Ngwi v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ADELINE CHO NGWI,
Plaintiff,
v.
KRISTI NOEM, ET AL.
Defendants.
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Case No. TJS-25-1007
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MEMORANDUM OPINION
Pending before the Court is a Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment (“Motion”) (ECF No. 17) filed on behalf of Defendants Pamela Bondi, Kelly
O. Hayes, Jedidah Hussey, Kristi Noem, and Kika Scott (“Defendants”).1 Plaintiff Adeline Cho
Ngwi (“Ms. Ngwi”) has not filed a response and the time to do so has passed. See Loc. R. 105.2(a).
The Motion is now ripe for decision. Having considered the Motion, the Court finds that a hearing
is unnecessary. See Loc. R. 105.6. For the following reasons, Defendants’ Motion is granted.
I. 	Background
The following facts are derived from Ms. Ngwi’s Complaint (ECF No. 1) and are taken as
true for purposes of evaluating Defendants’ Motion. Ms. Ngwi filed a Form I-589 Application for
Asylum and Withholding of Removal with the Arlington Asylum Office on August 8, 2023. ECF
No. 1 at ¶ 14. On the same date, the United States Citizenship and Immigration Services (“USCIS”)
received her application. Id. Ms. Ngwi has complied with all requests by USCIS and has contacted
1 In accordance with 28 U.S.C. § 636(c), all parties have voluntarily consented to have the
undersigned conduct all further proceedings in this case, including trial and entry of final
judgment, and conduct all post-judgment proceedings, with direct review by the Fourth Circuit
Court of Appeals if an appeal is filed. ECF No. 16.
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USCIS on numerous occasions inquiring into the status of her application. Id. at ¶ 15, 18. USCIS
informed her that her application is still pending and there is no estimate as to when it will be
adjudicated. Id. at ¶ 18. According to Ms. Ngwi, the uncertainty of her legal immigration status
and the delay in her application processing have caused her emotional distress. Id. at ¶ 22.
Additionally, her time spent completing and inquiring into the status of her application have
resulted in significant time spent away from work. Id.
Ms. Ngwi seeks to compel action on her asylum application. Id. at ¶ 1. She alleges that
USCIS’s delay in processing her asylum application is unreasonable and violates the following:
(1) the Mandamus Act, 28 U.S.C. §§ 1361, 1651; (2) the Administrative Procedure Act, 5 U.S.C.
§§ 555, 701 (“APA”); (3) the Declaratory Judgment Act, 28 U.S.C. § 2201; and (4) the Equal
Access to Justice Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412. Id. at ¶¶ 30-55.
II. 	Discussion
a. 	Legal Standard
Defendants seek dismissal under Rule 12(b)(1) and Rule 12(b)(6). A motion to dismiss
under Rule 12(b)(1) for lack of subject matter jurisdiction challenges a court’s authority to hear
the matter brought by a complaint. Richardson v. Mayor & City Council of Balt., No. RDB-13-
1924, 2014 WL 60211, at *2 (D. Md. Jan. 7, 2014). There are two ways to present a Rule 12(b)(1)
motion to dismiss: “A defendant may either contend (1) that the complaint fails to allege facts
upon which subject matter jurisdiction can be based, or (2) that the jurisdictional facts alleged in
the complaint are untrue.” Buchanan v. Consolidated Stores Corp., 125 F. Supp. 2d 730, 736 (D.
Md. 2001) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). The plaintiff bears the
burden of proving that subject matter jurisdiction properly exists in federal court. See Evans v. B.F.
Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
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Generally, “questions of subject matter jurisdiction must be decided ‘first, because they
concern the court’s very power to hear the case.’” Owens-Illinois, Inc. v. Meade, 186 F.3d 435,
442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.30[1]
(3d ed. 1998)). The court should grant a Rule 12(b)(1) motion to dismiss “only if the material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.”
Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991).
