Gao Qi v. United States Citizenship & Immigration Servs.

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GAO QI, Plaintiff, v. UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES et al., Defendants.

No. 1:23-cv-08843 (JLR)

United States District Court, S.D. New York

May 17, 2024

OPINION AND ORDER

JENNIFER L. ROCHON, United States District Judge

Gao Qi (“Plaintiff”) filed an asylum application with United States Citizenship and Immigration Services (“USCIS”) in 2020. ECF No. 1 (“Compl.”) at 5. Several years have passed, yet Plaintiff has “not receive[d] an appointment for [an] asylum interview.” Id. Seeking to expedite matters, Plaintiff has sued USCIS, USCIS's Office of the General Counsel (the “General Counsel”), and the United States Attorney for the Eastern District of New York (the “U.S. Attorney” and, together with USCIS and the General Counsel, the “Government”). See generally id.

The Government has moved to dismiss. ECF No. 18 (“Br.”). For the following reasons, the Court grants the Government's motion.

BACKGROUND

Plaintiff is a citizen of China. ECF No. 17 (“Heinrich Decl.”) ¶ 8. According to the Government Plaintiff “illegally entered the United States on November 30, 2019.” Id. ¶ 9. Plaintiff does not confirm or deny this assertion, although he admits that he “entered the USA without inspection.” ECF No. 23 (“Opp.”) at 1; see In re Motors Liquidation Co., 957 F.3d 357, 360 (2d Cir. 2020) (per curiam) (“A judicial admission is a statement made by a party or its counsel which has the effect of withdrawing a fact from contention and which binds the party making it throughout the course of the proceeding.”). USCIS received Plaintiff's Form I-589 application for asylum on October 13, 2020. Compl. at 5, 7; Heinrich Decl. ¶ 10; see Chen v. Garland 75 F.4th 109, 112 (2d Cir. 2023) (Form I-589 “asks applicants to provide information about their personal and family backgrounds and details about the harm or mistreatment that they experienced in their home country”). Plaintiff appeared for a fingerprinting appointment on December 4, 2020. Compl. at 5. To date, Plaintiff's asylum application remains pending. Id.; Heinrich Decl. ¶ 16.

On May 15, 2023, Plaintiff filed this action (designated both as a complaint and as a petition for a writ of mandamus) in the United States District Court for the Eastern District of New York. Compl. at 1. Plaintiff asserts that there has been “undue delay in [his] I-589 asylum application,” in violation of due process. Id. at 4-5. Plaintiff requests that USCIS's Asylum Office “issue a Notice of Interview” so that his “asylum application can continue [through the] process.” Id. at 6 (“[A]fter I have my asylum interview, my asylum case could either [be] approve[d] by U.S. Citizenship and Immigration Services, or refer[red] to Immigration Court. Right now, my case is stuck without [an] asylum interview.”). On October 4, 2023, Judge Chen ordered that the case be transferred to this District, ECF No. 8, where it was assigned to the undersigned.

On November 7, 2023, the Government moved to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and Rule 12(b)(6). Br. On November 28, 2023, the Court noted that Plaintiff's opposition was past due and ordered Plaintiff to file his opposition by December 22, 2023, or otherwise show cause why the Government's motion to dismiss should not be treated as unopposed. ECF No. 20. “As a final courtesy,” on March 25, 2024, the Court “permit[ted] Plaintiff to file a response to [the Government's] motion to dismiss by April 10, 2024.” ECF No. 21 (emphasis omitted); see Rosa v. Doe, 86 F.4th 1001, 1007 (2d Cir. 2023) (the “special solicitude” afforded to pro se litigants “includes leniency in the application of procedural rules”). On April 10, 2024, Plaintiff submitted his opposition. Opp. The Government has not filed a reply brief.

LEGAL STANDARD

“A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (quotation marks and citation omitted), aff'd, 568 U.S. 85 (2013). “In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (citation omitted). “In deciding a Rule 12(b)(1) motion, the court may also rely on evidence outside the complaint.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.d.r.l., 790 F.3d 411, 417 (2d Cir. 2015).

“To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Olson v. Major League Baseball, 29 F.4th 59, 71 (2d Cir. 2022) (quotation marks and citation omitted). A court must draw all reasonable inferences in favor of the plaintiff. Palmer v. Amazon.com, Inc., 51 F.4th 491, 503 (2d Cir. 2022).

