A.Z. v. NIELSEN et al

Filing 36

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered. " Accordingly, the Court ALLOWS Defendants motion to dismiss (Docket No. 20 ). Plaintiffs motion for a preliminary injunction (Docket No. 10 ) is DENIED. The Court orders that the Declaration of Meghann Boyle (Docket No. 30 ) be unsealed. " (Coppola, Katelyn)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
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Plaintiff,
)
)
)
v.
)
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KIRSTJEN M. NIELSON, as Secretary )
of the Department of Homeland
)
Security; LEE FRANCIS CISSNA, as
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Director of the U.S. Citizenship
)
& Immigration Services; JENNIFER
)
B. HIGGINS, as USCIS Associate
)
Director of Refugee, Asylum &
)
International Operations,
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Defendants.
)
___________________________________)
A.Z.,

Civil Action
No. 18-10511-PBS

MEMORANDUM AND ORDER
October 23, 2018
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 no1

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 oneyear 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 letter
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directing 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:

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(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). Any

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delay 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 a
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showing 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.

1

In support of its motion to dismiss, the Government has
submitted an affidavit from Rachael Schupp-Star, a Supervisory
Asylum Officer in the Boston Asylum Sub-Office at USCIS,
explaining the Government’s perspective on what occurred during
the interview and disputing much of Plaintiff’s account.
According to Ms. Schupp-Star, Plaintiff was asked why she filed
for asylum more than ten years after her date of entry, and her
attorney refused to allow her to answer. She also contends the
attorney was verbally abusive to the asylum officer. Plaintiff’s
attorney strongly denies these allegations. The Government has
also submitted an affidavit from Meghann Boyle, the Director of
the Boston Asylum Sub-Office at USCIS, that explains the
affirmative asylum and employment authorization application
process.
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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 finality
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requirement 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.
II.

8 U.S.C. § 1158(d)(7)
The Government argues that 8 U.S.C. § 1158(d)(7) is a

statutory bar to Plaintiff’s cause of action. This provision,
titled “No private right of action,” provides that “[n]othing in
this subsection [8 U.S.C. § 1158(d), which governs asylum
procedures] 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.” Some courts have relied on this provision to
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dismiss complaints seeking to compel USCIS to adjudicate asylum
applications within 180 days and schedule asylum interviews
within 45 days; both time limits are required by 8 U.S.C.
§ 1158(d)(5). See, e.g., L.M. v. Johnson, 150 F. Supp. 3d 202,
209 (E.D.N.Y. 2015).2 Thus, to the extent Plaintiff is suing to
force USCIS to grant her a new asylum interview or employment
authorization, this statutory provision bars her claim.
Plaintiff backpedals in the relief she seeks by arguing
§ 1158(d)(7) does not apply because she is only seeking to
eliminate a false statement in her records. By its terms,
§ 1158(d)(7) only bars claims seeking to enforce rights within 8
U.S.C. § 1158(d), which sets out certain procedures for
adjudicating asylum applications. The subsection says nothing
about what USCIS should do when an attorney interrupts an asylum
interview or how the agency should designate applicants after
their interview. Thus, this provision does not bar Plaintiff
from challenging USCIS’s decision to designate her a no show
after her interview.

