L.M. v. Johnson

Citation150 F.Supp.3d 202
Decision Date07 December 2015
Docket Number14-CV-3833 (NGG) (VMS)
Parties L.M., et al., Plaintiffs, v. Jeh Charles Johnson, Secretary, U.S. Department of Homeland Security, et al., Defendants.
CourtU.S. District Court — Eastern District of New York

Paul O'Dwyer, Law Office of Paul O'Dwyer, New York, NY, for Plaintiffs.

J. Max Weintraub, Stacey Young, United States Department of Justice, Washington, DC, Scott Dunn, United States Attorneys Office, Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS

, United States District Judge

On May 13, 2015, Plaintiffs L.M. et al.1 filed an Amended Complaint on behalf of themselves and all similarly situated asylum applicants, seeking mandamus, injunctive, and declaratory relief against five officers (Defendants) of the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (“USCIS”). (Am. Compl. (Dkt. 12).) Plaintiffs allege that DHS and USCIS have unlawfully delayed adjudication of Plaintiffs' asylum applications in violation of the Immigration and Nationality Act (“INA”), the Administrative Procedure Act (“APA”), and the Due Process and Equal Protection Clauses of the United States Constitution. Defendants have moved to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure

. (Not. of Mot. (Dkt. 16–1).) For the reasons set forth below, Defendants' motion to dismiss is GRANTED for failure to state a claim as to all claims except Plaintiffs' notice-and-comment claim pertaining to the Controlled Application Review and Resolution Program (“CARRP”), for which the court requires supplemental briefing.

I. BACKGROUND

The INA provides that [a]ny alien who is physically present in the United States ... may apply for asylum.” 8 U.S.C. § 1158(a)(1)

. The Secretary of Homeland Security or the Attorney General “may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General... if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of [Title 8].” Id. § 1158(b)(1)(A). The INA sets forth procedures that direct the Government to conduct an initial interview of an asylum applicant within 45 days of the filing of an application and to complete administrative adjudication of the application within 180 days of the filing of the application. Id. § 1158(d)(5)(A)(ii), (iii). However, Section 1158(d)(7) —entitled “No private right of action”—further provides that [n]othing in [Section 1158(d) ] 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.” Id. § 1158(d)(7).

Plaintiff L.M. is a citizen of Nicaragua who filed for asylum in August 2012 and was interviewed by USCIS on December 8, 2014. (Am. Compl. ¶ 105.) Her asylum application is still pending. (Id. ) The other named Plaintiffs are all adult citizens of foreign countries from around the world whose asylum applications are pending and either have not been scheduled for an interview within the 45-day timeframe provided in Section 1158(d)(5)(A)(ii)

or who have been interviewed but have not received final adjudication within the 180-day timeframe provided in Section 1158(d)(5)(A)(iii). (Id. ¶ 17.) Plaintiffs allege that the current backlog of asylum applications “has grown from 51,000 to 82,000” and that a two-year wait time for an initial interview violates the INA. (Id. ¶¶ 1, 2.) Additionally, Plaintiffs allege that Defendants' use of a set of procedures, such as CARRP, for identifying asylum applications that present national security concerns is not authorized by the INA and creates a “substantive regime” that results in delays, “pretextual denials,” and unequal treatment on the basis of a “particular ethnic, religious or national profile.” (Id. ¶¶ 5, 43, 55, 56.) Plaintiffs finally contend that Defendants unlawfully prioritize the interview and adjudication of asylum applications filed by unaccompanied alien children (“UACs”) “at the expense of backlogged cases that have been pending for years without interview.” (Id. ¶¶ 41, 62.)

Defendants have moved to dismiss the Amended Complaint on the grounds that the court lacks subject-matter jurisdiction over Plaintiffs' claims and/or Plaintiffs have failed to state a claim upon which the court can grant relief.

II. LEGAL STANDARDS
A. Motion to Dismiss
1. Rule 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure

authorizes dismissal of a claim when the court “lacks jurisdiction over the subject matter.” Fed. R. Civ. P. 12(b)(1). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir.2005). “After construing all ambiguities and drawing all inferences in a plaintiff's favor, a district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.” Id. (internal citation and quotation marks omitted). Courts evaluating Rule 12(b)(1) motions may consider evidence outside of the pleadings.

Makarova v. United States , 201 F.3d 110, 113 (2d Cir.2000)

. “Where, as here, the defendant moves for dismissal under Rule 12(b)(1), as well as on other grounds, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Rhulen Agency. Inc. v. Ala. Ins. Guar. Ass'n , 896 F.2d 674, 678 (2d Cir.1990) (internal citation and quotation marks omitted).

2. Rule 12(b)(6)

The purpose of a motion to dismiss for failure to state a claim under Rule 12(b)(6)

is to test the legal sufficiency of a plaintiff s claims for relief. Patane v. Clark , 508 F.3d 106, 112 (2d Cir.2007). In reviewing a complaint, the court must accept as true all allegations of fact, and draw a reasonable inference from these allegations in favor of the plaintiff. ATSI Commc'ns. Inc. v. Shaar Fund. Ltd. , 493 F.3d 87, 98 (2d Cir.2007).

A complaint will survive a motion to dismiss if it contains “sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Plausibility “is not akin to a 'probability requirement,' but requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. [M]ere 'labels and conclusions' or 'formulaic recitation[s] of the elements of a cause of action will not do'; rather, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.” Arista Records. LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010) (emphasis in original) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

B. Mandamus Act

Plaintiffs seek a writ of mandamus directing Defendants to schedule all Plaintiffs for interview who have not already been interviewed and to interview and adjudicate all backlogged asylum cases. (Am. Compl. at 41.) The Mandamus Act grants district courts with jurisdiction “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

. For relief under the statute, there must be (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.” Anderson v. Bowen , 881 F.2d 1, 5 (2d Cir.1989) (quoting Lovallo v. Froehlke , 468 F.2d 340, 343 (2d Cir.1972) ).

C. Administrative Procedure Act

Plaintiffs also seek a declaration that Defendants' failure to comply with the statutory timeframes and Defendants' practices of treating certain asylum applicants differently violate the APA. (Am. Compl. at 41.)

Section 555 of the APA provides that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b)

. The APA further provides that courts shall “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). The APA tempers this grant of judicial power by expressly limiting review where statutes preclude judicial review” or “agency action is committed to agency discretion by law.” Id. § 701(a)(1), (2). “In determining reasonableness, we look to the source of delay—e.g., the complexity of the investigation as well as the extent to which the defendant participated in delaying the proceeding.” Reddy v. CFTC , 191 F.3d 109, 120 (2d Cir.1999)

. Courts also regularly apply the six factors set forth in Telecommunications Research and Action Center, v. FCC , 750 F.2d 70, 80 (D.C.Cir.1984) (the TRAC factors), which are: (1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable, it may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably...

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