Abdullah Al Zubiri v. Joseph Edlow, in his official capacity as Director, United States Citizenship and Immigration Service (USCIS)

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 ABDULLAH AL ZUBIRI, Case No.: 3:25-cv-02636-RBM-SBC

8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS 10 JOSEPH EDLOW, in his official capacity

as Director, United States Citizenship and 11 [Doc. 8] Immigration Service (USCIS),1

12 Defendant. 13

14 Plaintiff Abdullah Al Zubiri (“Plaintiff”) is a citizen of Yemen who initiated this 15 action to seek judicial intervention in the processing of his asylum claim pursuant to the 16 Mandamus Act and the Administrative Procedure Act (“APA”). (See generally Doc. 1 17 (“Compl.”).) Pending before the Court is Defendant’s Motion to Dismiss. (Doc. 8.) 18 Defendant seeks to dismiss the Complaint for lack of subject matter jurisdiction under 19 Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and for failure to state a claim under 20 Rule 12(b)(6). (See generally id.) Plaintiff filed an Opposition to Defendant’s Motion to 21 Dismiss (“Opposition”) (Doc. 11), and Defendant filed a Reply in Support of Motion to 22 Dismiss (“Reply”) (Doc. 12). 23 The Court finds this matter suitable for determination without oral argument 24 pursuant to Civil Local Rule 7.1(d)(1). Having reviewed the above filings, and for the 25 reasons below, the Motion to Dismiss is GRANTED in part and DENIED in part. 26 27 1 Joseph Edlow is automatically substituted pursuant to Federal Rule of Civil Procedure 28 1 I. BACKGROUND 2 Individuals who fear persecution in their countries of origin can affirmatively seek 3 asylum in the United States by submitting a Form I-589, Application for Asylum and 4 Withholding of Removal, to United States Citizenship and Immigration Services 5 (“USCIS”). 8 C.F.R. § 208.2. After receiving the application, USCIS should schedule an 6 asylum interview: 7 in the absence of exceptional circumstances, the initial interview or hearing 8 on the asylum application shall commence not later than 45 days after the date an application is filed; . . . in the absence of exceptional circumstances, final 9 administrative adjudication of the asylum application, not including 10 administrative appeal, shall be completed within 180 days after the date an application is filed. 11

12 8 U.S.C. § 1158(d)(5)(A)(ii)–(iii). But nothing in this subsection “shall be construed to 13 create any substantive or procedural right or benefit that is legally enforceable by any party 14 against the United States or its agencies or officers or any other person.” Id. § 1158(d)(7). 15 This case arises from the nearly four-year delay in USCIS’s adjudication of 16 Plaintiff’s asylum petition. (See Compl. ¶¶ 22, 24.)2 Plaintiff “came to the United States 17 to escape life-threatening persecution and seek asylum,” and he “lives in constant fear of 18 being sent back to Yemen, where [he] may be killed or attacked due to [his] political 19 beliefs.” (Id. ¶ 2.) On May 23, 2022, Plaintiff filed his Form I-589 with USCIS. (Id. ¶ 22.) 20 To this day, Defendant has not scheduled an asylum interview for Plaintiff. (Id. ¶ 24.) 21 “[H]aving his claim for asylum unadjudicated makes it impossible for [Plaintiff] to make 22 long-term future plans” and “prejudic[es] his ability to obtain asylum” because, as the years 23 go on, it becomes harder to obtain evidence and for witnesses, including Plaintiff, to 24 remember details. (Id. ¶¶ 24–25.) 25