DISCUSSION

Because Plaintiff is pro se, the Court “liberally construe[s]” his pleadings and motion papers and reads them “to raise the strongest arguments they suggest.” Publicola v. Lomenzo, 54 F.4th 108 111 (2d Cir. 2022) (per curiam) (citation omitted). Like the Government, the Court understands Plaintiff to “assert[] claims under the Mandamus Act, 28 U.S.C. § 1361, the Administrative Procedure Act (the ‘APA'), 5 U.S.C. §§ 701-706, and the Due Process Clause of the Fifth Amendment.” Br. at 1.

Plaintiff's mandamus and APA claims both implicate 8 U.S.C. § 1158, a provision of the Immigration and Nationality Act (the “INA”). Several parts of Section 1158 are relevant here.

• 8 U.S.C. § 1158(a)(1) states: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.”

• 8 U.S.C. § 1158(d)(1) states in relevant part: “The Attorney General shall establish a procedure for the consideration of asylum applications filed under subsection (a).”

• 8 U.S.C. § 1158(d)(5)(A)(ii) states: “The procedures established under paragraph (1) shall provide that . . . in the absence of exceptional circumstances, the initial interview or hearing on the asylum application shall commence not later than 45 days after the date an application is filed.”^[1]

• 8 U.S.C. § 1158(d)(7), titled “No private right of action,” states: “Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.”

The Court addresses Plaintiff's claims in turn.

I. Mandamus

Generously understood, Plaintiff seeks a writ of mandamus to compel the Government to adhere to the 45-day deadline for “commenc[ing]” “the initial interview or hearing on the asylum application.” 8 U.S.C. § 1158(d)(5)(A)(ii). The Government moves to dismiss Plaintiff's mandamus claim under Rule 12(b)(1) for lack of subject-matter jurisdiction. See Br. at 11-12.

District courts “have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The writ of mandamus “is a drastic and extraordinary remedy reserved for really extraordinary causes.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004) (quotation marks and citation omitted). “[J]urisdiction under the mandamus statute is limited to actions seeking to compel the performance of a nondiscretionary duty.” Duamutef v. INS, 386 F.3d 172, 180 (2d Cir. 2004) (emphasis omitted); accord Rahman v. Jaddou, No. 22-101, 2022 WL 6593589, at *2 (2d Cir. Oct. 11, 2022) (summary order). “Before a writ of mandamus may issue, a party must establish that (1) no other adequate means exist to attain the relief he desires, (2) the party's right to issuance of the writ is clear and indisputable, and (3) the writ is appropriate under the circumstances.” Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (brackets, quotation marks, and citation omitted).

As explained in greater detail below, the Court agrees with the Government that Plaintiff's mandamus claim should be dismissed because Plaintiff has failed to establish a clear and indisputable right to issuance of the writ. The Court disagrees, however, with the Government's request to dismiss under Rule 12(b)(1).

Courts in this Circuit have differed as to “whether a failure to satisfy the elements of a mandamus claim under § 1361 warrants dismissal for lack of jurisdiction or for failure to state a claim.” City of New York v. U.S. Postal Serv., 519 F.Supp.3d 111, 127 n.9 (E.D.N.Y. 2021); accord Ngai v. Mayorkas, No. 22-cv-05358 (LDH), 2024 WL 1346530, at *1 n.2 (E.D.N.Y. Mar. 29, 2024) (“The question of whether [meeting] the three requirements for a writ of mandamus is a jurisdictional or merits inquiry remains an open question in this circuit.”). The split on the issue has included immigration cases like this one. Compare, e.g., Fangfang Xu v. Cissna, 434 F.Supp.3d 43, 57 (S.D.N.Y. 2020) (dismissing for lack of jurisdiction), Baisheng Chen v. Wolf, No. 19-cv-09951 (AJN), 2020 WL 6825681, at *3 (S.D.N.Y. Nov. 20, 2020) (same), and Ying Yu Liu v. Wolf, No. 19-cv-00410 (PGG), 2020 WL 2836426, at *10 (S.D.N.Y. May 30, 2020) (same), with Weihua Zheng v. Garland, No. 22-cv-06039 (AMD), 2024 WL 333090, at *4 (E.D.N.Y. Jan. 29, 2024) (dismiss...