Varol v. Radel

• Court: District Court, S.D. California
• Decided: October 22, 2019
• Docket: 3:19-cv-00524
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TUGCE VAROL, Case No.: 19cv0524 GPC JLB

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS

14 DAVID M. RADEL, Los Angeles Asylum [Dkt. No. 4] Office, Director, U.S. Citizenship and 15 Immigration Services, et al., 16 Defendants. 17

18 On July 11, 2016, Plaintiff filed a form I-589 with the United States Citizenship 19 and Immigration Services (USCIS) to apply for asylum and withholding of removal. 20 (Dkt. No. 1 at 3.) More than three years later, Plaintiff is still waiting to schedule an 21 asylum interview with USCIS and for ultimate adjudication of her asylum application. 22 (Id.) She reports that the delays have produced great stress and anxiety and has prompted 23 the filing of this action which requires the Court to determine whether it has the 24 jurisdiction to entertain the case and, if so, whether the law provides Plaintiff a 25 cognizable cause of action. While the Court appreciates the difficulties that Plaintiff has 26 experienced in the course of awaiting a hearing, unfortunately, neither immigration law, 27 28 1 the Administrative Procedures Act (APA) nor the Constitution provide the sought-after 2 remedy. 3 On March 19, 2019, Tugce Varol (“Plaintiff”) filed a complaint for relief in the 4 nature of mandamus to compel David M. Radel, Los Angeles Asylum Office, Director, 5 U.S. Citizenship and Immigration Services; Kirstjen Nielsen, Secretary, U.S. Department 6 of Homeland Security; and William P. Barr, U.S. Attorney General (collectively, 7 “Defendants”) to schedule an interview and adjudicate Plaintiff’s asylum application. 8 (Dkt. No. 1.) On June 14, 2019, Defendants filed, in response, a motion to dismiss the 9 complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 10 4.) Subsequently, Plaintiff filed a late response in opposition to the Government’s 11 motion on July 4, 2019.1 (Dkt. No. 7.) On July 12, 2019, Defendants filed a reply to in 12 support of their motion to dismiss. (Dkt. No. 8.) 13 A hearing on motion was held on September 27, 2019. Having reviewed the 14 moving papers and applicable law, considered the arguments of counsel, and for the 15 reasons set forth below, the Court GRANTS Defendants' Motion to Dismiss. 16 Background 17 On July 23, 2015, Plaintiff, a native and citizen of Turkey, came to the United 18 States as a B-2 visitor. (Dkt. No. 1 at 3.) Department of Homeland Security (“DHS”) 19 authorized Plaintiff to remain in the country for a period of six months. (Id.) On July 11, 20 2016, she filed a form I-589 with the United States Citizenship and Immigration Services 21 (USCIS) to apply for asylum and withholding of removal. (Id.) On or about September 1, 22 2016, Plaintiff provided her biometrics to the USCIS per agency direction. (Id.) Plaintiff 23 is still waiting to schedule an asylum interview with the USCIS and for ultimate 24 adjudication of her asylum application. (Id.) 25 26

27 1 The Court notes that Plaintiff’s untimely response was unopposed by Defendants and ultimately 28 1 Plaintiff has made multiple attempts to expedite her asylum interview without 2 success. (Id. at 4.) Plaintiff claims to have exhausted all available administrative 3 remedies and asserts Defendants have failed to act in accordance with their duties under 4 the law. (Id. at 9.) Plaintiff believes Defendants have unreasonably delayed the 5 adjudication of Plaintiff’s asylum application. (Id. at 9.) 6 Further, Plaintiff alleges that Defendants have been unable or unwilling to 7 adjudicate her application for asylum and that the agency’s system for scheduling asylum 8 applications for interviews is “arbitrary and capricious.” (Dkt. No. 1 at ¶¶ 16, 20.) 9 Consequently, Plaintiff seeks relief under the Mandamus Act for violations of the 10 Immigration and Nationality Act (“INA”) and the Administrative Procedures Act 11 (“APA”). (Dkt. No. 1 at 9.) Plaintiff also asserts a Due Process claim. (Dkt. No. 1 at 8.) 12 Ultimately, Plaintiff seeks an order to compel the Defendants to schedule an interview 13 and fully adjudicate Plaintiff’s asylum application. (Id. at 9.) 14 Defendants have moved to dismiss the complaint on the basis that Plaintiff’s 15 complaint lacks subject matter jurisdiction and cannot state a claim for relief. (Dkt. No. 16 4.) 