Gebeyehu v. Jaddou

• Court: District Court, W.D. Washington
• Decided: May 3, 2024
• Docket: 2:23-cv-01033
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE 6 ZERIHUN BELACHEW GEBEYEHU, NO. 2:23-CV-01033-RSM 7 Plaintiff, ORDER GRANTING DEFENDANTS’ 8 MOTION FOR SUMMARY JUDGMENT v. 9

10 UR M. JADDOU, ET AL.,

11 Defendants.

12 I. INTRODUCTION 13 14 This matter comes before the Court on the parties’ cross Motions for Summary Judgment, 15 Dkts. #7 and #12. Plaintiff Zerihun Belachew Gebeyehu brings this case for a writ of mandamus 16 and under the Administrative Procedure Act (“APA”). There has been no request for oral 17 argument. Having reviewed the submissions of the parties, the Court GRANTS Defendants’ 18 Motion for Summary Judgment and DENIES Plaintiff’s Motion. 19 II. BACKGROUND 20 21 Plaintiff Gebeyehu is a citizen of Ethiopia who resides in Shoreline, Washington. Dkt. #1 22 at ¶ 5. He states that he was the victim of political persecution in Ethiopia as a previous financial 23 supporter of the Tigrayan People’s Liberation Front (“TPLF”) and as an ethnic Tigrayan. Id. at 24 ¶ 13. 25 He entered the United States lawfully on June 9, 2021. Id. at ¶ 14. On October 25, 2021, 26 he filed an I-589 application for asylum. Id. At the same time, he requested expedited 27 adjudication. Dkt. #8 (“Lehman Decl.”), ¶ 19. U.S. Citizenship and Immigration Services 1 2 (“USCIS”) has not yet scheduled Mr. Gebeyehu for an interview, in part because USCIS has a 3 “last in first out” or “LIFO” policy that prioritizes more recent asylum applications over those 4 that have been pending longer than 21 days. See id. at ¶ 15. USCIS did however grant Mr. 5 Gebeyehu’s application for a work permit (called an “Employment Authorization Document” or 6 “EAD”) on April 6, 2022, which remains valid until April 22, 2024. Id. at ¶ 17. He may apply 7 to renew his EAD as long as his asylum application remains pending. 8 On September 25, 2023, USCIS denied Mr. Gebeyehu’s expedited adjudication request. 9 10 Id. at ¶ 19. However, the San Francisco Asylum Office placed him on its “short-notice” interview 11 list. Id. at ¶ 18. 12 Mr. Gebeyehu alleges he was forced to abandon his business assets in Ethiopia, and he 13 intends to “travel to a neighboring country to work on a contingency plan for his businesses, and 14 to secure or liquidate whatever assets he can.” Dkt. #1 at ¶ 15. He believes he needs to have his 15 asylum request adjudicated immediately in order to make that trip. However, asylum applicants 16 may apply for an “advance parole” document if they need to travel outside the United States for 17 18 certain purposes while their application is pending. 8 C.F.R. § 208.8. Mr. Gebeyehu has not 19 sought advance parole. See Lehman Decl. at ¶ 20. He alleges that he has not applied for advance 20 parole because “the limited duration of an Advanced Parole document, which is typically about 21 two weeks, does not give Mr. Gebeyehu enough time to resolve his outstanding business affairs, 22 nor does it guarantee re-entry into the U.S.” Dkt. #1 at ¶ 16. 23 This case was filed on July 11, 2023. Id. Plaintiff Gebeyehu asks this Court to declare 24 25 that Defendants’ actions of failing to schedule his asylum interview and delaying the adjudication 26 27 of his asylum claim for more than two years, constitute a violation of the APA or otherwise 1 2 warrant mandamus relief. 3 In a nutshell, he claims that he will suffer severe financial loss if his asylum claim is not 4 processed in an expedited fashion. The Complaint states: 5 More specifically, when Mr. Gebeyehu fled Ethiopia fearing for his 6 life, he was forced to abandon his business assets, including, but not limited to, a hotel he owns and had managed in Addis Ababa called 7 Yosti Hotel & Spa, valued at $1M. Id. at 22, 61-71. In his absence, Mr. Gebeyehu’s assets are at risk of being seized or destroyed by the 8 TPLF or other groups who may take advantage of the war. Id. Mr. Gebeyehu plans to travel to a neighboring country to work on a 9 contingency plan for his businesses, and to secure or liquidate 10 whatever assets he can. Id.