26 27 2 The factual summary here reflects Plaintiff’s allegations, not conclusions of fact or law by this Court. Well-pled factual allegations are accepted as true for purposes of the Motion 28 1 In January 2018, USCIS adopted a “last-in-first-out” policy for scheduling asylum 2 interviews. (Id. ¶ 20.) The policy divides applications into three groups: “(1) those being 3 rescheduled for interviews that were not previously cancelled . . . ; (2) new applications 4 pending 21 days or less; and (3) those in the ‘asylum backlog’ who are waiting for 5 interviews, starting with the most recently added applicant.” (Id.) USCIS adjudicates 6 fewer cases each month than are filed, leading to a continuously growing asylum backlog. 7 (Id. ¶ 27.) Because Plaintiff’s application falls within the asylum backlog category, 8 USCIS’s policy will result in Plaintiff’s interview being indefinitely delayed. (Id.) 9 II. LEGAL STANDARDS 10 A. Rule 12(b)(1) 11 Federal courts are courts of limited jurisdiction and, as such, have an obligation to 12 dismiss claims for which they lack subject matter jurisdiction. See Demarest v. United 13 States, 718 F.2d 964, 965 (9th Cir. 1983). “The party asserting jurisdiction bears the 14 burden of establishing subject matter jurisdiction.” In re Dynamic Random Access Memory 15 (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008). 16 B. Rule 12(b)(6) 17 A complaint must contain “a short and plain statement of the claim showing that the 18 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “A motion to dismiss under [Rule] 19 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal 20 sufficiency of a claim.” Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 21 2011) (internal citation omitted). An action may be dismissed for failure to allege “enough 22 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 23 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual 24 content that allows the court to draw the reasonable inference that the defendant is liable 25 for the misconduct alleged.” Iqbal, 556 U.S. at 678. For purposes of ruling on a Rule 26 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as true and 27 construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek 28 v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 1 III. DISCUSSION 2 Plaintiff alleges that Defendant has unreasonably delayed adjudicating his asylum 3 application and asks the Court to compel adjudication under (1) the Mandamus Act, 28 4 U.S.C. § 1361; (2) APA § 706(1); and (3) APA § 706(2). (Compl. ¶¶ 33–82.) Defendant 5 argues that the action should be dismissed because the Court lacks subject matter 6 jurisdiction and Plaintiff has failed to state a claim. (Doc. 8 at 12–22.) 7 A. Rule 12(b)(1) 8 Defendant argues that the Court lacks subject matter jurisdiction over Plaintiff’s 9 claims because § 1158(d)(7) provides no private right of action to enforce the time frames 10 set forth in § 1158(d)(5). (Doc. 8 at 14–16.) Plaintiff argues that, although § 1158(d)(7) 11 precludes applicants from suing to compel their applications to be granted, it does not 12 preclude them from suing to compel their applications to be processed. (Doc. 11 at 3–5.) 13 The Court agrees with Plaintiff. 14 The APA “imposes a general but nondiscretionary duty upon an administrative 15 agency to pass upon a matter presented to it ‘within a reasonable time,’ 5 U.S.C. § 555(b), 16 and authorizes a reviewing court to ‘compel agency action unlawfully withheld or 17 unreasonably delayed,’ id. § 706(1).” Mashpee Wampanoag Tribal Council, Inc. v. 18 Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003). “A court can compel agency action under 19 this section only if there is a ‘specific, unequivocal command’ placed on the agency to take 20 a ‘discrete agency action,’ and the agency has failed to take that action.” Vietnam Veterans 21 of Am. v. CIA, 811 F.3d 1068, 1075 (9th Cir. 2016) (quoting Norton v. S. Utah Wilderness 22 Alliance, 542 U.S. 55, 63–64 (2004)). Defendant has such a duty to adjudicate asylum 23 applications. As another court in this District explained: 24 While 8 U.S.C. § 1158(d)(7) provides there is no private right of action to enforce the time frames set forth in § 1158(d)(5)(A), district courts have found 25 that the prohibition does not deprive the district court of subject matter 26 jurisdiction. See Su v. Mayorkas, 698 F. Supp. 3d 1168, 1175 (N.D. Cal. 2023) (collecting cases). This is because “unlike other subsections of the INA, 27 § 1158(d)(7) does not expressly preclude judicial review.” Varol v. Radel, 28 420 F. Supp. 3d 1089, 1096 (S.D. Cal. 2019). 1 For example, § 1158(a)(3) states: “No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)” and 2 § 1158(b)(2)(D) provides: “There shall be no judicial review of a 3 determination of the Attorney General under subparagraph (A)(v).” The Court agrees with other district courts finding that “[h]ad Congress intended 4 § 1158(d)(7) to be a jurisdiction-stripping provision, it would have adopted 5 the express language found in § 1158(a)(3) and § 1158(b)(2)(D).” Varol, 420 F. Supp. 3d at 1096. And even if there is doubt as to Congressional intent, it 6 “would be dispelled by a familiar principle of statutory construction: the 7 presumption favoring judicial review of administrative action.” Kucana v. Holder, 558 U.S. 233, 251 (2010) (“We have consistently applied that 8 interpretive guide to legislation regarding immigration, and particularly to 9 questions concerning the preservation of federal-court jurisdiction.”).

