Kanghawa v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
BRINA N. KANGHAWA, )
)
Plaintiff, )
)
v. ) Civil Action No. 21-1386 (PLF)
)
U.S. DEPARTMENT OF HOMELAND )
SECURITY, et al., )
)
Defendants. )
____________________________________)
OPINION AND ORDER
Plaintiff Brina N. Kanghawa (“Ms. K”) entered the United States in
February 2019 to seek asylum from persecution in her home country of Cameroon. See
Complaint for Declaratory and Injunctive Relief and Mandamus (“Compl.”) [Dkt. No. 1] at ¶ 54.
U.S. Immigration and Customs Enforcement (“ICE”) apprehended Ms. K and placed her in
expedited removal, at which time Ms. K expressed fear of persecution and stated that she
intended to apply for asylum. Id. at ¶ 55-56. ICE released her from custody and issued a Notice
to Appear (“NTA”). Id. at ¶ 56. Beginning in January 2020, Ms. K attempted to apply for
asylum by filing a Form I-589 (Application for Asylum and Withholding of Removal) with both
the U.S. Citizenship and Immigration Services (“USCIS”) and the Executive Office for
Immigration Review (“EOIR”). See id. at ¶ 3. Both agencies rejected Ms. K’s application due
to an apparent administrative oversight, which stemmed from the fact that ICE never filed the
NTA with an immigration court. Id. at ¶ 4; see also Defendants’ Motion and Memorandum of
Law in Support of Defendants’ Motion to Dismiss (“Def. Mot.”) [Dkt. No. 17] at 3-4 (page
numbering based on ECF stamp). Ms. K filed a civil complaint in this Court on May 19, 2021,
seeking declaratory and injunctive relief and attorney’s fees. See Compl. at 25-26.
On August 27, 2021, defendants U.S. Department of Homeland Security et al.
moved to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Federal Rule
of Civil Procedure 12(b)(1). See Def. Mot. Defendants argue that because Ms. K now has
successfully applied for asylum, her application was accepted as timely, and she was granted
employment authorization, the relief sought by Ms. K is moot. See id. at 5; see also Joint Status
Report (“JSR”) [Dkt. No. 20] at 3-4. Ms. K opposes the motion and maintains that the action is
not moot because she has a live claim for declaratory relief. See JSR at 3. Upon careful
consideration of the parties’ written submissions, the relevant legal authorities, and the entire
record in this case, the Court will grant defendants’ motion to dismiss. 1
I. BACKGROUND
A. U.S. Asylum Laws
The Immigration and Nationality Act (“INA”), enacted in 1952, provides that any
noncitizen who is physically present in the United States (whether or not at a designated port of
arrival), may apply for asylum irrespective of their immigration status. 8 U.S.C. § 1158(a)(1).
The INA further states that “[t]he Attorney General shall establish a procedure for the
consideration of asylum applications filed under subsection (a).” Id. § 1158(d)(1); see also
1
The Court considered the following documents and accompanying attachments
and exhibits in resolving the pending motion: Complaint for Declaratory and Injunctive Relief
and Mandamus (“Compl.”) [Dkt. No. 1]; Defendants’ Motion and Memorandum of Law in
Support of Defendants’ Motion to Dismiss (“Def. Mot.”) [Dkt. No. 17]; Plaintiff’s Opposition to
Defendants’ Motion to Dismiss (“Pl. Opp.”) [Dkt. No. 12]; Defendants’ Reply to Plaintiff’s
Opposition to Defendants’ Motion to Dismiss (“Def. Reply”) [Dkt. No. 18]; and the parties’
Joint Status Report (“JSR”) [Dkt. No. 20].
2
Huisha-Huisha v. Mayorkas, 27 F.4th 718, 724 (D.C. Cir. 2022) (“‘Asylum’ relief is a
discretionary protection that the Attorney General ‘may grant’ to aliens who meet the statutory
definition of ‘refugee’ because of their ‘well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion’ in their home
country.” (quoting 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42))). A noncitizen generally has one
year from the date of his or her arrival in the United States to file for asylum. See 8 U.S.C.
§ 1158(a)(2)(B).
“In general, an alien may apply for asylum in one of three ways: (1) if she is not
in any kind of removal proceeding, she may file an affirmative application for asylum, see
8 U.S.C. § 1158(a)(1); 8 C.F.R. § 208.1(a)(1); (2) if she is subject to regular removal
proceedings under 8 U.S.C. § 1229a, she may file a defensive application for asylum as a defense
to removal, see 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 208.2(b); or (3) if she is subject to expedited
removal proceedings under 8 U.S.C. § 1225, she may also file a defensive application for asylum
as a defense to expedited removal, see 8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R. § 208.30(f).” O.A.
v. Trump, 404 F. Supp. 3d 109, 121 (D.D.C. 2019); see also M.M.V. v. Garland, 1 F.4th 1100,
1104-05 (D.C. Cir. 2021). An asylum applicant may apply for employment authorization 180
days after the date of filing his or her application for asylum. See 8 U.S.C. § 1158(d)(2).
