Singh v. Bardini ( 2023 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 HARMINDER SINGH, No. 2:22-CV-01027-JAM-DB 9 Plaintiff, 10 v. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS 11 EMILIA BARDINI, Director San Francisco Asylum Office; 12 ALEJANDRO MAYORKAS, USDHS Secretary; MERRICK GARLAND, U.S. 13 Attorney General; DOES 1 to 50, 14 Defendants. 15 16 Plaintiff, Harminder Singh (“Plaintiff”), brings this 17 complaint for a writ of mandamus against: (1) Emilia Bardini, 18 Director of the San Francisco Asylum Office; (2) Alejandro 19 Mayorkas, Secretary of the United States Department of Homeland 20 Security; (3) Merrick Garland, Attorney General of the United 21 States; and (4) various fictious persons (collectively 22 “Defendants”). See generally Compl., ECF No. 1. Plaintiff filed 23 this action under the Mandamus Act, 8 U.S.C. § 1361, and the 24 Administrative Procedure Act (“APA”), 5 U.S.C. § 701, to compel 25 Defendants to act on his I-589 Application for Asylum (“I-589”) 26 by scheduling his interview with the United States Citizenship 27 and Immigration Services (“USCIS”). Defendants move to dismiss 28 Plaintiff’s claims. See generally, Mot. to Dismiss (“Mot.”), ECF 1 No. 21. Plaintiff failed to file an opposition. As a result, 2 Defendants filed a reply asking the Court to treat Plaintiff’s 3 lack of response as a non-opposition pursuant to Local Rule 4 230(c). See Reply, ECF No. 23; see also E.D. Cal. Local Rule 5 230(c).1 6 For the reasons set forth below, the Court GRANTS 7 Defendants’ motion WITHOUT PREJUDICE. 8 I. BACKGROUND 9 Plaintiff entered the United States on or about December 14, 10 2018, at or near Otay Mesa, California as an unaccompanied child 11 (“UAC”). See Compl. ¶ 7. On March 15, 2019, Plaintiff submitted 12 an I-589 to the USCIS Nebraska Service Center. See Id. ¶ 9. On 13 April 9, 2019, Plaintiff received an Acknowledgment Notice from 14 the San Francisco Asylum Office (“SFAO”). See Id. ¶ 10. On 15 March 15, 2021, Plaintiff informed the SFAO his application 16 involved an UAC. See Id. ¶ 11. On May 18, 2021, Plaintiff’s 17 counsel sent correspondence to the SFAO requesting the issuance 18 of an interview scheduling notice. See Id. ¶ 12. Such a notice 19 has yet to be issued. See Id. 20 Plaintiff then filed this suit on June 13, 2022. See 21 generally Id. Defendants now move to dismiss Plaintiff’s claim 22 pursuant to Fed. R. Civ. P. 12(b)(6). As noted above, Plaintiff 23 did not file an opposition to this motion. See generally Mot. 24 In their reply brief, Defendants ask the Court to construe 25 Plaintiff’s failure to respond as a non-opposition pursuant to 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for June 6, 2023. 1 Local Rule 230(c). See E.D. Cal. Local Rule 230(c) (“A failure 2 to file a timely opposition may . . . be construed by the Court 3 as a non-opposition to the motion.”). Although Defendants’ 4 request is appropriate under Local Rule 230(c), the Court 5 exercises its discretion to proceed on the merits of Plaintiff’s 6 claims. 7 II. OPINION 8 A. Legal Standard 9 When weighing a motion to dismiss, courts “accept factual 10 allegations in the complaint as true and construe the pleadings 11 in the light most favorable to the nonmoving party.” Manzarek v. 12 St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 13 2008). However, “a complaint must contain sufficient factual 14 matter, accepted as true, to ‘state a claim to relief that is 15 plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 16 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 17 1974 (2007)). Facial plausibility exists when “the plaintiff 18 pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the 20 misconduct alleged.” Id. However, “a formulaic recitation of a 21 cause of action's elements will not do.” Twombly, 127 S. Ct. at 22 1965. Such statements are “legal conclusion[s] couched as 23 factual allegation[s]” that must be dismissed. Papasan v. 24 Allain, 106 S. Ct. 2932, 2944 (1986). 25 B. Analysis 26 The Mandamus Act allows the Court to “compel an officer or 27 employee of the United States or any agency thereof to perform a 28 duty owed to the plaintiff.” 