11 While Mr. Gebeyehu, like all asylum applicants, can apply for I-131 Advanced Parole travel document to travel outside the U.S. while 12 his asylum case is pending (so long as he does not return to the country of claimed persecution), the limited duration of an 13 Advanced Parole document, which is typically about two weeks, 14 does not give Mr. Gebeyehu enough time to resolve his outstanding business affairs, nor does it guarantee re-entry into the U.S. See 8 15 C.F.R. §§ 212.5(f), 223.1-223.3; see also IFM at 16.3(a); AAPM III D. Furthermore, USCIS’s stated processing times for a Form I-131 16 is at least 9-18 months, and often longer.

17 Id. at ¶¶ 15–16. 18 III. DISCUSSION 19 A. Legal Standard for Summary Judgment 20 Summary judgment is appropriate where “the movant shows that there is no genuine 21 22 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 23 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are 24 those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 25 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of 26 the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, 27 Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 1 2 969 F.2d 744, 747 (9th Cir. 1992)). 3 On a motion for summary judgment, the court views the evidence and draws inferences 4 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. 5 Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable 6 inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d 7 on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient 8 showing on an essential element of her case with respect to which she has the burden of proof” 9 10 to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 11 B. Analysis 12 The Court has subject matter jurisdiction over Defendant’s APA claim under 28 U.S.C. 13 § 1331. Under the APA, a reviewing court may “compel agency action unlawfully withheld or 14 unreasonably delayed[.]” 5 U.S.C. § 706(1). “[A] claim under § 706(1) can proceed only where 15 a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” 16 Norton v. S. Utah Wilderness All., 542 U.S. 55, 64, 124 S. Ct. 2373, 159 L. Ed. 2d 137 (2004) 17 18 (emphasis in original). “The central question in evaluating ‘a claim of unreasonable delay’ is 19 ‘whether the agency’s delay is so egregious as to warrant mandamus.’” In re Core Commc'ns, 20 Inc., 531 F.3d 849, 855, 382 U.S. App. D.C. 120 (D.C. Cir. 2008) (quoting Telecomms. Rsch. & 21 Action Ctr. v. FCC, 750 F.2d 70, 79, 242 U.S. App. D.C. 222 (D.C. Cir.1984)). 22 For determinations of whether agency delays are unreasonable under the APA, the Ninth 23 Circuit has adopted the “TRAC” factors, a six-factor balancing test. Telecomms. Rsch., 750 F.2d 24 25 at 79-80; see Vaz v. Neal, 33 F.4th 1131, 1137 (9th Cir. 2022). The factors are: 26 (1) the time agencies take to make decisions must be governed by a “rule of reason;” 27 1 (2) where Congress has provided a timetable or other indication of 2 the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of 3 reason;

4 (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at 5 stake; 6 (4) the court should consider the effect of expediting delayed action 7 on agency activities of a higher or competing priority;

8 (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and 9

10 (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is “unreasonably 11 delayed.”

