Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Xu v. Cissna

United States District Court, S.D. New York

January 16, 2020

FANGFANG XU, Plaintiff,
L. FRANCIS CISSNA, Director of U.S. Citizenship and Immigration Services, KIRSTJEN NIELSEN, Secretary U.S. Department of Homeland Security, THOMAS CIOPPA, District Director of U.S. Citizenship and Immigration Services, Defendants.



         Plaintiff Fangfang Xu, a citizen of the People's Republic of China, applied for asylum here in 2015. Her application has not been adjudicated and remains pending. Plaintiff initiated this suit against L. Francis Cissna, the former Director of the United States Citizenship and Immigration Services (the “USCIS”); Kirstjen Nielsen, the former Secretary of the United States Department of Homeland Security; and Thomas Cioppa, a District Director of USCIS (together, “Defendants”), alleging that Defendants have failed to adjudicate Plaintiff's asylum application within a reasonable period of time.[1] In consequence, Plaintiff brings claims under the Administrative Procedure Act (the “APA”), codified in relevant part at 5 U.S.C. §§ 555(b), 706(2)(A), 8706(1); the Mandamus Act, 28 U.S.C. § 1361; the Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1158(d); the Declaratory Judgment Act, 28 U.S.C. § 2201; and the Fifth Amendment to the United States Constitution. Plaintiff requests, inter alia, that this Court (i) declare that Defendants' failure to adjudicate her asylum application violates statutory and constitutional law; and (ii) compel Defendants to take all appropriate actions to adjudicate Plaintiff's asylum application without further delay.

         Pending before the Court is Defendants' motion to dismiss Plaintiff's Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In resolving this motion, the Court in no way minimizes Plaintiff's concerns about the Defendants' protracted review of her asylum application or her interest in having that application adjudicated in a timely manner. Put somewhat differently, while the Court is constrained to accept many of Defendants' legal arguments, it does not find Defendants' proffered explanations for the delay in processing Plaintiff's application to be wholly satisfactory. That said, for the reasons that follow, Defendants' motion to dismiss is granted in full.


         A. Statutory Background

         The INA permits any alien “who is physically present in the United States or who arrives in the United States … irrespective of such alien's status, ” to apply for asylum in this country, subject to certain exceptions not relevant here. 8 U.S.C. § 1158(a)(1), (2). 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, in turn, 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, § 1158(d)(7) - entitled “No private right of action” - expressly provides that “[n]othing in [§ 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).

         B. Factual Background[2]

         Plaintiff, a citizen of the People's Republic of China, came to the United States and applied for asylum. (Compl. ¶ 13). Plaintiff's application was received by USCIS on December 29, 2015. (Id. at ¶ 14). Plaintiff received a letter from USCIS, requesting that she have her biometrics taken by USCIS between January 1 and 15, 2016. (Id. at ¶ 15). As of the filing of this suit, more than three years after Plaintiff had filed her application for asylum, USCIS's case status website listed Plaintiff's application as “still pending.” (Id. at ¶¶ 16, 18). The Court takes judicial notice of the fact that, since the filing of the Complaint, Plaintiff's application status has changed from “pending” (id., Ex. C), to waiting for an interview to be scheduled. See Case Status Online, (last visited January 14, 2020).

         According to Plaintiff, Defendants have all the information required to resolve her application, but have failed to do so. (Compl. ¶ 19). More pointedly, Plaintiff complains that Defendants' delay in addressing Plaintiff's application is caused in part by USCIS's adoption of a “last in, first out” rule in adjudicating asylum applications, whereby the most recently filed applications will be addressed by USCIS first. (Id. at ¶ 21, Ex. E).

         C. Procedural Background

         Plaintiff filed her Complaint on March 22, 2019. (Dkt. #1). On May 31, 2019, Defendants filed a letter motion seeking leave to file a motion to dismiss the Complaint in its entirety. (Dkt. #12). The Court granted Defendants leave to file their motion to dismiss on June 4, 2019. (Dkt. #13). Defendants filed their motion to dismiss and supporting papers on June 27, 2019. (Dkt. #17, 18, 19). Plaintiff filed an opposition brief on July 25, 2019. (Dkt. #19). This motion became fully briefed when Defendants filed their reply brief on August 1, 2019. (Dkt. #21).


