should be dated.
Arguments that carry less weight than they sound
Not every defense in the standard motion is strong, and a response that treats them as equally weighty concedes ground it does not have to.
- Sovereign immunity. 5 U.S.C. § 702 waives immunity for actions seeking relief other than money damages against an agency or an officer acting in an official capacity, which covers an order to adjudicate.
- No private right of action under 8 U.S.C. § 1571. Correct, and beside the point. The claim rests on 28 U.S.C. § 1361 and 5 U.S.C. §§ 555(b) and 706(1); § 1571(b) is evidence of the objective Congress set, not the cause of action.
- Failure to use the service channels. No statute conditions these claims on exhausting inquiry procedures. An unfiled service request goes to diligence and to the equities, not to jurisdiction.
- Enforcement discretion. Heckler v. Chaney, 470 U.S. 821 (1985), concerns an agency's refusal to bring an enforcement action. A pending application the agency is required to decide is a different posture.
Key points
- Fed. R. Civ. P. 12(a)(2) gives the United States 60 days to answer after service on the United States attorney, and extensions are routine.
- A Rule 12(b)(1) motion lets the court weigh declarations outside the pleadings, which is why the jurisdictional branch is argued first.
- USCIS posted processing times give the 50th and 93rd percentile of recently completed cases; the case inquiry date is derived from the upper figure.
- Sovereign immunity is waived by 5 U.S.C. § 702 for relief other than money damages, so that defense rarely decides a delay case.
- The absence of a private right of action in 8 U.S.C. § 1571 is irrelevant where the claim is pleaded under 28 U.S.C. § 1361 and 5 U.S.C. §§ 555(b) and 706(1).