LM v. Johnson et al

Filing 35

MEMORANDUM & ORDER: Defendants' 16 motion to dismiss is GRANTED as to all claims except the notice-and-comment claim pertaining to CARRP. With respect to that claim, within fourteen (14) days of the date of entry of this Memorandum and Ord er, the parties are DIRECTED to file a joint letter in which (1) Plaintiffs state whether they are prepared to move forward with the notice-and-comment claim, and (2) the parties propose a schedule for supplemental briefing on the question of whether the notice-and-comment claim should be dismissed for failure to state a claim. So Ordered by Judge Nicholas G. Garaufis on 12/7/2015. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------------)(
L.M., et al.,
Plaintiffs,
MEMORANDUM & ORDER
-against14-CV-3833 (NGG) (VMS)
JEH CHARLES JOHNSON, Secretary,
U.S. Department of Homeland Security, et al.,
Defendants.

---------------------------------------------------------------------)(

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. Comp!. (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)(l) 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.

1

The court previously granted Plaintiffs' request to proceed anonymously. (See June 24, 2014, Order (Dkt. 3).)

I

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. § l 158(a)(l). 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 ... ifthe Secretary of Homeland Security or the Attorney General determines that such
alien is a refugee within the meaning of section l!Ol(a)(42)(A) of[Title 8]." Id.
§ l l 58(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.

§ l 158(d)(5)(A)(ii), (iii). However, Section l 158(d)(7)---entitled "No private right of action"further provides that "[n]othing in [Section l 158(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. § l 158(d)(7).
PlaintiffL.M. is a citizen ofNicaragua who filed for asylum in August 2012 and was
interviewed by USCIS on December 8, 2014. (Am. Comp!. if 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 l 158(d)(5)(A)(ii) or who have
been interviewed but have not received final adjudication within the 180-day timeframe provided
in Section l 158(d)(5)(A)(iii). (Id. if 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. iii! 1, 2.) Additionally, Plaintiffs allege that Defendants' use of a

2

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."

M

'l]'IJ 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. '1]'1] 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
I.

Rule 12(b)(l)

Rule l 2(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 Jack 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)(l) motions may consider evidence outside of the
pleadings. Makarova v. United States, 201F.3d110, 113 (2d Cir. 2000). "Where, as here, the
defendant moves for dismissal under Rule l 2(b)(1 ), as well as on other grounds, the court should

3

consider the Rule l 2(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 (2009) (quoting Bell At!. Coro. v. Twombly, 550 U.S. 544, 570 (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 (quoting Twombly. 550 U.S.
at 556). "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 '[flactual 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).

4

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. Comp!. 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 reliefunder the statute, there must be "(l) 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. Comp!. 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.
§ 70l(a)(l), (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, 191F.3d109, 120 (2d Cir. 1999). Courts also
regularly apply the six factors set forth in Telecommunications Research and Action Center. v.

5

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
delayed. See. e.g., Families for Freedom v. Napolitano, 628 F. Supp. 2d 535, 540
(S.D.N.Y. 2009); Hoo Loo v. Ridge, No. 04-CV-5553 (DLI) (RML), 2007 WL 813000, at *4
(E.D.N.Y. Mar. 14, 2007) ("In cases where the petition is seeking to compel action by
immigration authorities, courts utilize the six-factor test articulated in [TRAC] to determine
whether relief under the AP A is warranted.").
In addition, Plaintiffs seek a declaration that Defendants' promulgation and use of
CARRP violates the APA. (Am. Comp!. at 42.) Plaintiffs allege that CARRP "constitutes a
substantive agency rule within the meaning of5 U.S.C. § 551(4)" and that "Defendants failed to
provide a notice-and-comment period prior to [its] adoption" as required under Section 553 of
the APA.

@,iii! 150, 151.)

The AP A requires that when an agency engages in rulemaking, it must provide public
notice of the proposed rule and an opportunity to comment. 5 U.S.C. § 553(b), (c). 2 However,
Section 553 excludes the notice-and-comment requirement for "interpretative rules, general
statements of policy, or rules of agency organization, procedure, or practice." Id.§ 553(b)(A).
"The APA's notice-and-comment requirements apply only to 'substantive' ... rules."
2

The APA excludes from the public comment provisions instances in which "a military or foreign affairs function
of the United States" is involved. 5 U.S.C. § 553(a)(l); see also Rajah v. Mukasey. 544 F.3d 427, 436-37
(2d Cir. 2008).

6

Time Warner Cable Inc. v. FCC, 729 F.3d 137, 168 (2d Cir. 2013) (quoting Lincoln v. Vigil, 508
U.S. 182, 196 (1993)). "Since the APA itself does not define 'interpretive,' courts have
established several general criteria to distinguish interpretive rules from 'substantive' or
'legislative' rules, which must comply with the AP A's notice and comment provisions." N.Y.
State Elec. & Gas Com. v. Saranac Power Partners. L.P., 267 F.3d 128, 131 (2d Cir. 2001).
Legislative or substantive rules are "those that create new law, right, or duties, in what amounts
to a legislative act," while interpretive rules "do not create rights, but merely clarify an existing
statute or regulation." Id. (internal citations and quotation marks omitted).