10 Thus, based on the foregoing, although 8 U.S.C. § 1158(d)(7) provides no 11 right of action under the INA, it does not divest the Court of subject matter jurisdiction over Plaintiff's APA and mandamus claims. 12

13 Elmustafa v. USCIS, Case No.: 23-cv-2061-AJB-AHG, 2024 WL 3571728, at *2 (S.D. Cal. 14 July 29, 2024). The Court thus DENIES the Motion to Dismiss under Rule 12(b)(1). 15 B. Rule 12(b)(6) 16 1. Mandamus Claim 17 “Mandamus is an extraordinary remedy and is available to compel a federal official 18 to perform a duty only if: (1) the individual’s claim is clear and certain; (2) the official’s 19 duty is nondiscretionary, ministerial, and so plainly described as to be free from doubt; and 20 (3) no other adequate remedy is available.” Kildare v. Saenz, 325 F.3d 1078, 1084 21 (9th Cir. 2003). Defendant argues that Plaintiff fails to plausibly allege a mandamus claim 22 because he cannot show that his claim is “clear and certain.” (Doc. 8 at 22.) The Court 23 agrees with Defendant. 24 Section 1158(d)(7) explicitly prohibits Plaintiff from enforcing the time limits for 25 conducting an interview and issuing a decision on his asylum application. As such, 26 “[c]ourts have found that 8 U.S.C. § 1158(d)(5)(A) cannot form the basis for mandamus 27 relief because the relevant statute makes clear that the 45-day rule is not a right enforceable 28 by the applicant.” Su v. Mayorkas, 698 F. Supp. 3d 1168, 1176 (N.D. Cal. 2023) (internal 1 quotation marks omitted). “Because Plaintiff is not afforded a private right of action 2 against Defendant[ ], [he] has failed to state a claim for which relief can be granted.” Varol, 3 420 F. Supp. 3d at 1099; see also Pesantez v. Johnson, No. 15 Civ. 1155(BMC), 2015 WL 4 5475655, at *2 (E.D.N.Y. Sept. 17, 2015) (“It is beyond serious dispute that mandamus 5 pursuant to § 1361 is unavailable to compel compliance with a statutory obligation when 6 the underlying statute expressly disclaims a private right of action.”). Accordingly, the 7 Court GRANTS the Motion to Dismiss under Rule 12(b)(6) as to Plaintiff’s claim under 8 the Mandamus Act. Because no amendment could cure this defect, Plaintiff’s mandamus 9 claim is DISMISSED with prejudice. See Varol, 420 F. Supp. 3d at 1100 (dismissing 10 claims with prejudice because “amendment would be an exercise in futility”). 11 2. APA Claims 12 Defendant also argues that Plaintiff fails to plausibly allege an unreasonable delay 13 claim under the APA. (Doc. 8 at 17–22.) “To determine whether an agency’s delay is 14 unreasonable, courts in the Ninth Circuit apply the six-factor test articulated in 15 Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), 16 commonly referred to as the ‘TRAC’ test.” Tamjidi v. Blinken, Case No. 8:24-cv-00403 17 HDV JDE, 2024 WL 4328813, at *5 (C.D. Cal. Aug. 27, 2024); Vaz, 33 F.4th at 1137 18 (applying TRAC factors). The TRAC factors include: 19 (1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of 20 the speed with which it expects the agency to proceed in the enabling statute, 21 that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less 22 tolerable when human health and welfare are at stake; (4) the court should 23 consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the 24 nature and extent of the interests prejudiced by the delay; and (6) the court 25 need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” 26