         A. Applicable Law

         1. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)

         Rule 12(b)(1) permits a party to move to dismiss a complaint for “lack of subject-matter jurisdiction.” Fed.R.Civ.P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Lyons v. Litton Loan Servicing LP, 158 F.Supp.3d 211, 218 (S.D.N.Y. 2016) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

         The Second Circuit has drawn a distinction between two types of Rule 12(b)(1) motions: (i) facial motions and (ii) fact-based motions. See Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 56-57 (2d Cir. 2016); see also Katz v. Donna Karan Co., L.L.C., 872 F.3d 114, 119 (2d Cir. 2017). A facial Rule 12(b)(1) motion is one “based solely on the allegations of the complaint or the complaint and exhibits attached to it.” Carter, 822 F.3d at 56. A plaintiff opposing such a motion bears “no evidentiary burden.” Id. Instead, to resolve a facial Rule 12(b)(1) motion, a district court must “determine whether [the complaint and its exhibits] allege[ ] facts that” establish subject matter jurisdiction. Id. (quoting Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (per curiam)). And to make that determination, a court must accept the complaint's allegations as true “and draw[ ] all reasonable inferences in favor of the plaintiff.” Id. at 57 (internal quotation marks and citation omitted).

         “Alternatively, a defendant is permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the complaint and its exhibits.” Carter, 822 F.3d at 57; see also MMA Consultants 1, Inc. v. Rep. of Peru, 719 Fed.Appx. 47, 49 (2d Cir. 2017) (summary order) (defining fact-based Rule 12(b)(1) motion as one where “the defendant puts forward evidence to challenge the factual contentions underlying the plaintiff's assertion of subject-matter jurisdiction”). “In opposition to such a motion, [plaintiffs] must come forward with evidence of their own to controvert that presented by the defendant, or may instead rely on the allegations in the[ir p]leading if the evidence proffered by the defendant is immaterial because it does not contradict plausible allegations that are themselves sufficient to show standing.” Katz, 872 F.3d at 119 (internal citations and quotations omitted). If a defendant supports his fact-based Rule 12(b)(1) motion with “material and controverted” “extrinsic evidence, ” a “district court will need to make findings of fact in aid of its decision as to subject matter jurisdiction.” Carter, 822 F.3d at 57.

         2. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

         When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must “draw all reasonable inferences in Plaintiff's favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (internal quotation marks omitted)). A plaintiff is entitled to relief if he alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiff's claims across the line from conceivable to plausible.” (internal quotation marks and alterations omitted)).[3]

         “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         B. Analysis

         Defendants argue that the Court should dismiss each of Plaintiff's claims, because either the Court lacks subject matter jurisdiction over the claim or Plaintiff has failed to state a claim for relief. The Court recognizes that where a movant advances claims under both Rule 12(b)(1) and Rule 12(b)(2), it is preferable to address the former claims first, as the absence of subject matter jurisdiction generally moots the need to discuss the adequacy of the pleadings. However, in this case, the Court's analysis of Plaintiff's APA claims informs its analysis of the remainder of Plaintiff's claims, and thus the Court begins with those claims, which implicate defense arguments under both rules. As set forth in the remainder of this Opinion, the Court considers, but ultimately dismisses, each of Plaintiff's claims.

         1. Plaintiff Fails to State a Claim Under the APA

         The APA provides for judicial review of an agency action that is either not completed “within a reasonable time, ” or is “unreasonably delayed.” 5 U.S.C. §§ 555(b), 706(1). “However, the judicial review provisions of the APA do not apply ‘to the extent that ... statutes preclude judicial review.'” Shabaj v. Holder, 718 F.3d 48, 52 (2d Cir. 2013) (per curiam). “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) (“TRAC, ” and the “TRAC factors”), which are: (i) the time agencies take to make decisions must be governed by a rule of reason; (ii) where Congress has provided a timetable, it may supply content for this rule of reason; (iii) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (iv) the effect of expediting delayed action on agency activities of a higher or competing priority; (v) the nature and extent of the interests prejudiced by delay; and (vi) the court need not find ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.