17 Legal Standard 18 A. Federal Rule of Civil Procedure 12(b)(1) 19 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek 20 to dismiss a complaint for lack of subject matter jurisdiction. The federal court is one of 21 limited jurisdiction. See Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 774 22 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its 23 own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 24 83, 95 (1998). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of 25 establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 26 U.S. 375, 377 (1994). 27 B. Federal Rule of Civil Procedure 12(b)(6) 28 1 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the 2 sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 3 Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal 4 theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); See 5 Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to 6 dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint 7 may be dismissed where it presents a cognizable legal theory yet fails to plead essential 8 facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give 9 "detailed factual allegations," a plaintiff must plead sufficient facts that, if true, "raise a 10 right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 11 545 (2007). 12 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, 13 accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 14 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible 15 when the factual allegations permit "the court to draw the reasonable inference that the 16 defendant is liable for the misconduct alleged." Id. In other words, "the non-conclusory 17 'factual content,' and reasonable inferences from that content, must be plausibly 18 suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 19 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim 20 for relief will . . . be a context-specific task that requires the reviewing court to draw on 21 its judicial experience and common sense." Iqbal, 556 U.S. at 679. 22 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 23 truth of all factual allegations and must construe all inferences from them in the light 24 most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 25 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal 26 conclusions, however, need not be taken as true merely because they are cast in the form 27 of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. 28 Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to 1 dismiss, a court may consider the facts alleged in the complaint, documents attached to 2 the complaint, documents relied upon but not attached to the complaint when authenticity 3 is not contested, and matters of which the court takes judicial notice. Lee v. Los Angeles, 4 250 F.3d 668, 688-89 (9th Cir. 2001). 5 Where a motion to dismiss is granted, "leave to amend should be granted 'unless 6 the court determines that the allegation of other facts consistent with the challenged 7 pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 8 957 F.2d 655, 658 (9th Cir. 1992). In other words, where leave to amend would be futile, 9 the Court may deny leave to amend. See Desoto, 957 F.2d at 658. 10 Discussion 11 Defendants have moved to dismiss Plaintiff’s Mandamus and APA claims for four 12 reasons. First, under Rule 12(b)(1), Defendants contend that subject matter jurisdiction is 13 improper because 8 U.S.C. § 1158(d) does not provide Plaintiff with substantive or 14 procedural rights before this Court. Second, under Rule 12(b)(6), Defendants argue that 15 Plaintiff cannot state a claim for relief through either the Mandamus Act or the APA 16 because she fails to establish as a matter of law that the time period for processing her 17 application is unreasonable under the present circumstances. Third, Defendants argue 18 that Plaintiff’s claim regarding the agency’s allocation of resources presents a non- 19 justiciable political question. And finally, Defendants proffer that Plaintiff has failed to 20 state a cognizable due process claim – and even if she had, it would fail. The Court will 21 address these arguments in turn. 22 A. Subject Matter Jurisdiction 23 Defendants contend this Court lacks subject matter jurisdiction because the INA 24 provides no private right of action. 