D.

Due Process and Equal Protection

Plaintiffs also allege violations of the Due Process and Equal Protection Clauses of the
United States Constitution. The Fifth Amendment provides that "no person shall ... be deprived
of life, liberty, or property, without due process of law." U.S. Const. amend. V. The Fourteenth
Amendment provides that no State shall "deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws." U.S. Const. amend. XIV, § I.
An alien seeking initial admission to the United States requests a privilege and has no

constitutional rights regarding his application. Landon v. Plasenci;i, 459 U.S. 21, 32 (1982);
Ofosu v. McElroy, 98 F.3d 694, 700 (2d Cir. 1996) ("An alien has no constitutional right to
initial admission to the United States."). However, once an alien has entered the country, either
lawfully or unlawfully, "the legal circumstances change." Zadvydas v. Davis, 533 U.S. 678, 693
(200 I). Aliens are entitled to due process and "must be afforded the opportunity to be heard at a
meaningful time and in a meaningful manner." Burger v. Gonzales, 498 F.3d 131, 134
(2d Cir. 2007) (internal citations and quotation marks omitted). Similarly, the Equal Protection

7

Clause of the Fourteenth Amendment is not limited to citizens and applies "to all persons within
the territorial jurisdiction" of the United States. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

E.

Pesantez v. Johnson

The parties have directed the court's attention to Pesantez v. Johnson, No. 15-CV-1155
(BMC), 2015 WL 5475655 (E.D.N.Y. Sept. 16, 2015). In Pesantez, the plaintiffs were asylum
applicants who alleged that their applications filed pursuant to the INA had been improperly and
unreasonably delayed and sought relief pursuant to the Mandamus Act and the AP A, like
Plaintiffs here. See 2015 WL 5475655, at *1.
The court granted the defendants' motion to dismiss. First, the court denied the request
for mandamus relief on the ground that Section l 158(d)(7) of the INA expressly disclaims a
private right of action. Id. at •2. In doing so, the court noted that the plaintiffs cited no authority
to support their position that they were entitled to mandamus relief to compel compliance with
the deadlines imposed by Section l 158(d)(5)(A)(ii) and (iii). The court explained that it was
"beyond serious dispute that mandamus pursuant to Section 1361 is unavailable to compel
compliance with a statutory obligation when the underlying statute expressly disclaims a private
right of action." Id.
Next, the court denied the plaintiffs' request for relief pursuant to the APA on the ground
that granting the plaintiffs the relief they sought would only function to move the plaintiffs "to
the front of the line" and "any broader mitigation of the harm done by the backlog of asylum
adjudications in this country" would not be accomplished. Id. at *6. The court explained that
although the plaintiffs' situation was not "ideal," "[j]udicial intervention in [the] case would
necessarily involve an intrusion into the defendants' allocation of adjudicatory resources on the
whole, and that is something [the] Court is 'institutionally ill-equipped to do."' Id. (quoting Los

8

Coyotes Bands ofCahuilla & Cupeno Indians v. Jewell, 729 F.3d 1025, 1038 (9th Cir. 2013)).
Although the court declined to find that the plaintiffs were entitled to relief under the APA, the
court also made clear that it was not holding "that the APA is inapplicable to the instant case,"
and clarified that the "decision should not be read as holding that relief in this Court would never
be available to an asylee facing a delayed adjudication." Id. at *5. Nonetheless, absent a clear
showing that the plaintiffs had "suffered disparate treatment" or had been relegated to
administrative "limbo," the court could not find that the delay was unreasonable. Id. at *6.
Although the present action is similar to Pesantez in that both groups of plaintiffs seek
relief pursuant to the Mandamus Act and the AP A against the same federal officers, the present
action is distinguishable in that Plaintiffs here proffer additional causes of action. First, Plaintiffs
in this action allege that Defendants have violated the APA not only by unreasonably delaying
adjudication of their asylum applications, but also by failing to comply with the notice-andcomment provisions in promulgating CARRP. Second, Plaintiffs in the present action allege
constitutional violations in addition to their claims under the INA and the APA. Thus, while
educative, the Pesantez decision does not squarely address all of the issues in the present action.

III.

DISCUSSION
A.