B. Ms. K’s Asylum Application
Ms. K entered the United States on February 28, 2019 at the San Ysidro Port of
Entry in San Diego, California to seek asylum from persecution in her home country of
Cameroon. See Compl. at ¶¶ 54-55. ICE apprehended Ms. K and placed her in expedited
removal, at which time Ms. K expressed fear of persecution and stated that she intended to apply
for asylum. Id. at ¶ 55-56. ICE released her from custody and issued an NTA, “requiring her to
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notify the Office of the Immigration Judge in Memphis, TN (“Memphis Immigration Court”) of
any address change.” Id. at ¶ 56. “The ICE Nashville Field Office also sent a notice to the
Memphis Immigration Court that Plaintiff was released from ICE Custody and paroled into the
United States pursuant to 8 C.F.R. § 212.5 as a noncitizen ‘whose continued detention is not in
the public interest as determined by those officials.’” Id. at ¶ 57. 2
Ms. K first attempted to apply for asylum with the Memphis Immigration Court
on or around January 31, 2020. See Compl. at ¶ 58. On or around February 13, 2020, the
Memphis Immigration Court rejected her I-589, stating that “Immigration Court cannot schedule
a hearing or take any action unless the Department of Homeland Security has filed the charging
document with the Immigration Court.” Id.; see also 8 C.F.R. § 1003.14(a) (“Jurisdiction vests,
and proceedings before an Immigration Judge commence, when a charging document is filed
with the Immigration Court.”). Ms. K proceeded to file her I-589 with USCIS on three more
dates, all of which were rejected, Compl. at ¶ 60, and attempted in April 2020 to apply for
employment authorization, which was rejected as well, see id. at ¶ 61. On or around
November 4, 2020, Ms. K sent a letter to the Chief Appellate Immigration Judge of the Board of
Immigration Appeals (“the Board”), “summarizing her attempts to apply for asylum with EOIR
and USCIS and requesting her case be processed through any agency.” Id. at ¶ 67. In response,
the Board rejected her submission because her registration number, also known as her
“A-Number,” was not listed in the EOIR database. See id. at ¶ 68.
2
8 C.F.R. § 212.5 provides that the Department of Homeland Security (“DHS”)
may grant parole to certain individuals “on a case-by-case basis for ‘urgent humanitarian
reasons’ or ‘significant public benefit,’ provided the aliens present neither a security risk nor a
risk of absconding.” 8 C.F.R. § 212.5(b).
4
Because both agencies repeatedly rejected her applications for asylum, Ms. K was
unable to comply with the statutory deadline to apply for asylum within one-year from the date
of arrival in the United States to file for asylum. See Compl. at ¶ 9; 8 U.S.C. § 1158(a)(2)(B).
Furthermore, because a noncitizen may only apply for employment authorization once their
asylum application has been pending for 180 days, she was unable to obtain an employment
authorization document (“EAD”) during this time. See Compl. at ¶ 10; 8 C.F.R. § 208.7.
Ms. K initiated this lawsuit on May 19, 2021, alleging that defendants’ failure “to
take any necessary agency action that would allow any adjudicating agency to have jurisdiction
over her application” deprived her of the right to apply for asylum and have her claim heard, in
violation of the Immigration and Nationality Act, the Administrative Procedure Act, and the Due
Process Clause of the Fifth Amendment. Compl. at ¶¶ 1, 12. Ms. K sought declaratory and
injunctive relief and mandamus pursuant to the Mandamus Act. See id. at ¶¶ 12, 104-09. Ms. K
requested that the Court compel defendants to take necessary action to allow “an adjudicating
agency to have jurisdiction to accept her asylum application, ensure her application is accepted
as timely under the one-year statutory filing deadline, and ensure she can seek employment
authorization within a reasonable time period.” Id. at ¶ 13. Approximately one month after
commencement of this action, ICE filed the Notice to Appear with EOIR, bringing Ms. K’s
application within EOIR’s jurisdiction. See Def. Mot. at 5.
Pursuant to the Court’s Minute Order of May 31, 2022, the parties submitted a
Joint Status Report updating the Court on the status of Ms. K’s application for asylum and
application for employment authorization on June 10, 2022. See JSR at 1. The parties proffered
that on July 2, 2021, the Memphis Immigration Court accepted Ms. K’s application for asylum
and “ICE also filed a notice with the Immigration Court that Plaintiff was entitled to have her
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asylum application considered timely in light of the one-year statutory filing deadline.” Id. Ms.