8 U.S.C. § 1158(d)(7). Plaintiff’s primary theory of 25 relief arises from an alleged violation of §§ 1158(d)(5)(A)(ii)-(iii) which, in the absence 26 of exceptional circumstances, requires an initial interview on the asylum application 27 within 45 days and a final administrative adjudication within 180 days after the filing of 28 the application. However, Defendants point out that § 1158(d)(7) precludes a private 1 right of action and further states “[n]othing in this subsection shall be construed to create 2 any substantive or procedural right or benefit that is legally enforceable by any party 3 against the United States or its agencies or officers or any other person.” (Dkt. No. 8 at 4 2.) Thus, Defendants submit that this Court lacks the required subject matter jurisdiction. 5 Plaintiff counters that § 1158(d)(7) “merely points out that, given that asylum is 6 discretionary in nature, no applicant can compel the granting of the benefit.” (Dkt. No. 7 7 at 16). Plaintiff explains that an action to compel Defendants to process the application is 8 substantively different than a demand for approval of the asylum application and is not 9 precluded by statute. (Id.) As a result, Plaintiff asserts the Court is within its discretion 10 to hear the case and that her claims are not automatically precluded from judicial review. 11 (Id.) 12 Here, Plaintiff alleges Defendants have violated § 1158(d)(5)(A)(ii) by failing to 13 conduct an initial interview in over three years since her application has been pending. 14 However, the INA provides that “[n]othing in this subsection shall be construed to create 15 any substantive or procedural right or benefit that is legally enforceable by any party 16 against the United States or its agencies or officers or any other person. Id. §1158(d)(7). 17 Repeatedly, courts in the Ninth Circuit that have addressed § 1158(d)(7) have declined to 18 conclude that a private right of action exists. See Ms. L v. United States Immigration & 19 Customs Enforcement, 302 F. Supp. 3d 1149, 1168 (S.D. Cal. 2018) (“absent any 20 authority that a private right of action exists [under § 1158(d)(7)], the Court grants 21 Defendants’ motion to dismiss this claim”); Liuqing Zhu v. Cissna, 2019 WL 3064458 22 (C.D. Cal. 2019) (finding that asylum applicants lack a private right of action to enforce 23 the timing requirements of § 1158(d)(5)(A)); Ou v. Johnson, 2016 WL 7238850 (N.D. 24 Cal. 2016) (“Under § 1158, there is no private right of action.”). 25 However, the Court notes that unlike other subsections of the INA, § 1158(d)(7) 26 does not expressly preclude judicial review. Compare § 1158(a)(3) (“No court shall have 27 jurisdiction to review any determination of the Attorney General under paragraph (2).”); 28 § 1158(b)(2)(D) (“No judicial review.”), with § 1158(d)(7) (“No private right of action. 1 Nothing in this subsection shall be construed to create any substantive or procedural right 2 or benefit that is legally enforceable by any party against the United States or its agencies 3 or officers or any other person.”). Had Congress intended § 1158(d)(7) to be a 4 jurisdiction-stripping provision, it would have adopted the express language found in § 5 1158(a)(3) and § 1158(b)(2)(D). Here, such review is not expressly precluded by the 6 statute and if there was any doubt as to Congressional intent, the well-established 7 presumption favors judicial review. Kucana v. Holder 558 U.S. 233, 251 (2010) (“We 8 have consistently applied that interpretive guide to legislation regarding immigration, and 9 particularly to questions concerning the preservation of federal-court jurisdiction.”). 10 While the statute here denies Plaintiff any private cause of action under the INA, the 11 Court retains subject matter jurisdiction. See L.M. v. Johnson, 150 F. Supp. 3d 202, 210 12 (E.D.N.Y.); see also Lajin v. Radel, No. 19cv52-MMA (BLM), 2019 U.S. Dist. LEXIS 13 125118, at 6 (S.D. Cal. July 26, 2019) (finding that the court possessed subject matter 14 jurisdiction but that Plaintiff did not have a private right of action under INA). In other 15 words, the Court finds that Plaintiff may raise her claim in this Court, but the INA 16 provides her no relief. As a result, in order to proceed in this case, Plaintiff must identify 17 a separate basis for relief. 18 B. Failure to State a Claim 19 Having found that the INA provides no relief, the Court proceeds to determine 20 whether Plaintiff states a claim under the APA, the Mandamus Act, and the due process 21 clause. 