28 U.S.C. § 1361. Such relief is 1 available when: “(1) the individual's claim is clear and certain; 2 (2) the official's duty is nondiscretionary, ministerial, and so 3 plainly prescribed as to be free from doubt, and (3) no other 4 adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 5 (9th Cir. 1997). Importantly, a petition compelling an agency to 6 execute nondiscretionary duties seeks the same relief afforded by 7 the APA. See R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 8 (9th Cir. 1997) (recognizing “mandamus relief and relief under 9 the APA are ‘in essence’ the same . . . .”). In turn, courts can 10 analyze a mandamus claim through an APA framework if the APA 11 provides an adequate remedy. See Id. Here, Plaintiff seeks the 12 same outcome under both statutes: for this Court to compel 13 Defendants to schedule his I-589 interview. See Compl. ¶ 16. 14 Because Plaintiff’s desired outcome under the APA and Mandamus 15 Act are the same, the Court finds that the former provides an 16 adequate remedy for all of Plaintiff’s claims and employs an APA 17 analysis accordingly. 18 The APA requires administrative agencies to adjudicate 19 “matter[s] presented to [them]” within a “reasonable time.” 5 20 U.S.C. § 555(b). When an agency fails to execute this duty, a 21 “reviewing court shall . . . compel agency action unlawfully 22 withheld or unreasonably delayed.” 5 U.S.C. § 706(1). To 23 evaluate whether such a delay is unreasonable, Ninth Circuit 24 courts employ the following TRAC factors: 25 (1) the time agencies take to make decisions must be 26 governed by a rule of reason; 27 (2) where Congress has provided a timetable or other 28 indication of the speed with which it expects the agency to 1 proceed in the enabling statute, that statutory scheme may 2 supply content for this rule of reason; 3 (3) delays that might be reasonable in the sphere of 4 economic regulation are less tolerable when human health and 5 welfare are at stake; 6 (4) the court should consider the effect of expediting 7 delayed action on agency activities of a higher or competing 8 priority; 9 (5) the court should also take into account the nature and 10 extent of the interests prejudiced by delay; and 11 (6) the court need not find any impropriety lurking behind 12 agency lassitude in order to hold that agency action is 13 unreasonably delayed. 14 In re Pesticide Action Network N. Am., Nat. Res. Def. Council, 15 Inc., 798 F.3d 809, 813 (9th Cir. 2015) (citing 16 Telecommunications Rsch. & Action Ctr. v. F.C.C., 750 F.2d 70, 79 17 (D.C. Cir. 1984) (“TRAC”). The Ninth Circuit determined the most 18 important factor is the first, the “rule of reason.” See In re 19 Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1139 (9th Cir. 20 2020). Despite the first factor’s significance, it is not itself 21 dispositive; all factors must be weighed. In re A Cmty. Voice, 22 878 F.3d 779, 786 (9th Cir. 2017). 23 Plaintiff alleges that Defendants must schedule his 24 interview given his I-589 has been pending for six years. See 25 Compl. ¶ 13. He contends Defendants’ failure to schedule his 26 interview is “arbitrary and capricious and not in accordance with 27 the law.” See Id. ¶¶ 13, 15. Plaintiff also alleges he has been 28 “greatly damaged” by Defendants’ delay because he has “been 1 unable to pursue a claim for asylum and related relief.” Id. 2 ¶ 15. Defendants, in response, claim the delay is reasonable 3 under the TRAC factors. See Mot. 9-16. The Court agrees with 4 Defendants for the following reasons. 5 Under the first and second factors, courts routinely 6 conclude the last-in-first-out (“LIFO”) scheduling system of 7 processing asylum applications is a rule of reason. Teymouri v. 8 U.S. Citizenship & Immigr. Servs., No. CV 22-7689 PA (JCX), 2022 9 WL 18717560, at *4 (C.D. Cal. Jan. 31, 2022) (collecting cases 10 stating LIFO is an accepted rule of reason). Furthermore, 11 although Congress articulated a timeline for the adjudication of 12 I-589s in 8 U.S.C. 1158(d)(5)(A), it also gave USCIS the leeway 13 to adjudicate applications at its discretion when exceptional 14 circumstances arise. See 8 U.S.C. § 1158(d)(5)(A). Here, as 15 Defendants point out, exceptional circumstances exist because of 16 the COVID-19 pandemic and unprecedented surge in asylum 17 applications—which strained USCIS resources and are beyond 18 Defendants’ control. See Mot. at 9; see also Decl. of John L. 19 Lafferty (“Lafferty Decl.”) ¶¶ 29-34, ECF No. 21-1. Moreover, 20 although Plaintiff claims his application has been pending for 21 six years, his Complaint states it was submitted on March 22 15, 2019—a little more than four years ago. See Compl. ¶ 9. 