K’s hearing is now scheduled for September 23, 2024, “when the Immigration Court will hear
the merits of her claims for asylum and other relief and decide whether to grant her relief from
removal.” Id. at 2. On or about January 12, 2022, USCIS approved Ms. K’s application for
employment authorization. See id. According to the parties, “USCIS presumably corrected
Plaintiff’s EAD clock by using one of her earlier attempted filings for asylum, thereby having
her accrue the necessary waiting period to apply for an EAD, and expedited the processing of her
[application for employment authorization].” Id.II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction, possessing only those powers
authorized by the Constitution and an act of Congress. See, e.g., Janko v. Gates, 741 F.3d 136,
139 (D.C. Cir. 2014); Abulhawa v. U.S. Dep’t of the Treasury, 239 F. Supp. 3d 24, 30
(D.D.C. 2017). The plaintiffs bear the burden of establishing that the Court has jurisdiction. See
Walen v. United States, 246 F. Supp. 3d 449, 452 (D.D.C. 2017).
In determining whether to grant a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court must construe
the complaint in plaintiffs’ favor and treat all well-pleaded factual allegations as true. See Attias
v. CareFirst, Inc., 865 F.3d 620, 627 (D.C. Cir. 2017); Gutierrez v. U.S. Dep’t of Homeland Sec.,
Civ. No. 18-1958, 2019 WL 6219936, at *3 (D.D.C. Nov. 21, 2019). Although the Court must
grant plaintiffs the benefit of all reasonable inferences, the Court “need not accept factual
inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the
complaint,” and the Court need not accept plaintiffs’ legal conclusions. Disner v. United States,
888 F. Supp. 2d 83, 87 (D.D.C. 2012). Finally, in determining whether plaintiffs have met the
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burden of establishing jurisdiction, the Court may consider materials beyond the pleadings where
appropriate. Am. Nat’l Ins. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011); Cumis Ins. Society
Inc. v. Clark, 318 F. Supp. 3d 199, 207 (D.D.C. 2018).
The doctrine of mootness, on which defendants’ arguments rely, is a jurisdictional
inquiry. Safari Club Int’l v. Jewell, 842 F.3d 1280, 1285, 1287 (D.C. Cir. 2016); Mine
Reclamation Corp. v. FERC, 30 F.3d 1519, 1522 (D.C. Cir. 1994) (“[M]ootness goes to the
jurisdiction of this court.”). Accordingly, motions to dismiss for mootness are properly brought
under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Han v. Lynch, 223 F. Supp. 3d. 95,
102 (D.D.C. 2016). “The initial heavy burden of establishing mootness lies with the party
asserting a case is moot, but the opposing party bears the burden of showing an exception
applies.” J.D. v. Azar, 925 F.3d 1291, 1307 (D.C. Cir. 2019) (quoting Honeywell Int’l v.
Nuclear Regulatory Comm'n, 628 F. 3d 568, 576 (D.C. Cir. 2010)). Once a court determines that
a claim is moot, it lacks jurisdiction to entertain the claim and must dismiss it. Han v. Lynch,
223 F. Supp. 3d at 103.
“A case is moot when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Honeywell Int’l, Inc. v. Nuclear Regulatory
Comm'n, 628 F.3d at 576 (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979));
see also 13B EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.2.1 (3d ed. 2022)
(“If full relief is accorded by another tribunal—whether judicial, administrative, arbitral, or a
combination —a proceeding seeking the same relief is moot.”). “Under Article III of the United
States Constitution [courts] may only adjudicate actual, ongoing controversies.” Reid v.
Hurwitz, 920 F.3d 828, 832 (D.C. Cir. 2019) (quotations omitted). Changed circumstances can
moot a previously valid claim. “Under the mootness doctrine, [courts] cannot decide a case if
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‘events have so transpired that the decision will neither presently affect the parties’ rights nor
have a more-than-speculative chance of affecting them in the future.” Id. (quoting Clarke v.
United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc)).
III. DISCUSSION
The Court concludes that this case is moot and therefore the Court does not have
subject matter jurisdiction. Ms. K’s claims arise from her inability to apply for asylum, to
comply with the one-year statutory deadline, and to obtain employment authorization within a
reasonable time. See Compl. at ¶ 8-10. Since the time Ms. K filed her complaint on
May 19, 2021, these conditions have materially changed in a way that affect whether any live
controversy persists between the parties. Ms. K has now applied for asylum, her application was
accepted as timely, she received notice of a scheduled hearing, and she has been granted
employment authorization. See JSR at 1-2. The parties’ joint status report includes the
following factual proffers jointly agreed to by the parties:
• On July 2, 2021, the Memphis Immigration Court accepted
Plaintiff’s application for asylum, Form I-589.
