Article

Don’t be afraid of filing a mandamus — and know who your lawyer is working for

  • Written by GCBI Team Posted on December 4, 2020 | Updated on December 4, 2020 | 2 min read

Attorney and former USCIS adjudicator Steve Pazan has insight for investors who are afraid of invoking the ire of a judge or the immigration agency with a mandamus: don’t be. While some lawyers have told clients this might happen, Pazan declares investors won’t be “punished” by  USCIS for doing so. Pazan also says some lawyers advise against a mandamus because their loyalties may reside with the regional center that they also represent.

As a former USCIS adjudicator, Steve Pazan speaks from experience when talking about a writ of mandamus — a court order to compel an agency to perform an action (in the case of EB-5, an order to adjudicate a delayed petition).

Judges like ‘easy’ cases

However, as an attorney, Pazan has also seen a reluctance from investors to file a mandamus, out of fear of angering a judge, or USCIS, the agency who will adjudicate the petition. Pazan reminds us that judges are graded (just like adjudicators) on the amount of cases they handle — “and easy cases make good statistics.” Beyond this, he tells us that as judges are appointed for life, they don’t have political mandates to follow and will do the right thing. So fear not.

USCIS doesn’t get angry at investors who file a mandamus because the ‘world is watching’

The concern that the immigration agency will resent — and later punish — an investor who challenges a seemingly delayed adjudication in court is not a real one. Pazan states that they will not deny a petition or request additional evidence as a form of retaliation to such an investor: “The world is watching! Nobody at USCIS wants to be called before a US District Court Judge and sanctioned. They will try to get it right.”

In his decade of adjudicating EB-5 investor petitions at USCIS, Pazan has never witnessed a petition that was adjudicated spitefully.

Why some lawyers may discourage EB-5 clients from filing a mandamus: divided interests

As a lawyer and a former immigration agency adjudicator, Pazan has the experience to know that filing a writ of mandamus will not result in negative consequences, though he knows that some lawyers do counsel their clients not to do so. 

Unfortunately, declares Pazan, some of these lawyers aren’t working with their immigrant investor’s best interests as their top priority. He says that many EB-5 applicants ask the regional center or developer for a referral to an immigration lawyer — who will then recommend a lawyer who is more beholden to their interest  than the investor’s: “For that attorney, most of the time, an EB5 client is a one-time deal — a single customer. But the developer or Regional Center has an ongoing stream of business to send to the attorney. They may be working for someone else — and not for you.”

So, take it from an attorney who’s been there: don’t be afraid to pursue mandamus to resolve a delayed petition. And work with a lawyer who is not conflicted and is serving your best interests.

Read Pazan’s article “DON’T FEAR THE MANDAMUS!”