23 While the processing of Plaintiff’s application is greater than 24 Section 1158(d)(5)(A)’s 180-day timeline, courts regularly find 25 delays like Plaintiff’s reasonable. See Fang Yan v. Dir. of Los 26 Angeles Asylum Off. for the United States Citizenship & Immigr. 27 Servs., No. 2:22-CV-05846-ODW-MRWx, 2023 WL 4053410, at *4 (C.D. 28 Cal. June 16, 2023) (finding four-year delay reasonable); 1 Teymouri, 2022 WL 18717560, at *4 (finding five-year delay 2 reasonable); Varol v. Radel, 420 F. Supp. 3d 1089, 1097 (S.D. 3 Cal. 2019) (finding three-year delay reasonable). 4 TRAC’s third and fifth factors— concerning whether human 5 health and welfare are at stake and the nature and extent of the 6 interests prejudiced by delay—also favor Defendants. Plaintiff 7 simply asserts he has been “greatly damaged” by the delay because 8 he has “been unable to pursue a claim for asylum and related 9 relief.” Compl. ¶ 15. Plaintiff’s allegations, as a result, 10 fail to specify how the delay in scheduling his interview 11 negatively impacts his health, welfare, or interests. 12 Furthermore, as Defendants note, Plaintiff remains and works in 13 the United States without fear of removal while his I-589 is 14 being adjudicated. See Mot. at 14. Taken together, Plaintiff’s 15 allegations suggest a “minimal risk to human health or welfare, 16 and any prejudice [Plaintiff] faces from delay is likewise faced 17 by all asylum applications in similar positions.” Yan, 2023 WL 18 4053410, at *5. In turn, the Court concludes TRAC’s third and 19 fifth factors weigh against Plaintiff’s request for relief. 20 TRAC’s fourth factor—concerning the effect of expediting 21 delayed action on activities of a higher or competing priority— 22 also favors Defendants. To properly execute its 23 responsibilities, USCIS balances competing priorities—like 24 adjudicating petitions filed before Plaintiff’s and ones 25 involving exigent circumstances requiring expedited review. See 26 Lafferty Decl ¶ 27. Importantly, even when TRAC factors favor 27 granting relief, courts withhold such an outcome where “a 28 judicial order putting [an applicant] at the head of the queue nnn enn nen ene nn nnn nnn On OO II EEE 1 would simply move all others back one space and produce no net 2 gain.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 3 F.3d 1094, 1100 (D.C. Cir. 2003) (cleaned up) (quoting In re Barr 4 Labs., Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)). Here, granting 5 Plaintiff’s requested relief “simply moves [him] to the front of 6 the line at the expense of all other applicants who may not have 7 filed an application for mandamus relief.” Varol, 420 F. Supp. 8 3d at 1098. This factor therefore favors Defendants. 9 Finally, TRAC’s sixth factor states “the court need not find 10 any impropriety . . . in order to hold that agency action is 11 unreasonably delayed.” TRAC, 750 F.2d at 80. The Court, as a 12 result, need not consider whether impropriety contributed to the 13 delay Plaintiff alleges, making this factor neutral. 14 Because five of the six TRAC factors favor Defendants and 15 the other is neutral, the Court concludes Plaintiff failed to 16 state a plausible claim for relief under the APA and Mandamus 17 | Act. The Court therefore GRANTS Defendants’ motion to dismiss 18 Plaintiff’s claims WITHOUT PREJUDICE. 19 Til. ORDER 20 For the reasons set forth above, the Court GRANTS 21 Defendants’ Motion to Dismiss WITHOUT PREJUDICE. If Plaintiff 22 intends to file an amended complaint, he must do so within twenty 23 (20) days of this Order. Defendants’ responsive pleading is due 24 twenty (20) days thereafter. 25 IT IS SO ORDERED. 26 | Dated: July 19, 2023 27 a 7 Yond JOHN A. MENDEZ 28 SENIOR UNITED*STATES DISTRICT JUDGE