• On August 5, 2021, ICE also filed a notice with the
Immigration Court that Plaintiff was entitled to have her
asylum application considered timely in light of the one-year
statutory filing deadline.
• Plaintiff’s merits hearing is scheduled for
September 23, 2024, when the Immigration Court will hear
the merits of her claims for asylum and other relief and
decide whether to grant her relief from removal.
• USCIS presumably corrected Plaintiff’s EAD clock by
using one of her earlier attempted filings for asylum,
thereby having her accrue the necessary waiting period to
apply for an EAD, and expedited the processing of her
[application for employment authorization].
See JSR at 1-2.
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The only remaining relief that Ms. K seeks is a declaratory judgment that
defendants’ actions and agency policy violated her constitutional and statutory rights. See JSR
at 3. But declaratory judgment is a forward-looking remedy; it is a statement of “the rights and
other legal relations” of the parties, see 28 U.S.C. § 2201, that is generally sought when an actual
controversy exists but before it has “reached the stage at which either party may seek a coercive
remedy.” See Malibu Media, LLC v. Parsons, Civ. No. 12-1331, 2013 WL 12324463, at *9
(D.D.C. May 31, 2013); see also 10B MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE
§ 2751 (4th ed. 2022) (In actions for declaratory judgment, “[t]he jurisdiction of the courts is not
expanded and requests for declaratory judgments may be heard only in cases that otherwise are
within their jurisdiction.”). And this Court has made clear that “[d]eclaratory judgments are
discretionary, appropriate when there is ‘a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.’” Gutierrez v. U.S. Dep't of Homeland Sec., 2019 WL 6219936, at *5
(quoting Harford Mut. Ins. Co. v. New Ledroit Park Bldg. Co., LLC, 313 F. Supp. 3d 40, 45
(D.D.C. 2018)). In the context of the changed factual circumstances in this case, the relief that
Ms. K seeks would not resolve any question that would “presently affect the parties’ rights [or]
have a more-than-speculative chance of affecting them in the future.” Reid v. Hurwitz, 920 F.3d
at 832 (quoting Clarke v. United States, 915 F.2d at 70). There are no facts showing that any of
Ms. K’s rights in the future would be affected by a declaratory judgment that defendants’ prior
conduct was unlawful. See JSR at 1-2.
Moreover, there is no evidence that any of the exceptions to the mootness doctrine
apply here. First, Ms. K’s complaint does not involve an alleged injury that is “capable of
repetition yet evading review.” See United States v. Weston, 194 F.3d 145, 148 (D.C.
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Cir. 1999). This exception applies only where “the challenged action is in its duration too short
to be fully litigated prior to its cessation or expiration” and where “there is a reasonable
expectation that the same complaining party will be subject to the same action again.” See id.;
see also Planned Parenthood of Wisconsin, Inc. v. Azar, 942 F.3d 512, 517 (D.C. Cir. 2019).
Second, this is not a circumstance in which voluntary cessation of the challenged practice creates
an exception to the mootness doctrine. See Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000). “For the [voluntary cessation] exception to apply, the
[defendants’] voluntary cessation must have arisen because of the litigation.” Sze v.
Immigration and Nationality Service, 153 F.3d 1005, 1008 (9th Cir. 1998) (emphasis in
original); see also Citizens for Responsibility & Ethics in Wash. v. Wheeler, 352 F. Supp. 3d
1, 13 (D.D.C. 2019). There is no evidence that that is the case here.
Furthermore, plaintiff effectively concedes that the alleged wrongdoing by the
government was the result of an apparent administrative oversight “due to ICE never having filed
her NTA with an immigration court to initiate removal proceedings nor having vacated the
expedited removal order.” Compl. at ¶ 4. The Memphis Immigration Court has now scheduled
Ms. K’s merits hearing and “corrected Plaintiff’s EAD clock.” JSR at 2. “[T]here is no
reasonable expectation that the alleged violation will recur.” Citizens for Responsibility &
Ethics in Wash. v. Wheeler, 352 F. Supp. 3d at 13 (internal quotations omitted). Accordingly, it
is hereby
ORDERED that Defendants’ Motion to Dismiss [Dkt. No. 17] is GRANTED and
plaintiff’s complaint is dismissed in its entirety; and it is
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FURTHER ORDERED that the Clerk of the Court shall remove this case from
the docket of the Court. This is a final appealable order. See FED. R. APP. P. 4(a).
SO ORDERED.
/s/
________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: September 30, 2022
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