The Mandamus Act

The court agrees with Pesantez and the other persuasive authorities cited below that
mandamus relief is unavailable in this action. Section l 158(d)(7) of the INA plainly states that
"[n]othing in [Section l 158(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." 8 U.S.C. § 1158(d)(7). The Mandamus Act authorizes the court
"to compel an officer or employee of the United States or any agency thereof to perform a duty

9

owed to the plaintiff." 28 U.S.C. § 1361 (emphasis added). Here, Section l 158(d)(7) precludes
mandamus relief by providing that "nothing in [Section l 158(d)]," including the 45- and 180day timeframes contained in Section l 158(d)(5)(A)(ii) and (iii), creates any legally enforceable
right or benefit against any officer of the United States or any agency.
In addition to Pesantez, other courts have reached the same conclusion. In Ivantchouk v.
Attorney General, for example, the Eleventh Circuit construed the INA as the court does here
and concluded that "[n]othing in Section l 158(d) creates a private right of action against the
government." 417 F. App'x 918, 921 (11th Cir. 2011) (per curiam). Similarly, in Gjeluci v.
Chertoff, a district court held that pursuant to Section 115 8(d)(7), the plaintiff failed to articulate
a 'clear nondiscretionary duty' owed by the defendants .... " No. 05-CV-72451, 2005

WL 1801989, at *4 (E.D. Mich. July 27, 2005); see also. e.g., Najeh v. Raufer, No. 15-CV-4217
(E.D. Pa. Nov. 2, 2015) (Dkt. 12) (citing 8 U.S.C. § l 158(d)(7) and dismissing the plaintiff's
action).
Plaintiffs make three counterarguments: (1) Congress did not intend Section l 158(d)(7)
to be a jurisdiction-stripping provision (Pis.' Mem. of Law in Opp'n to Defs.' Mot. to Dismiss

("Pis.' Mem.") (Dkt. 17) at 17-19); (2) Plaintiffs are not seeking to enforce a right of benefit
@at 23); and (3) the timeframes contained in Section 1158(d)(5)(A)(ii) and (iii) are mandatory,
and therefore Defendants are under a nondiscretionary duty to adjudicate Plaintiffs' asylum
applications @at 20, 24). The court considers each argument in tum.
I.

Jurisdiction-Stripping Provision

Plaintiffs contend that Section l 158(d)(7) is not a jurisdiction-stripping provision on two
grounds: (1) the "well-settled" proposition that immigration statutes "should be interpreted to
favor judicial review of administrative action"@ at 17); and (2) the INA is "replete" with other

10

jurisdiction-stripping provisions, but Congress "deliberately" used different language in
Section l 158(d)(7)@, at 17, 18).
Plaintiffs are correct that the presumption favoring judicial review of administrative
action is well-settled and that it has been applied to legislation concerning immigration.
See, e.g., Kucana v. Holder, 558 U.S. 233, 251 (2010). Indeed, the Court in Kucana noted that it
is assumed that Congress legislates with knowledge of this presumption. Id. at 252. But it is
also true that "the presumption favoring judicial review [is] overcome []whenever the
congressional intent to preclude judicial review is 'fairly discernible in the statutory scheme."'
Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984) (quoting Ass'n of Data Processing
Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 157 (1970)).
Plaintiffs are correct that unlike other sections of the INA, which specifically preclude
judicial review of a determination made by the Attorney General, see, e.g., 8 U.S.C. § l 158(a)(3)
("No court shall have jurisdiction to review any determination of the Attorney General under
paragraph (2)."), Section l 158(d)(7) merely states that the asylum-related timeframes contained
within the INA are not legally enforceable rights. In other words, while Section 1158(d)(7) does
not strip this court of subject matter jurisdiction or preclude judicial review, it does make clear
that Plaintiffs do not have a private right of action under the INA itsel£ Accordingly, Plaintiffs
are permitted to raise their claim in this court, but the INA provides them no relief, since it does
not provide them with rights enforceable via mandamus. And for the reasons discussed
elsewhere in this Memorandum and Order, nor do the APA (with respect to Plaintiffs'
unreasonable delay claims) or the Constitution itself.

11

2.

Right or Benefit

Plaintiffs next argue that they "are not suing to enforce a right or benefit" against
Defendants. (Pis.' Mem. at 23.) Instead, they argue that "they are asking for USCIS to be
directed to adjudicate their asylum applications according to the proscribed [sic] statutory
procedures" and that this is "most definitely not precluded by [Section 1158(d)(7)]." (Id.)
Referring to Section J 158(d)(5)(A)(ii) and (iii) in conjunction with Section 1158(d)(7), Plaintiffs
contend that the "only way to reconcile the two provisions is to construe this action as not being
one for a substantive right of benefit." (Id. at 14.)
To be entitled to mandamus relief, there must be, among other things, "a clear right to the
relief sought .... " Benzman v. Whitman, 523 F.3d 119, 133 (2d Cir. 2008). Section 1158(d)(7)
plainly states that the 45- and 180- day timeframes are not to be construed as creating any right
that is enforceable against the United States, its agencies, or its officers. Simply put, Congress
has expressly barred Plaintiffs from claiming any legally enforceable right to have their
applications adjudicated within the provided tirneframes. The court therefore agrees with
Pesantez that it is "beyond serious dispute that mandamus pursuant to§ 1361 is unavailable to
compel compliance with a statutory obligation when the underlying statute expressly disclaims a
private right of action." Pesantez, 2015 WL 5475655, at *2. Even ifthe court were to accept
Plaintiffs' strained argument that they are not seeking to enforce a right or benefit, that in itself
would bar mandamus relief. Plaintiffs cannot seek mandamus relief, which requires "a clear
right to the relief sought," and at the same time assert that they are not seeking to enforce any
right. In other words, by asking the court to compel Defendants to timely schedule an interview
and to timely adjudicate their applications (and leaving to Defendants whether ultimately to grant
the applications), Plaintiffs are, in fact, seeking to enforce purported rights or benefits, even if

12

they are not going the final step and asking the court to compel Defendants to grant the asylum
applications.
3.