2

One unpublished circuit opinion has come to this
conclusion. See Vang v. Gonzales, 237 F. App’x 24, 31 (6th Cir.
2007). Another has read § 1158(d)(7) to bar an alien’s suit
challenging the adequacy of notice concerning the consequences
of filing a frivolous asylum application, which is required by 8
U.S.C. § 1158(d)(4)(A). See Ivantchouk v. U.S. Attorney Gen.,
417 F. App’x 918, 921-22 (11th Cir. 2011).
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III. The Administrative Procedure Act
The Government argues that the no-show designation was
appropriate because Plaintiff’s attorney did not allow her to
answer threshold issues concerning eligibility. Plaintiff argues
that the question asked for irrelevant, privileged information.
The parties dispute whether Plaintiff’s refusal to answer
questions should have stopped the EAD clock.
The Court need not decide the lawfulness of USCIS’s no-show
designation because the APA bars review of this nonfinal agency
action. The APA allows courts to review certain agency action
and set the action aside if it finds it unlawful. See 5 U.S.C.
§ 706. Only “agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a
court are subject to judicial review.” Id. § 704. Since no
statute specifically permits review of USCIS’s no-show
designation, the Court may only review the designation if it
constitutes final agency action.
To qualify as final, the action “must mark the consummation
of the agency’s decisionmaking process” and either determine
rights or obligations or trigger legal consequences. U.S. Army
Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)
(quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). In
other words, the action must “conclusively determine[] the
rights and obligations of the parties with respect to the
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matters at issue.” Berkshire Envtl. Action Team, Inc. v. Tenn.
Gas Pipeline Co., 851 F.3d 105, 111 (1st Cir. 2017) (quoting
Rhode Island v. EPA, 378 F.3d 19, 23 (1st Cir. 2004)). The
possibility of an agency appeal prevents a decision from being
final when the decision automatically triggers further agency
review according to statute or regulation. See Global Tower
Assets, LLC v. Town of Rome, 810 F.3d 77, 86 (1st Cir. 2016).
The initial no-show designation is simply one step of the
lengthy agency review of an affirmative asylum application. As
described above, if USCIS designates an applicant a no show, she
has 45 days to provide good cause for her absence. USCIS does
not make a final decision on an applicant’s failure to appear
until the 45 days have expired. If she provides an excuse that
USCIS accepts, USCIS will schedule a new interview. If USCIS
rejects her excuse or she does not respond, the agency must
refer her for removal proceedings if she appears removable.
Before the immigration judge, the applicant may demonstrate good
cause for her absence. If she can do so, the immigration judge
will dismiss the proceedings and send her case back to USCIS.
The initial no-show designation Plaintiff challenges here is
therefore not the final decision that USCIS makes on her failure
to appear for the interview, and even USCIS’s ultimate decision
automatically triggers another round of review in immigration
court.
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Plaintiff answers that the no-show designation governs
USCIS’s determination of eligibility for employment
authorization, thus turning it into final agency action. While
it is true that failure to appear for an asylum interview stops
the applicant’s 180-day EAD clock, if the applicant provides
good cause for her failure to appear within 45 days, USCIS will
restart her clock. If she does not, she still has another
opportunity to restart her clock if she can convince the
immigration judge to dismiss her removal proceedings based on
good cause for refusing to answer the questions. Thus, the
initial no-show designation is not the agency’s final word on an
applicant’s eligibility for employment authorization either.
The parties have not cited any caselaw on whether USCIS’s
no-show designation, if contested, is reviewable as final agency
action. Cf. Diallo v. Ashcroft, 381 F.3d 687, 701 (7th Cir.
2004) (declining to decide whether the appellate court had
jurisdiction to review a due process challenge to USCIS’s
decision to designate the asylum applicant a no show). However,
in other situations, courts have found that USCIS’s decision to
deny an adjustment of status application or terminate asylum are
not reviewable final agency action as long as the alien was
referred to immigration court for removal proceedings. See,
e.g., Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 495-47 (6th
Cir. 2014); Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir.
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2011); Cabaccang v. U.S. Citizenship & Immigration Servs., 627
F.3d 1313, 1316-17 (9th Cir. 2010). In such cases, USCIS’s
decision “automatically triggers another stage of decisionmaking” in the immigration court, rendering the decision
nonfinal. Qureshi, 663 F.3d at 781. Similarly, the initial noshow designation Plaintiff challenges here automatically
triggers another round of decisionmaking when USCIS provides 45
days to offer good cause for her failure to appear and then even
another round when USCIS refers the case to immigration court.
That Plaintiff actually did appear for her interview in a
physical sense does not change this analysis because she did not
answer the questions at her interview. Plaintiff characterizes
USCIS’s no-show designation as falsification of government
records. She certainly has a point that the no-show designation
in this instance may be misleading. If an applicant shows up at
a hearing but refuses to answer relevant, non-privileged
questions on the advice of counsel, should she be deemed a no
show? The regulations and Manual do not directly address this
question. USCIS has explained that its computer system has a
limited number of codes to record what occurred at an interview
and that it has chosen to use the no-show designation for any
time the interview cannot proceed due to the fault of the
applicant. While the no-show designation is, on its face, false,
on review, an immigration judge will have the opportunity to
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determine whether a more accurate designation, such as “failure
to answer questions without good cause,” helps Plaintiff’s
situation. Regardless of the designation, her eligibility for
employment authorization has not been finally adjudicated
because the asylum office must issue a referral to the
immigration court.3 Plaintiff’s avenue for challenging what she
believes is an incorrect designation should now be in the
immigration court. The APA does not permit this Court to
circumvent this established agency process and review a nonfinal
decision.
IV.

Mandamus
The Mandamus Act permits courts “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. Mandamus is “an
extraordinary writ reserved for special situations” when “the
agency or official [has] acted (or failed to act) in disregard
of a clear legal duty and . . . there [is] no adequate
conventional means for review.” In re City of Fall River, 470
F.3d 30, 32 (1st Cir. 2006). A court must determine whether a

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According to the Declaration of Meghann Boyle, the Director
of the Boston Asylum Sub-Office at USCIS, after this case was
argued, the agency determined that Plaintiff did not adequately
respond to the 45-day notice to request a new interview. Her EAD
clock is therefore stopped, and she is ineligible for employment
authorization pending her removal proceedings before an
immigration judge.
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“conventional means” is adequate. Id. In the absence of a clear
legal duty, mandamus relief is appropriate “only in the most
egregious of cases.” Morgovsky v. Dep’t of Homeland Sec., 517 F.
Supp. 2d 581, 584 (D. Mass. 2007) (finding that mandamus was not
warranted where USCIS took sixteen months to decide an appeal of
a denial of a naturalization application).
In light of the lack of breach of a clear legal duty in
these circumstances, a writ of mandamus is not warranted.
Neither the statute, regulations, nor Manual clearly demonstrate
that USCIS acted improperly in designating Plaintiff a no show
after her interview, during which she allegedly declined to
answer certain questions that were not obviously privileged or
irrelevant. She has also not shown circumstances egregious
enough for a court to award mandamus relief in the absence of a
clear legal duty.
ORDER
Accordingly, the Court ALLOWS Defendants’ motion to dismiss
(Docket No. 20). Plaintiff’s motion for a preliminary injunction
(Docket No. 10) is DENIED. The Court orders that the Declaration
of Meghann Boyle (Docket No. 30) be unsealed.

SO ORDERED.
/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge
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