Rule 12(b)(6) permits a court to dismiss a complaint if it fails to “state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A
complaint must consist of “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. “Federal Rule of Civil
Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader
is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint
generally “does not need detailed factual allegations.” Id. So long as the factual allegations are
“enough to raise a right to relief above the speculative level,” the complaint will be deemed
sufficient. Id. A “well-pleaded complaint may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. at 556
(internal quotation marks omitted).
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint, [and not
to] ‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.’”
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Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (citing Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir.1992)). “A party’s failure to respond [to a Rule 12(b)(6) motion
to dismiss] . . . does not relieve the court of determining whether the complaint is legally sufficient
on its face.” Guzman v. Acuarius Night Club LLC, No. 24-1555, 2026 WL 406093, at *3 (4th Cir.
Feb. 13, 2026). When considering a motion to dismiss, a court must accept as true the well-pled
allegations of the complaint and “construe the facts and reasonable inferences derived therefrom
in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.
1997). While a court must take the facts in the light most favorable to the plaintiff, it “need not
accept the legal conclusions drawn from the facts” and “need not accept as true unwarranted
inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P’ship, 213 F.3d 175, 180 (4th Cir. 2000).
In the alternative, Defendants argue they are entitled to summary judgment. ECF No. 17-
1. Motions to dismiss styled in the alternative as motions for summary judgment implicate the
court’s discretion under Rule 12(d). See Morey v. Carroll Cnty., No. ELH-17-2250, 2018 WL
2064782, at *6 (D. Md. May 3, 2018). Generally, courts do not resolve factual disputes or consider
matters outside the pleadings when ruling on a motion to dismiss. Id. However, in a Rule 12(b)(1)
motion, the court “may consider evidence outside the pleadings” to help determine whether it has
jurisdiction over the case before it. Richmond, 945 F.2d at 768; see also Evans, 166 F.3d at 647.
Otherwise, “[i]f a party presents, and the court considers, matters outside the pleadings, ‘the
motion must be treated as one for summary judgment under Rule 56.’” Tangmoh v. Majorkas, No.
JMC-21-2792, 2022 WL 1538627, at *2 (D. Md. May 16, 2022) (quoting Fed. R. Civ. P. 12(d)).
If construing the motion as a motion for summary judgment, the Court must “thoroughly
analyz[e]” the motion, even if it is unopposed. See id. at *3 (internal quotation marks omitted).
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Whether the Motion is construed as a motion to dismiss or motion for summary judgment,
Plaintiff’s claims fail. But because Defendants’ jurisdictional claims are dispositive, the Court will
analyze the Motion as one to dismiss the complaint.
b. 	Analysis
i. 	Mandamus Act Claim
Under the Mandamus Act, district courts have “original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. The extraordinary remedy of mandamus
may be issued “only if [the plaintiff] has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984).
Mandamus can be used only to compel ministerial acts of federal government officers, not
discretionary duties. Asare v. Ferro, 999 F. Supp. 657, 659 (D. Md. 1998); see also Meyers v.
United States Dist. Ct. for Dist. of Md. Balt. Div., No. DKC-23-3015, 2024 WL 493268, at *2 (D.
Md. Feb. 8, 2024) (“A ministerial act is one in which the law prescribes and defines a duty to be
performed with such precision as to leave nothing to the exercise of discretion or judgment.”). A
party seeking mandamus relief bears the heavy burden to show that (1) the petitioner has a clear
right to the relief sought; (2) the respondent has a clear duty to do the particular act requested by
the petitioner; and (3) no other adequate remedy is available. See Asare, 999 F. Supp. at 659; In re
Beard, 811 F.2d 818, 826 (4th Cir. 1987).
In the absence of exceptional circumstances, USCIS is statutorily required to adjudicate
asylum 	applications 	within 	180 	days 	of 	the 	date 	the 	application 	was 	filed. 	8 	U.S.C.