Mandatory Timeframes and Nondiscretionarv Duty

Finally, Plaintiffs contend that reading Section l 158(d)(7) to preclude the present action
would render the timeframes listed in Section l 158(d)(S)(A)(ii) and (iii) "unenforceable and
superfluous." (Pis.' Mem. at 20.) Plaintiffs argue that the use of the word "shall" means that
Congress intended the timeframes to be mandatory and that the rules of statutory construction
prohibit the conclusion that Section l 158(d)(7) precludes the enforcement of those timeframes.
(Id. at 20-21.) The court is not persuaded. As a threshold matter, notwithstanding Congress's
use of the word "shall," Plaintiffs' argument again ignores that a specific subsection of the INA
expressly provides that the timeframes included in the statute are not substantive or procedural
rights or benefits.
In addition, the Second Circuit has explained that "[a] statutory time period is not
mandatory unless it both expressly requires an agency or public official to act within a particular
time period and specifies a consequence for failure to comply with the provision." St. Regis
Mohawk Tribe v. Brock, 769 F.2d 37, 41 (2d Cir. 1985) (emphases in original) (quoting Fort
Worth Nat'! Com. v. Fed. Savings & Loan Ins. Com., 469 F.2d 47, 58 (5th Cir. 1972)). "The
legislature will not be deemed to have departed from this policy unless it clearly says so." Id.
at 42. The Supreme Court has reached a similar conclusion, explaining that "if a statute does not
specify a consequence for noncompliance with statutory timing provisions, the federal courts
will not in the ordinary course impose their own coercive sanction." United States v. James
Daniel Good Real Prop., 510 U.S. 43, 63 (1993) (citing, inter alia, St. Regis, 769 F.2d at 41). In
James Daniel, for example, the Supreme Court held that Congress's failure to specify a

13

consequence for noncompliance with the timing requirements of the statute at issue "implies that
Congress intended the responsible officials administering the Act to have discretion to determine
what disciplinary measures are appropriate when their subordinates fail to discharge their
statutory duties." Id. at 64-65.
Plaintiffs attempt to distinguish the Second Circuit's decision in St. Regis on factual
grounds and contend that the case "did not suggest, and there is no support for the proposition,
that a statutory time frame is always unenforceable unless Congress specifies a penalty for non-

compliance." (Pis.' Mem. at 26.) In St. Regis, the court dismissed the plaintiffs petition to
review an Administrative Law Judge's order directing the plaintiff to repay disallowed
expenditures on the grounds that the final determination of the grant officer had been made after
the 120-day timeframe provided in Section 106(b) of the Comprehensive Employment and
Training Act. 769 F.2d at 40. Section 106(b) provided that an investigation "shall" be
conducted and a final determination "shall" be made "not later than 120 days after receiving the
complaint." Id. The plaintiff argued that the agency had failed to issue a final determination
within 120 days pursuant to the statute, and that reading the statute to allow further government
action where the government failed to meet the 120-day deadline would be "inconsistent with
Congress' use of the verb 'shall'" and "would render the 120-day deadline unenforceable and
hence meaningless." Id. at 41.
Plaintiffs are correct that the circumstances in St. Regis and the present case differ in
certain respects. In St Regis, the plaintiff was attempting to bar the government from acting
because it had missed the 120-day statutory timeframe, while here, Plaintiffs seek an order from
the court directing Defendants to act after their failure to do so within the statutory timeframes.
But contrary to Plaintiffs' contention, that factual distinction does not render St. Regis or its

14

analysis inapplicable to the present action. Both St. Regis and James Daniel use broad language
that is not solely applicable to situations where the plaintiff is arguing that the government is
barred from acting. The court in St. Regis characterized the standard as a "general rule" that a
timeframe is not mandatory unless it both expressly requires action within a particular timeframe
and specifies a consequence for failure to act. Id. That general rule is applicable here.
The court also disagrees with Plaintiffs that this reading renders the timeframes provided
in Section l 158(d)(5)(A)(ii) and (iii) "superfluous." (Pis.' Mem. at 20.) As the Supreme Court
in James Daniel recognized, statutory timeframes without specified consequences may "impl[y]
that Congress intended the responsible officials administering the [statute] to have discretion to
determine what disciplinary measures are appropriate when their subordinates fail to discharge
their statutory duties." 510 U.S. at 64. The lack of specific statutory consequences combined
with the plain language of Section 115 8(d)(7) indicate that Congress did not intend for asylum
applicants to utilize a civil action in federal court to seek the Government's compliance with
the INA's 45- and 180- day timeframes. The court again empathizes with Plaintiffs, and urges
Defendants and their agencies to take meaningful actions to reduce the current backlog in the
adjudication of asylum applications filed by individuals such as Plaintiffs-who are not UACs. 3
But, unfortunately for Plaintiffs, the court does not have the power to compel such a result under
the Mandamus Act.
B.