22 1. Administrative Procedures Act 23 The APA requires an administrative agency to adjudicate matters presented to it 24 within a “reasonable time.” 5 U.S.C. § 555(b). A reviewing court has discretion to 25 “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 26 706(1). An “‘agency action’ includes the whole or a part of an agency rule, order, 27 license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 28 551(13). A reviewing court can only compel an agency to act "if there is 'a specific, 1 unequivocal command' placed on the agency to take a 'discrete agency action,' and the 2 agency has failed to take that action." Vietnam Veterans of Am. v. Cent. Intelligence 3 Agency, 811 F.3d 1068, 1075 (9th Cir. 2016) (quoting Norton v. S. Utah Wilderness 4 Alliance, 542 U.S. 55, 63-64 (2004)). “The agency action must be pursuant to a legal 5 obligation ‘so clearly set forth that it could traditionally have been enforced through a 6 writ of mandamus.’” Vietnam Veterans, 811 F.3d at 1075-76 (quoting Hells Canyon Pres. 7 Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010)). 8 Plaintiff asserts that waiting approximately three years for an interview and 9 adjudication of her asylum application constitutes an unreasonable delay. (Dkt. No. 1 at 10 9.) Defendants counter that the mere passage of time in processing an I-589 application 11 is insufficient to constitute unreasonable delay. 12 When determining whether an agency’s delay is reasonable, Courts apply the 13 “TRAC factors.” The TRAC factors include: 14 (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 15 the speed with which it expects the agency to proceed in the enabling statute, 16 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 17 tolerable when human health and welfare are at stake; (4) the court should 18 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 19 nature and extent of the interests prejudiced by the delay; and (6) the court 20 need not 'find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. 21

22 Independence Mining Co. v. Babbitt, 105 F.3d 502, 507 n.7 (9th Cir. 1997) (quoting 23 Telecomm. Research and Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)). 24 The TRAC factors applied here favor the Defendants. The first and second factors 25 require the Court to review the USCIS policy regarding asylum review scheduling. The 26 Defendants have explained at length the policy and historical reasons that have driven the 27 changes to the application processing system which now operates as a Last-In-First-Out 28 (“LIFO”) system. (Dkt. No. 4.) TRAC factor one requires a “rule of reason” for the 1 application system and the Defendants have convincingly asserted that LIFO is “a 2 sensible administrative response to the problem of increased frivolous, fraudulent, or 3 meritless asylum filings that increase the overall caseload and extend wait periods for all 4 applicants.” (Dkt. No. 4 at 18). 5 With respect to the second factor, the Court concludes that Congress has provided 6 a clear timetable for the processing of asylum applications. 8 U.S.C. §§ 7 1158(d)(5)(A)(ii)-(iii). While the statutory guidelines provide a clear expectation that the 8 initial interview should commence within 45 days – with a final adjudication to be 9 completed within 180 days – the plain language of 8 U.S.C. § 1158(d)(5)(A) clarifies that 10 the timing requirements are not mandatory. Thus, the timetable, while clear, does not 11 outweigh the rule of reason which supports the USCIS policies which have caused the 12 challenged delays. The first factor favors the Defendants and the second factor is neutral. 13 The third, fifth, and sixth factors favor the Defendants. Plaintiff asserts concerns 14 that delays in adjudicating asylum claims could render even the strongest claims stale and 15 remote. (Dkt. No. 7 at 20.) Furthermore, Plaintiff contends that she is forced to reside 16 without permanent status which is problematic for securing specialized employment, 17 educational opportunities, home purchasing, car purchasing, and other activities. (Id.) 18 Further, the delay in processing Plaintiff’s application has had a psychological impact. 19 (Dkt. No. 1 at 4.) However, the Court notes Plaintiff continues to reside in the United 20 States pending the processing of her application and is authorized to work pursuant to 8 21 U.S.C. § 1158(d)(2). Although the Court recognizes the difficulty in waiting for the 22 asylum interview and the processing of Plaintiff’s application, the risk to human health 23 and welfare, the potential prejudice of the delay, and the lack of any impropriety behind 24 the delay all favor denial of relief. 