12 Telecomms. Rsch., 750 F.2d at 80 (citations and quotations omitted). 13 The Mandamus Act, 28 U.S.C. § 1361, provides district courts with “original jurisdiction 14 over any action in the nature of mandamus to compel an officer or employee of the United States 15 or any agency thereof to perform a duty owed to the plaintiff.” It is well-established that 16 “[m]andamus is an extraordinary remedy and is available to compel a federal official to perform 17 18 a duty only if: (1) the individual’s claim is clear and certain; (2) the official’s duty is 19 nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt; and (3) no other 20 adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998). 21 Both parties move for summary judgment, essentially on the facts in the Complaint and 22 USCIS statistics about asylum application numbers. Defendants first argue that mandamus relief 23 is unavailable because Plaintiff has failed to allege a “nondiscretionary, ministerial duty requiring 24 25 USCIS to adjudicate his asylum application by a date certain.” Dkt. #7 at 17. They assert that 26 27 an adequate remedy is available to Plaintiff under his APA claim. The Court agrees that 1 2 mandamus relief is not available under these facts. 3 Turning to the APA claim and the TRAC factors, the Court finds that USCIS has not 4 unreasonably delayed the adjudication of Mr. Gebeyehu’s asylum application within the meaning 5 of 5 U.S.C. § 706(1). In this case, USCIS has identified a rule of reason: the “LIFO” scheduling 6 system. This method of scheduling was designed to deter fraudulent or meritless filings that are 7 made to obtain employment authorization. Lafferty Decl. at ¶ 28. Whether or not this system is 8 the best way to handle asylum applications, Courts throughout the country have consistently 9 10 found the LIFO policy to be a rule of reason that satisfies the first TRAC factor. See Dkt. #7 11 (citing Zhang v. Wolf, No. 19-cv-5370, 2020 WL 5878255 at *4 (E.D.N.Y. Sept. 20, 2020); Xu 12 v. Cissna, 434 F. Supp. 3d 43, 53 (S.D.N.Y. 2020); Varol v. Radel, 420 F. Supp. 3d 1089, 1097 13 (S.D. Cal. 2019); Zhu v. Cissna, No. 18-cv-9698, 2019 WL 3064458, at *4 (C.D. Cal. Apr. 22, 14 2019)). 8 U.S.C. § 1158(d)(5)(A) establishes an aspirational timeframe for when interviews 15 should take place and when a final adjudication should occur. Congress, however, vested some 16 discretion in agencies to exceed those timeframes in “exceptional circumstances.” 8 U.S.C. 17 18 §1158(d)(5)(A)(ii), (iii). That discretion allows USCIS to administer the asylum program by 19 implementing the LIFO policy and other prioritization measures designed to help the agency 20 overcome unique challenges associated with operating in the everchanging environment of global 21 migration. See Zhang, 2020 WL 5878255, at *5 (“the qualifying phrase ‘absent exceptional 22 circumstances’ in § 1158(d)(5)(A)(iii) suggests that Congress intended that the timeline not apply 23 while the USCIS is dealing with an exceptional level of asylum applicants”). The Court agrees 24 25 with Defendants who state that “[t]he current backlog of asylum applications is the result of 26 exceptional circumstances beyond the control of USCIS, including surges of migrants arriving at 27 the southern border and global migration beyond the control of USCIS.” Dkt. #7 at 21. Looking 1 2 at the third and fifth TRAC factors, the Court again agrees with Defendants that Mr. Gebeyehu 3 has not sufficiently alleged that the delay has resulted in a risk to his health or welfare. The 4 alleged harm is financial (not getting the full value for the sale of his business in Ethiopia). The 5 Court notes that, even taking all facts in the Complaint as true, this harm is the inability to sell a 6 business in person (in a neighboring country) rather than remotely or through an agent, or being 7 forced to go through the advanced parole system for a shorter-than-desired trip to a neighboring 8 country. Viewing these facts and all reasonable inferences in the light most favorable to the 9 10 Plaintiff, the extent of the financial harm, or even that there would be any financial harm, remain 11 speculative. These factors favor Defendants. The fourth TRAC factor also favors Defendants 12 because the effects of ordering the adjudication of Mr. Gebeyehu’s asylum application would 13 prejudice all other asylum applications, many of which involve threats to health or welfare. 14 Finally, although “the court need not find any impropriety lurking behind agency lassitude in 15 order to hold that agency action is ‘unreasonably delayed,’” a finding of unreasonable delay alone 16 will not outweigh the other five TRAC factors. Plaintiff’s arguments that the whole asylum 17 18 system is full of unreasonable delay do not justify the requested relief and its effect of moving 19 Mr. Gebeyehu ahead of other asylum applicants. 20 In sum, the TRAC factors favor summary judgment dismissal of Plaintiff’s APA claim. 21 The Court concludes that Plaintiff has failed to demonstrate that Rule 56(d) relief is 22 warranted because the facts he seeks, “how many asylum officers and other resources are 23 currently being diverted (from August 2021 through the present) to adjudicate Afghan asylum 24 25 claims,” and “how many of the completed cases adhered to the LIFO policy,” are not essential 26 to oppose Defendants’ Motion for Summary Judgment as such discovery would fail to change 27 the TRAC analysis above for his claim in particular and because the LIFO policy has already 1 2 been found to be a rule of reason by other Courts. 3 IV. CONCLUSION 4 Having reviewed the relevant briefing and the remainder of the record, the Court hereby 5 finds and ORDERS that Defendants’ Motion for Summary Judgment, Dkt. #7, is GRANTED 6 and Plaintiff’s Motion for Summary Judgment, Dkt. #12, is DENIED. All of Plaintiff’s claims 7 are DISMISSED. This case is CLOSED. 8 DATED this 3rd day of May, 2024. 9 10 A 11 RICARDO S. MARTINEZ 12 UNITED STATES DISTRICT JUDGE

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