Administrative Procedure Act

Plaintiffs bring two claims under the APA: (1) Defendants' failure timely to adjudicate
Plaintiffs' asylum applications constitutes unreasonable delay in violation of Section 706 of the
3

Before filing their motion to dismiss, Defendants appear to have engaged in substantial settlement discussions
with Plaintiffs' counsel. (See. e.g., Defs.' Ltr.-Mot. for Ext'n in Time to Answer (Dkt. 9) at I ("This time period is
needed by the parties to attempt to resolve this matter without litigation. And to this end, the parties continue to
work diligently together.").) The court encourages the parties to continue to work together to address the current
backlog in asylum applications.

15

APA (Am. Comp!. if 144), and (2) Defendants promulgated CARRP without providing a noticeand-comment period in violation of Section 553 of the APA fuk if 152).
1.

Section 706 of the APA: Unreasonable Delay

Plaintiffs contend that Defendants have violated Section 706 of the AP A by failing to
adjudicate asylum applications within a reasonable period of time. @,_if 144.) 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). It 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 the "statutes preclude judicial review" or the
"agency action is committed to agency discretion by law." Id.§ 70l(a)(l), (2). Thus, the "only
agency action that can be compelled under the APA is action legally required." Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 63 (2004) (emphasis in original).
It is worth reiterating that the court in Pesantez did not "hold that the APA [was]
inapplicable to the instant case." Pesantez, 2015 WL 5475655, at *5. Rather, the court found
that "it [did] not seem ... that by moving [the plaintiff] to the front of the line, any broader
mitigation of the harm done by the backlog of asylum adjudications in this country will be
accomplished." Id. at *6. The court also declined to conclude that "USCIS enjoys 'unfettered
discretion to relegate aliens to a state oflimbo, leaving them to languish there indefinitely' .... "
Id. at *5 (quoting Kim v. Ashcroft, 340 F. Supp. 2d 384, 393 (S.D.N.Y. 2004)). In Kim, the
court held that the plaintiff's complaint seeking to compel adjudication of his application for an
adjustment of immigration status, which had been delayed for around 40 months, survived the
defendants' motion to dismiss. 340 F. Supp. 2d at 386. Although the court noted that the
decision whether to grant or deny an adjustment application was wholly discretionary, id. at 389,

16

it also held that "defendants' failure to take any action runs afoul of section 555(b) [of the
APA]," id. at 393.
While again empathizing with Plaintiffs' position, the court concludes that relief under
Section 706 of the APA is unavailable in the present case. "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, 191 F.3d at 120.
Additionally, courts routinely apply the TRAC factors. The D.C. Circuit has further found it is
appropriate to "refuse[] to grant relief, even though all the other factors considered in TRAC
favor[] it, where a judicial order putting the petitioner at the head of the queue would simply
move all others back one space and produce no net gain." Mashpee Wampanoag Tribal Council,
Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (internal citation and quotation marks
omitted).
Plaintiffs allege a backlog of asylum applications that "has grown from 51,000 to 82,000,
and the minimum wait time for an initial interview on an asylum case is now about two years."
(Am. Comp!. ii 1.) Plaintiffs provide data indicating that the number of asylum cases filed in

January 2012 was 3,341, while the number of cases filed in January 2015 was 6,099. (Id. ii 58.)
Plaintiffs also allege that Defendants "give near-exclusive priority to asylum cases involving
UACs at the expense of backlogged cases that have been pending for years without interview."
(kl ii62.)
As the court in Pesantez recognized, "[j]udicial intervention in this case would
necessarily involve an intrusion into the defendants' allocation of adjudicatory resources on the
whole, and that is something that [the] Court is 'institutionally ill-equipped to do."' 2015
WL 5475655, at *6 (quoting Los Coyotes, 729 F.3d at 1038). Similarly, the Fourth Circuit has

17

recognized that in dealing with a "backlog of tens of thousands of cases," the agency charged
with handling asylum applications "operates in an environment of limited resources, and how it
allocates these resources to address the burden of increasing claims is a calculation that courts
should be loathe to second guess." Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 280
(4th Cir. 2004). In light of these principles, the court holds that Plaintiffs have failed adequately
to allege that Defendants' actions in addressing the recent influx of asylum applications are
unreasonable under the APA. 4
Assuming as true the allegations and information provided in the Amended Complaint,
Plaintiffs' contention that the delays are unreasonable fails as a matter oflaw. As indicated by
the data provided by Plaintiffs, the number of asylum applications filed every month in the
United States has soared in recent years. (Am. Comp!. if 58.) For example, Plaintiffs recently
provided the court with supplemental users data showing that the number of asylum
applications filed just in June 2015 surpassed 8,300, significantly more than in prior years. (See
Pis.' Ltr. (Dkt. 23), Ex. B (Dkt. 23-2).) This number represents more than twice as many asylum
applications than were filed in June 2012 and June 2013 (4,115 and 3,957, respectively), and
over 2,600 more than were filed in June 2014 (5,618). (Am. Comp!. if 58.) It is not
unreasonable for delays to occur and a backlog to develop where an agency with limited
resources is attempting to adjudicate an ever-increasing number of applications, or for the

4

Defendants and Plaintiffs devote portions of their reply and sur-reply memoranda to addressing whether this
action presents a nonjusticiable political question. The court does not reach this issue.

