A.Z. v. Nielson

• Decision Date: 23 October 2018
• Docket Number: Civil Action No. 18-10511-PBS
• Parties: A.Z., Plaintiff, v. KIRSTJEN M. NIELSON, as Secretary of the Department of Homeland Security; LEE FRANCIS CISSNA, as Director of the U.S. Citizenship & Immigration Services; JENNIFER B. HIGGINS, as USCIS Associate Director of Refugee, Asylum & International Operations, Defendants.
• Court: U.S. District Court — District of Massachusetts

A.Z., Plaintiff, v. KIRSTJEN M. NIELSON, as Secretary of the Departmentof Homeland Security; LEE FRANCIS CISSNA,as Director of the U.S. Citizenship & Immigration Services;JENNIFER B. HIGGINS, as USCIS Associate Directorof Refugee, Asylum & International Operations, Defendants.

Civil Action No. 18-10511-PBS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

October 23, 2018

MEMORANDUM AND ORDER

Saris, C.J.

INTRODUCTION

Plaintiff brings this complaint for a writ of mandamus and declaratory judgment alleging that agency officials violated the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., during her asylum interview when she was designated a "no show" after refusing to answer questions per counsel's instruction. Plaintiff seeks a preliminary injunction ordering the Government not to place her in removal proceedings and to remove the no- show designation in her asylum application file (Docket No. 10). She argues she needs this relief to "keep the days counting" toward her eligibility for employment authorization. The Government has moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state a claim.

After a hearing, the Court ALLOWS the Government's motion to dismiss (Docket No. 20).

LEGAL BACKGROUND

I. Asylum Application Procedures

An alien physically present in the United States may apply for asylum. 8 U.S.C. § 1158(a)(1). An asylum application must be filed within one year of an alien's arrival in the United States. Id. § 1158(a)(2)(B). Even if an alien misses the one-year deadline, U.S. Citizenship and Immigration Services (USCIS), which adjudicates asylum applications, may still consider the application if the alien demonstrates either "changed circumstances which materially affect [her] eligibility for asylum or extraordinary circumstances relating to the delay in filing an application." Id. § 1158(a)(2)(D).

Once an asylum seeker has filed an application, an initial interview must occur within 45 days, barring exceptional circumstances. Id. § 1158(d)(5)(A)(ii). If an applicant fails to appear for her interview, USCIS sends her a warning letterdirecting her to explain her absence within 45 days. USCIS, Affirmative Asylum Procedures Manual § III.I (2013) ("AAPM" or "the Manual"). USCIS does not take any further action on the application until the 45 days have passed. Id. § III.I(2). USCIS treats a response within the 45-day period as a request to reschedule the interview, which it grants if the applicant demonstrates good cause for her failure to appear. Id.; see also 8 C.F.R. § 208.10 (requiring the applicant to demonstrate "exceptional circumstances" to excuse her failure to appear). If the applicant does not respond or provides an insufficient explanation for her failure to appear, she is "deemed to have waived his or her right to an interview or adjudication by an asylum officer." 8 C.F.R. § 208.14(c). When the applicant appears inadmissible or deportable, "the asylum officer shall refer the application to an immigration judge . . . for adjudication in removal proceedings." 8 C.F.R. § 208.14(c)(1) (emphasis added); accord AAPM § III.I(2)(a)(ii). In immigration court, the applicant may seek dismissal of her removal proceedings by demonstrating exceptional circumstances for missing the interview. AAPM § III.I(2)(b)(iii).

Asylum applicants may be represented at the interview by counsel. 8 U.S.C. § 1158(d)(4). The regulations governing the procedures for the interview before an asylum officer state:

(b) The asylum officer shall conduct the interview in a nonadversarial manner and, except at the request of the applicant, separate and apart from the general public. The purpose of the interview shall be to elicit all relevant and useful information bearing on the applicant's eligibility for asylum. At the time of the interview, the applicant must provide complete information regarding his or her identity, including name, date and place of birth, and nationality, and may be required to register this identity. The applicant may have counsel or a representative present, may present witnesses, and may submit affidavits of witnesses and other evidence.

(c) The asylum officer shall have authority to administer oaths, verify the identity of the applicant (including through the use of electronic means), verify the identity of any interpreter, present and receive evidence, and question the applicant and any witnesses.

