Kanghawa v. U.S. Dep't of Homeland Sec.

• Decision Date: 30 September 2022
• Docket Number: Civil Action 21-1386 (PLF)
• Parties: BRINA N. KANGHAWA, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

BRINA N. KANGHAWA, Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

Civil Action No. 21-1386 (PLF)

United States District Court, District of Columbia

September 30, 2022

OPINION AND ORDER

PAUL L. FRIEDMAN, United States District Judge.

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

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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);

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see also 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.

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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,...