In addition, Plaintiffs argue that they do not seek to be moved to the "front of the line," thereby sending other
applicants back, but rather, seek a system in which applications are adjudicated in the order they are filed, without
any prioritization or delays based on the type of applicant. In other words, Plaintiffs seek to "restore[] some basic
fairness to an adjudicative system that currently lacks any." (Pis.' Dec. 4, 2015, Ltr. (Dkt. 34) at I.) The court
understands Plaintiffs' argument, and therefore does not rely on the rationale that ordering reliefhere would
necessarily "move" other applicants back by moving Plaintiffs to the front of the line. However, the fact that the
system includes various forms of prioritization and delay does not mean that it lacks basic fairness, nor does it
entitle Plaintiffs to relief under the APA.

18

administration to prioritize the interview and adjudication of asylum applications filed by UACs.
While two years of delay is not insubstantial, the court cannot find, as a matter of law, that
Plaintiffs have alleged facts that would entitle them to the relief requested under the AP A.
See, e.g., Saleh v. Ridge, 367 F. Supp. 2d 508, 513 (S.D.N.Y. 2005)(finding that a five-year
delay in adjustment of asylum status was not unreasonable given the limited number of available
adjustments and the volume of applications in the system).
2.

Section 553 of the APA: Notice and Comment

Plaintiffs allege that Defendants promulgated CARRP in violation of Section 553 of the
APA. Plaintiffs contend that CARRP "constitutes a substantive agency rule within the meaning
of 5 U.S.C. § 551 (4)" and that "Defendants failed to provide a notice-and-comment period prior
to" its adoption. (Am. Comp!.

'lf'll 150, 151.)

Plaintiffs claim that CARRP was established in

a 2008 memorandum as "a procedure for processing and adjudication of immigration
applications, including asylum cases, that raise 'national security concerns' as that term is
uniquely defined in the memo." ili!,. 'If 42.) Although Plaintiffs acknowledge that the INA
requires Defendants to perform background checks to determine eligibility for asylum, they
allege that Defendants "use CARRP to establish wider grounds of ineligibility, higher standards
of proof, and differential treatment of claims filed by people who fit a particular ethnic, religious
or national profile .... " (Id.

'If 43.)

Defendants counter by asserting that "CARRP is part of the

agency procedure and practice that is exempted from the APA's notice and comment
provisions." (Defs.' Mem. of Law in Supp. of Mot. to Dismiss (Dkt. 16) at 18.)
The APA provides that general notice of proposed rulemaking shall be given and that an
opportunity to participate in the rulemaking shall be provided. 5 U.S.C. § 553(b), (c).
Section 553 excludes the notice-and-comment provisions for "interpretative rules, general

19

statements of policy, or rules of agency organization, procedure, or practice." Id. § 553(b )(A).
Under Section 551, a "rule" is defined as "the whole or a part of an agency statement of general
or particular applicability and future effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice requirements of an agency .... " Id.
§ 551(4).
"The APA's notice-and-comment requirements apply only to 'substantive' ... rules."
Time Warner Cable, 729 F.3d at 168 (quoting Lincoln, 508 U.S. at 196). When determining
whether an agency action is subject to the notice-and-comment exemption under Section 553, the
court looks not to labels given by the agency, but rather to the nature of the impact of the agency
action. See Lewis-Mota v. Sec'y of Labor, 469 F.2d 478, 481-482 (2d Cir. 1972) ("[T]he label
that the particular agency puts upon its given exercise of administrative power is not, for our
purposes, conclusive; rather it is what the agency does in fact."). Substantive rules create new
law, rights, or duties, whereas procedural rules do not alter the rights or interests of parties,
although they may alter the manner in which the parties present themselves or their viewpoints to
the agency. Time Warner Cable, 729 F.3d at 168. Generally, "notice and comment is required if
the rule makes a substantive impact on the rights and duties of the person subject to regulation."
Aluminum Co. of Arn. v. FTC, 589 F. Supp. 169, 178 (S.D.N.Y. 1984). If there is no substantive
impact, the administrative action is exempt from Section 553. Id. (citing Pickus v. U.S. Bd. of
Parole, 507 F.2d 1107, 1112 (D.C. Cir. 1974); Lewis-Mota, 469 F.2d at 481)). Rules are
"generally considered procedural so long as they do not 'change the substantive standards by
which the [agency] evaluates' applications which seek a benefit that the agency has the power to
provide." Nat'! Sec. Counselors v. CIA, 931 F. Supp. 2d 77, 107 (D.D.C. 2013) (quoting JEM
Broad. Co. v. FCC, 22 F.3d 320, 327 (D.C. Cir. 1994) (emphasis in original)).