25 Furthermore, Plaintiff concedes that the fourth factor, competing priority, favors 26 the Defendants. (Dkt. No. 7 at 20.) Plaintiff recognizes that advancing her asylum 27 application for interview and adjudication may negatively affect other applicants in a 28 similar position. (Id.) Other courts have noted the importance of competing priority in 1 resolving TRAC factor analysis ordering that even if all other TRAC factors favored relief, 2 it was sufficient to deny relief based on the fourth factor alone. Mashpee Wampanoag 3 Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (2003); In re Barr Laboratories, 4 Inc., 930 F.2d 72, 75 (1991). Here, granting relief to the Plaintiff simply moves her to 5 the front of the line at the expense of all other applicants who may not have filed an 6 application for mandamus relief. Therefore, this factor, and the overall TRAC analysis, 7 weighs against granting relief. 8 Defendants observe that findings of unreasonable delay in the adjudication of 9 immigration applications have been confined to I-485 applications: Bayene v. Napolitano, 10 No. C 12-01149 WHA, 2012 WL 2911838 (N.D. Cal. Jul. 13, 2012); Kahn v. Johnson, 11 65 F.Supp.3d 918 (C.D. Cal. 2014); Islam v. Heinauer, 32 F.Supp.3d 1063 (N.D. Cal. 12 2014). (Dkt. No. 4 at 12.) These I-485 cases are distinguishable and have no bearing on 13 applying the TRAC factors to a case concerning an I-589 application. In Khan and Islam, 14 the courts focused primarily on TRAC factor one, concerning the rule of reason, and the 15 government’s failure to provide sufficient justification for the delay in adjudicating I-485 16 applications. See Islam, 32 F. Supp. 3d at 1072; Khan, 65 F. Supp. 3d at 930. There, the 17 government claimed that the delay was justified by a potential change in policy that may 18 affect the outcome of the I-485 applications at issue, but the courts found that a potential 19 change that may happen at some uncertain date was not a strong enough rule of reason on 20 which to base an extended delay. Meanwhile, in Beyene, the court did not actually find 21 unreasonable delay, noting that the case presented a “close call,” but noted that the 22 petitioner, who had been waiting for five years, could bring a new action in a year, at 23 which time the court may issue a different outcome. Beyene, No. C 12-01149 WHA, 24 2012 WL 2911838, at *9. In contrast, the rule of reason offered in the instant case – i.e., 25 the LIFO system – has been enacted to prevent fraud and abuse of the asylum system. 26 And finally, while none of the courts found that the length of the delay alone was 27 sufficient to find unreasonable delay, it is nevertheless worth noting that the Plaintiff here 28 has faced a delay of three years, and the plaintiffs in Beyene, Khan, and Islam faced 1 delays of at least five years. See Islam, 32 F. Supp. 3d at 1071-72 (“[C]ourts have 2 generally found delays of four years or less not to be unreasonable. By contrast, many 3 courts applying the TRAC factors have declined to find that delays exceeding six years 4 are reasonable.”) (citations omitted). 5 2. Mandamus Act 6 Mandamus is a remedy governed by equitable considerations and is only granted in 7 the exercise of sound discretion. Whitehouse v. Ill. C. R. Co., 349 U.S. 366, 373 (1955). 8 The Mandamus Act allows a district court to “compel an officer or employee of the 9 United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. 10 1361. “Mandamus is an extraordinary remedy and is available to compel a federal 11 official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the 12 official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from 13 doubt, and (3) no other adequate remedy is available.” Kildare v. Saenz, 325 F.3d 1078, 14 1084 (9th Cir. 2003) (quoting Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998)). Even if 15 the test is met, the district court still retains the discretion to deny relief. Johnson v. 16 Reilly, 349 F.3d 1149, 1154 (9th Cir. 2003). 17 Here, Plaintiff’s claim is not clear and certain. Section 1158(d)(7) of the INA 18 makes clear that no provision of § 1158 is subject to a private right of action against the 19 government. Ivantchouk v. United States AG, 417 F. App'x 918, 921 (11th Cir. 2011). 20 Because Plaintiff is not afforded a private right of action against Defendants, she has 21 failed to state a claim for which relief can be granted. As such, the Court concludes that 22 Plaintiff’s claim therefore fails the first prong of the Mandamus Act and she is not 23 entitled to relief. 