Chen v. Garland et al

Filing 11

ORDER: For the reasons described in the accompanying order, the Court dismisses Plaintiff's complaint without prejudice as moot and, alternatively, for failure to prosecute pursuant to Rule 41(b). The Clerk of Court is respectfully directed to enter a judgment dismissing Plaintiff's complaint without prejudice, to close this case, and to mail a copy of this order and the judgment to the pro se Plaintiff. Ordered by Judge Hector Gonzalez on 5/19/2023. (BH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
FANGQIONG CHEN,
Plaintiff,

ORDER
22-CV-07279 (HG)

v.
MERRICK B. GARLAND, et al.,
Defendants.
HECTOR GONZALEZ, United States District Judge:
Plaintiff commenced this case by filing a complaint seeking mandamus relief related to
an application for asylum that she filed with the U.S. Citizenship and Immigration Service
(“USCIS”) nearly seven and a half years ago. ECF No. 1. Defendants previously filed a letter
indicating that USCIS has scheduled an interview with Plaintiff for October 9, 2023, regarding
her application. ECF No. 9. Defendants asserted that since they cannot take any further action
on Plaintiff’s application until the interview occurs, Plaintiff’s complaint is now moot because
Defendants have done everything possible to remedy the delay that triggered Plaintiff’s request
for mandamus in the first place. Id.
The Court previously observed that Plaintiff’s complaint is ambiguous as to whether she
seeks an order compelling USCIS to adjudicate her application or merely an order compelling
USCIS to take some action on her application, such as scheduling an interview with her, so that
the adjudication process can move forward. See ECF Nos. 1, 10. The Court therefore ordered
Plaintiff to file a letter with the Court no later than May 1, 2023, clarifying the nature of the
mandamus relief that she seeks and whether she intends to continue this lawsuit even though
USCIS has sent her an interview notice. ECF No. 10. The Court expressly warned Plaintiff that
her failure timely to file that letter might result in the Court dismissing her case for failure to

prosecute, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Court also
warned Plaintiff that if she failed to file a response, then the Court would likely take under
consideration whether it lacks jurisdiction over her claims.
Plaintiff did not file a submission in response to the Court’s order, and her time to do so
expired more than two weeks ago. In the absence of further guidance from Plaintiff, the Court
interprets her complaint as merely seeking some action on her asylum application, such as
scheduling an interview, rather than a complete adjudication of the application. See ECF No. 1
at 2 (requesting that the Court enter an order to “compel [Defendants] to properly fulfill their
public and statutory duties to overcome the unreasonable delays in a timely manner”). The Court
therefore dismisses Plaintiff’s complaint without prejudice as moot, consistent with at least one
other court in this District that has held that issuing an interview notice moots even a claim
seeking the complete adjudication of a plaintiff’s immigration-related application. See Yusupov
v. Mayorkas, No. 21-cv-4066, 2021 WL 6105720, at *2 (E.D.N.Y. Dec. 23, 2021) (dismissing as
moot complaint for mandamus relief related to application for permanent residence status
because “a decision on the application itself is not necessary to deprive the Court of jurisdiction
on mootness grounds”); see also Wang v. U.S. Citizenship & Immigration Serv., No. 22-cv-149,
2022 WL 17851621, at *2 (E.D.N.Y. Aug. 3, 2022) (dismissing as moot complaint for
mandamus relief related to asylum application filed on behalf of relative). As in those cases,
“[t]his dismissal is without prejudice to further action in the case of future delay that might
satisfy the applicable jurisdictional requirements,” meaning that USCIS’s failure to provide
Plaintiff her scheduled interview may potentially enable Plaintiff to file a new, separate lawsuit
asserting mandamus claims. Wang, 2022 WL 17851621, at *2 n.2; Yusupov, 2021 WL 6105720,

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at *2 n.1. In the alternative, the Court dismisses Plaintiff’s complaint without prejudice for
failure to prosecute, pursuant to Rule 41(b), as warned in the Court’s prior order.
The Clerk of Court is respectfully directed to enter a judgment dismissing Plaintiff’s
complaint without prejudice, to close this case, and to mail a copy of this order and the judgment
to the pro se Plaintiff.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge

Dated: Brooklyn, New York
May 19, 2023

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