20

The INA mandates that "a procedure for the consideration of asylum applications" shall
be established. 8 U.S.C. § l 158(d)(l). Next, the statute requires that the procedure established
under Section l 158(d)(l) shall provide that "asylum cannot be granted until the identity of the
applicant has been checked against all appropriate records or databases maintained by the
Attorney General and by the Secretary of State ... to determine any grounds on which the alien
may be inadmissible to or deportable from the United States, or ineligible to apply for or be
granted asylum." Id.§ l 158(d)(5)(A)(i). Aliens are not eligible for asylum when "there are
reasonable grounds for regarding the alien as a danger to the security of the United States," id.
§ l l 58(b)(2)(A)(iv), or where the alien is described in subclauses (I), (II), (III), (IV), or (VI) of
Section l 182(a)(3)(B)(i), all of which describe certain terrorist activities. 5 See id.
§ ll 58(b)(2)(A).
Plaintiffs devote significant effort attempting to explain how CARRP operates and allege
that Defendants "use CARRP to establish wider grounds of ineligibility, higher standards of
proof, and differential treatment of claims filed by people who fit a particular ethnic, religious or
national profile, as the overwhelming majority of CARRP-affected asylum cases involve
applicants from Arabic, Muslim and/or Middle Eastern Countries." (Am. Comp!. if 43.)
Plaintiffs assert that CARRP does not "dovetail or coincide" with the grounds enumerated in
Section l l 58(b)(2)(A) and that CARRP effectively "creates two different substantive regimes for
adjudication of asylum cases" that ultimately results in "extraordinary processing and
adjudication delays," "pretextual denials," and "unequal treatment." (Id. iii! 54-56.)
The court lacks an adequate basis from the parties' briefing to determine whether
Plaintiffs have adequately alleged that CARRP was promulgated in violation of Section 553 of
5

The parties do not address the AP A's notice-and-comment exclusion for instances in which ''a military or foreign
affairs function of the United States" is involved. 5 U.S.C. § 553(a)(l); see also Rajah v. Mukasey, 544 F.3d 427,
436-37 (2d Cir. 2008).

21

the APA. It may be that Defendants can show that, as alleged, CARRP does not require notice
and comment, and indeed they have requested an opportunity to file supplemental briefing on the
issue. (See Defs.' Reply Mem. of Law in Supp. of Mot. to Dismiss (Dkt. 18) at 2-3 n.2.) In
addition, as the court is dismissing all of Plaintiffs' other claims, it is not clear whether Plaintiffs
are prepared to move forward with an action premised solely on a notice-and-comment claim
under the APA. Accordingly, the court holds in abeyance Defendants' motion to dismiss the
notice-and-comment claim. Within fourteen (14) days of the date of entry of this Memorandum
and Order, the parties are DIRECTED to file a joint letter in which (I) Plaintiffs state whether
they are prepared to move forward with only the notice-and-comment claim, and (2) the parties
propose a schedule for supplemental briefing on the question of whether the notice-and-comment
claim should be dismissed for failure to state a claim.

C.

Due Process and Equal Protection Claims

Plaintiffs have also alleged that "Defendants' failure to interview Plaintiffs' and the class'
asylum applications, in the manner and for the periods of time complained of (typically,
requiring them to wait for up to two years for an initial interview, and often for additional
months if not years after that for a decision), ... violates the Due Process and Equal Protection
clauses of the US [C]onstitution .... " (Am. Comp!. if 144.) Plaintiffs argue that "extreme
delays, and arbitrary and unequal treatment of Plaintiffs [sic] cases" violate the Due Process
Clause and that "Defendants' exclusive prioritizing of entire classes of asylum cases, including
childrens' [sic] asylum cases," violates the Equal Protection Clause. (Pis.' Mem. at 7.)

I.

Due Process

Aliens within the country "are entitled to due process" and "must be afforded the
opportunity to be heard at a meaningful time and in a meaningful manner." Burger, 498 F.3d