27 Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 n.7 (9th Cir. 1997) (quoting 28 Telecomms. Research & Action Ctr., 750 F.2d at 80). 1 “District courts in the Ninth Circuit are split” as to whether to consider TRAC factors 2 on a motion to dismiss. Aldurra v. United States Dep’t of State, Case No.: 25cv1322 DMS 3 (DEB), 2026 WL 63471, at *3 (S.D. Cal. Jan. 8, 2026) (collecting cases). The Court finds 4 persuasive the reasoning of those courts that have declined to consider the TRAC factors 5 on a motion to dismiss, and likewise finds it premature to conduct the TRAC analysis here. 6 “Specifically, the Court agrees an analysis of the TRAC factors involves factually intensive 7 questions, which are generally inappropriate for resolution on a motion to dismiss.” Id. 8 (citing Mobayen v. Blinken, 780 F. Supp. 3d 969, 984 (C.D. Cal. 2025)). “An analysis of 9 the TRAC factors would also require the Court ‘to look beyond the face of [Plaintiff’s] 10 complaint,’ . . . which is also generally inappropriate on a motion to dismiss.” Id. (quoting 11 Gonzalez v. United States Dep’t of Homeland Sec., 500 F. Supp. 3d 1115, 1130 (E.D. Cal. 12 2020)). For example, in support of its TRAC arguments, Defendant asks the Court to take 13 judicial notice of the fact that “USCIS has begun scheduling affirmative asylum interviews 14 along two tracks simultaneously,” with the first track focusing on the “established LIFO 15 order of priority” and the second track focusing on “affirmative asylum applications 16 pending in the backlog, starting with the oldest applications and working forward.” (Doc. 17 8 at 12 (citing USCIS website); id. at 6 n.3.) Although the Court may take judicial notice 18 of records from government websites, the Court may not take judicial notice of disputed 19 facts contained in such records. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 20 999 (9th Cir. 2018). And Plaintiff disputes aspects of those facts in ways that can only be 21 resolved with the benefit of a more developed record. (See Doc. 11 at 6–7, 9.) 22 “While an evaluation of discoverable facts may ultimately demonstrate no 23 unreasonable delay in this case, the Court finds that such a determination is premature at 24 this juncture.” Elmustafa, 2024 WL 3571728, at *3. Accordingly, the Court DENIES the 25 Motion to Dismiss under Rule 12(b)(6) as to Plaintiff’s APA claims. 26 / / / 27 / / / 28 / / / l IV. CONCLUSION 2 Based on the foregoing, the Court GRANTS in part and DENIES in part the 3 ||Motion to Dismiss (Doc. 6). The Court DENIES the Motion to Dismiss under Rule 4 12(b)(1). The Court DENIES the Motion to Dismiss under Rule 12(b)(6) as to Plaintiff's 5 || APA claims. The Court GRANTS the Motion to Dismiss under Rule 12(b)(6) as to 6 || Plaintiff's Mandamus Act claim. That claim is DISMISSED with prejudice. 7 Defendant SHALL FILE its Answer on or before May 22, 2026. 8 IT IS SO ORDERED. 9 || Dated: May 1, 2026 FR a ? l > 10 HON. RUTH BERMUDEZ MONTENEGRO 1] UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28