(d) Upon completion of the interview, the applicant or the applicant's representative shall have an opportunity to make a statement or comment on the evidence presented. The asylum officer may, in his or her discretion, limit the length of such statement or comment and may require its submission in writing . . . .

8 C.F.R. § 208.9. The parties do not point to any provision in the statute, regulations, or Manual governing the refusal of an asylum applicant to answer questions during the interview upon advice of counsel.

II. Employment Authorization

An applicant for asylum is eligible to receive an employment authorization document (EAD) 180 days after submitting a complete asylum application, as long as the application has not yet been denied. 8 C.F.R. § 208.7(a)(1). Anydelay in processing the application that is "requested or caused by the applicant" stops the 180-day clock and ends her eligibility for employment authorization. Id. § 208.7(a)(2); accord AAPM § III.F(3). For example, an applicant who fails to appear for a scheduled interview before an asylum officer is ineligible for employment authorization, unless she demonstrates good cause for her failure to appear within the 45-day period described above. AAPM § III.I(2)(b). USCIS treats the suspension of an interview due to failure of the applicant's attorney to abide by the rules as the fault of the applicant, thus stopping the EAD clock. Id. § II.J(5)(e) (abuse of a representative's role). The Manual states:

It is the AO's [Asylum Officer's] duty to ensure that the representative follows the rules of the interview as explained at the outset of the interview, which includes turning off all cellular phones or beepers.

With concurrence of an SAO [Supervisory Asylum Officer], an AO [Asylum Officer] may ask a representative who continuously fails to abide by the rules after repeated warnings, to leave the interview. If the attorney is asked to leave, the AO either continues with the interview or suspends the interview at the applicant's request. If the interview is suspended, the rescheduling of the appointment is at the fault of the applicant, so the EAD clock stops. The AO must clearly outline in the interview notes what occurred during the interview that prompted the representative's dismissal from the AO's office. An AO must consult with an SAO prior to dismissing an attorney from an interview.

Id. A stopped EAD clock will resume only if the immigration court dismisses the applicant's removal proceedings upon ashowing of exceptional circumstances. AAPM § III.I(2)(b), III.I(2)(b)(iii).

FACTUAL BACKGROUND

The complaint alleges the following facts, some of which are disputed.¹ Plaintiff filed her Form I-589 Application for Asylum with USCIS on December 27, 2017. She attended her interview with her attorney on March 14, 2018. During the interview, the asylum officer told her that her attorney could not instruct her on whether to answer questions requesting more information about her asylum eligibility. The officer then asked Plaintiff to explain how and when she retained her attorney. She refused to respond to this question, and the asylum officer informed her that she would be designated a no show in USCIS's computer system. Because of this designation, Plaintiff's EAD clock stopped running, preventing her from receiving employment authorization.

DISCUSSION

Plaintiff brings this lawsuit to challenge her no-show designation and request a new interview. The Government has moved to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6). In a multi-pronged attack, the Government argues that (1) Plaintiff failed to exhaust administrative remedies; (2) if Plaintiff fails to provide good cause for her request to reschedule her interview and USCIS refers her case to immigration court, the Court would lack jurisdiction to review USCIS's referral decision; (3) USCIS correctly stopped the EAD clock after Plaintiff impeded adjudication of her asylum claim; and (4) 8 U.S.C. § 1158(d)(7) deprives Plaintiff of a private right of action to challenge USCIS's action in this case.

I. Standard of Review

While some of the relief sought raises jurisdictional issues (like the request for an order to bar removal), Plaintiff primarily challenges USCIS's initial no-show designation immediately following her interview. This request for relief under the APA and Mandamus Act and the Government's arguments for dismissal are better addressed under Rule 12(b)(6). See Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st Cir. 2007) (noting that, in the absence of statutory language suggesting that Congress intended exhaustion to be a prerequisite to federal court jurisdiction, "APA's finalityrequirement is not jurisdictional in nature"); Comley v. Town of Rowley, 296 F. Supp. 3d 327, 331-32, 335-36 (D. Mass. 2017) (addressing whether the plaintiff has a private right of action under the Rule 12(b)(6) rubric).

In analyzing whether a complaint states a claim sufficient to satisfy Rule 12(b)(6), the Court must set aside any statements that are merely conclusory and examine only the pleader's factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "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. at 678.

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