22

at 134 (internal citations and quotation marks omitted). "Parties claiming denial of due process
in immigration cases must, in order to prevail, allege some cognizable prejudice fairly
attributable to the challenged process." Garcia-Villega v. Mukasey, 531F.3d141, 149
(2d Cir. 2008) (internal citation and quotation marks omitted).
The Second Circuit has previously considered lengthy delays and due process questions
in the immigration context. In Arostegui v. Holder, 368 F. App'x. 169, 171 (2d Cir. 2010)
(summary order), for example, the court considered a plaintiff's argument that OHS violated his
due process rights by failing to initiate removal proceedings for nearly five years. The court held
that the plaintiff failed to allege that he suffered any prejudice and that the delay allowed him to
stay in the country for an additional five years, and that reliance on the delay when "arranging
his affairs" was "too tenuous to be persuasive." Id. at 172. In addition, the Sixth Circuit has
squarely rejected a due process challenge to a delay in adjudicating an asylum proceeding. In
Vang v. Gonzales, 237 F. App'x 24, 31 (6th Cir. 2007) (unpublished), the court considered the
argument that the Government's fourteen-year delay in completing the plaintiffs' asylum
proceedings deprived them of due process. The court rejected the plaintiffs' reliance on the 45day timeframe set out in Section l 158(d)(5)(A)(ii) by pointing to the plain language of
Section l 158(d)(7) ("Nothing in this subsection shall be construed to create any substantial or
procedural right or benefit that is legally enforceable by any party against the United States or its
agencies or officers .... "),and its prior precedent that recognized that the Government's delay
in scheduling or conducting immigration proceedings does not violate due process. Id.; see also
Elia v. Gonzales, 431 F.3d 268, 275-76 (6th Cir. 2005) (no procedural or substantive due process
violation for five-year delay in granting deportation hearing).

23

The court concludes that Plaintiffs have failed adequately to allege a due process
violation. First, Section 1158(d)(7) explicitly disclaims the creation of any enforceable
"substantive or procedural right or benefit." Accordingly, Plaintiffs have suffered no cognizable
deprivation of rights. Second, courts that have considered delays in the immigration context that
far surpass the two-year delays alleged by Plaintiffs have rejected due process claims. See, e.g.,
Arostegui, 368 F. App'x at 172 (five-year delay not a violation of due process); Vang, 237 F.
App'x at 31 (fourteen-year delay not a violation of due process); Mudric v. Attorney Gen., 469
F.3d 94, 99 (3d Cir. 2006) (no due process violation for four-year delay in processing asylum
application because "federal immigration laws do not vest in aliens a constitutional right to have
their immigration matters adjudicated in the most expeditious manner possible"); Elia, 431 F.3d
at 275-76 (five-year delay not a violation of due process). Therefore, Plaintiffs have failed
adequately to allege that they are entitled to relief on this claim.
2.

Equal Protection

The Supreme Court has made it clear that equal protection "applies to aliens, for
' [w]hatever his status under the immigration laws, an alien is surely a person in any ordinary
sense of that term."' Jean v. Nelson, 472 U.S. 846, 875 (1985) (quoting Plyler v. Doe, 457
U.S. 202, 210 (1982)). Classifications in the immigration context are subject to rational basis
review. Domond v. INS, 244 F.3d 81, 87 (2d Cir. 2001) ("Distinctions between different groups
of aliens are subject to rational basis review."); Aguilar De Polanio v. Dep't of Justice, 398 F.3d
199, 203 (2d Cir. 2005) ("[A]ny rational justification will suffice to uphold a classification under
the immigration laws."). "Distinctions on the basis of nationality may be drawn in the
immigration field by the Congress or the Executive and must be upheld so long as they are not
wholly irrational." Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (alterations removed)

24

(quoting Narenii v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979)). Where rational basis review
applies, "the burden is ultimately on the plaintiff to negate 'every conceivable basis which might
support the state's action, whether or not the basis has a foundation in the record."' Immaculate
Heart Cent. Sch. v. N.Y. State Pub. High Sch. Athletic Ass'n, 797 F. Supp. 2d 204, 210
(N.D.N.Y. 2011) (quoting Smith v. Defendant A, 2009 WL 1514590, at *4 (S.D.N.Y.
May 29, 2009) (quoting Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 108 (2d Cir. 2008)).
"When neither the complaint nor the non-moving party's opposition negate 'any reasonably
conceivable state of facts that could provide a rational basis' for the challenged classification, a
defendant's motion to dismiss an equal protection claim will be granted." Id. at 211 (quoting
Sullivan v. Citv ofNew York, No. 08-CV-7294 (LTS) (MHD), 2011WL1239755, at *4-5
(S.D.N.Y. Mar. 25, 2011)).
Plaintiffs offer no grounds that plausibly indicate a lack of any rational basis for
Defendants' classifications among asylum applications. Indeed, Defendants have made an
adequate showing that the administration's prioritization of applications filed by UACs and its
handling of applications under the CARRP program satisfy rational basis review. Thus,
Plaintiffs' conclusory allegation of an Equal Protection violation cannot withstand Defendants'
motion to dismiss.

IV.

CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss is GRANTED as to all

claims except the notice-and-comment claim pertaining to CARRP. With respect to that claim,
within fourteen (14) days of the date of entry of this Memorandum and Order, the parties are
DIRECTED to file a joint letter in which (I) Plaintiffs state whether they are prepared to move
forward with the notice-and-comment claim, and (2) the parties propose a schedule for

25

supplemental briefing on the question of whether the notice-and-comment claim should be
dismissed for failure to state a claim.
SO ORDERED.

s/Nicholas G. Garaufis
Ni"CHOLAS G. GARAUFI~ •

Dated: Brooklyn, New York
December~, 2015

United States District Judge

26