24 3. Due Process 25 Plaintiff claims that Defendants’ changes to the administrative process of 26 adjudicating pending asylum applications violates her due process rights. (Dkt. No. 1 at 27 8.) Regardless of citizenship, the Due Process Clause of the Constitution protects 28 everyone within the territory of the United States. Zadvydas v. Davis, 533 U.S. 678, 693 1 (2001). They must be afforded the opportunity to “be heard at a meaningful time and in a 2 meaningful manner.” Mathew v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations 3 omitted). “Parties claiming denial of due process in immigration cases must, in order to 4 prevail, ‘allege some cognizable prejudice fairly attributable to the challenged process.’” 5 Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2nd Cir. 2008) (quoting Lattab v. 6 Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004)). 7 Here, the Plaintiff has not suffered a cognizable deprivation of rights because the 8 plain language of § 1158(d)(7) expressly disclaims any substantive or procedural rights 9 under the statute. See Vang v. Gonzales, 237 F. App'x 24, 31 (6th Cir. 2007). 10 Furthermore, “the government's delay in scheduling or conducting immigration 11 proceedings does not violate due process.” Id.; see also Mudric v. AG of the United 12 States, 469 F.3d 94, 99 (3d Cir. 2006) (“federal immigration laws do not vest in aliens a 13 constitutional right to have their immigration matters adjudicated in the most expeditious 14 manner possible.”). 15 Another court in this district has already rejected a due process challenge to a delay 16 in adjudicating an asylum proceeding. See Lajin, 2019 WL 3388363 (S.D. Cal. July 26, 17 2019). There, the court relied on a Sixth Circuit decision where the court considered the 18 argument that the government’s 14-year delay in completing the plaintiffs’ asylum 19 proceedings deprived them of due process. Vang v. Gonzales, 237 F. App’x 24 (6th Cir. 20 2007). Specifically, the Sixth Circuit rejected the plaintiffs’ reliance on the 45-day 21 timeframe set out in § 1158(d)(5)(A)(ii), noting that the section plainly clarified that there 22 be no substantive or procedural right or benefit. Id. In Lajin, the court likewise found 23 that a three-and-a-half year delay did not constitute a deprivation of due process. 2019 24 WL 3388363 (S.D. Cal. July 29, 2019). And finally, the Court notes that other courts 25 have found that even longer delays than what Plaintiff has experienced in the 26 immigration context did not violate a plaintiff’s due process rights. 27 Accordingly, the Court sees no reason to depart from established precedent here 28 and finds that Plaintiff has failed to adequately allege a due process violation. 1 4. Political Question 2 To the extent Plaintiff raises a political question, “judicial deference to the 3 || Executive Branch is especially appropriate in the immigration context.” Ins v. Aguirre- 4 ||Aguirre, 526 U.S. 415, 425 (1999). Here, Plaintiff argues that, inter alia, the asylum 5 || application process is flawed, lacks reason, is understaffed, and underfunded. (Dkt. No. 6 || 1, 7.) However, it is the sole prerogative of Congress to allocate funds and set funding 7 || priorities. See Siwen Zhang vy. Cissna, No. CV 18-9696-MWE (JCx), 2019 U.S. Dist. 8 || LEXIS 130884, at 13 (C.D. Cal. Apr. 25, 2019). Moreover, in light of its rulings on the 9 || first three arguments, the Court finds it unnecessary to address the political question 10 || argument in further detail. See also Lajin, 2019 WL 3388363 (“The Court declines to 11 || analyze the political question argument in light of its rulings on the first four 12 || arguments.”’) 13 CONCLUSION 14 Although parties are typically allowed to amend their pleadings, such leniency 15 || does not extent to cases in which any amendment would be an exercise in futility. See 16 || Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998); see also Lajin, 17 WL 3388363 (S. D. Cal. July 29, 2019) (dismissing with prejudice a complaint 18 || based on similar causes of action and delay in asylum application processing). Based on 19 || the reasoning above, the Court concludes that Plaintiff could not feasibly amend her 20 || complaint to assert a plausible claim for relief. 21 The Court GRANTS Defendants motion to dismiss and DISMISSES Plaintiff’ □ 22 ||Complaint with prejudice and without leave to amend. The Clerk of Court is instructed 23 enter judgment accordingly and close this case. 24 IT IS SO ORDERED. 25 Dated: October 22, 2019 <=

27 United States District Judge 28