§ 1158(d)(5)(A)(iii). However, there is no private right of action available if USCIS exceeds this
timeline. Section 1158(d)(7) states, “[n]othing in this subsection shall be construed to create any
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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.” 8 U.S.C. § 1158(d)(7). While the statute
does not explicitly state that the 180-day timeline is discretionary, “it is apparent that USCIS enjoys
broad discretion regarding how swiftly such decisions are made” and “the pace at which the
Secretary adjudicates asylum actions is subject to § 1252(a)(2)(B)(ii)’s jurisdictional bar and
cannot be reviewed in court.” Tangmoh, 2022 WL 1538627, at *3 (quoting Daniel v. Mayorkas,
No. RDA/JFA-20-1099, 2021 WL 4355355, at *3 (E.D. Va. Sept. 23, 2021)); see also Polfliet v.
Cuccinelli, 955 F.3d 377, 382 (4th Cir. 2020) (“A statute need not literally contain the word
‘discretion’ in order to ‘specify’ discretion.”).
Ms. Ngwi cannot prevail on her mandamus claim because Defendants do not owe her a
clear statutory duty, which is required to compel agency action under the Mandamus Act. There is
no private right of action under § 1158(d) to enforce the 180-day timeframe for adjudication of
asylum applications, and courts within the Fourth Circuit have consistently held that this timeline
is discretionary. Defendants therefore did not owe a “clear nondiscretionary duty” to Ms. Ngwi
and this Court lacks subject matter jurisdiction over her mandamus claim. See Noumbissie v.
Garland, No. RDB-22-3357, 2023 WL 8600510, at *2 (D. Md. Nov. 1, 2023); see also Pesantez
v. Johnson, No. BMC-15-1155, 2015 WL 5475655, at *2 (E.D.N.Y. Sept. 17, 2015) (holding that
“[i]t is beyond serious dispute” that mandamus relief for asylum adjudications “is unavailable to
compel compliance with a statutory obligation when the underlying statute expressly disclaims a
private right of action”). The Motion is granted as to this claim. Plaintiff’s mandamus claim is
dismissed.
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ii. 	Administrative Procedure Act Claim
The APA permits courts to compel an agency action if it is “unlawfully withheld or
unreasonably delayed[.]” 5 U.S.C. § 706(1); Gonzalez v. Cuccinelli, 985 F.3d 357, 365 (4th Cir.
2021). To state a cause of action under the APA, a party “must point to a provision within the APA
that authorizes judicial review of the relevant agency’s action.” Noumbissie, 2023 WL 8600510,
at *2 (citing NAACP v. Bureau of the Census, 945 F.3d 183, 191 (4th Cir. 2019)). Absent such a
provision, courts lack jurisdiction to review agency actions. See NAACP v. Bureau of the Census,
945 F.3d at 191 (finding that failure to identify agency actions eligible for judicial review under
the APA is a “jurisdictional defect”). Moreover, “[t]he APA precludes judicial review if the agency
action is discretionary.” Noumbissie, 2023 WL 8600510, at *2 (citing 5 U.S.C. § 701(a)). Indeed,
“where an agency is not required to do something, [a court] cannot compel the agency to act—let
alone to act faster.” Gonzalez, 985 F.3d at 366 (citing Norton v. S. Utah Wilderness All., 542 U.S.
55, 63 n.1 (2004)).
Here, “the timeframe for adjudicating asylum applications is discretionary, as the relevant
statutes do not provide a specific timeframe in which applications should be adjudicated.”
Noumbissie, 2023 WL 8600510, at *2. In exercising its discretion for adjudicating applications
within the 180-day timeline, the Attorney General has the authority to “establish a procedure for
the consideration of asylum applications” in the manner best suited to adjudicate the applications.
8 U.S.C. § 1158(d)(1). Because the statutory timeframe is discretionary and there is no provision
in the APA authorizing judicial review of adjudications that exceed 180 days, this Court lacks
jurisdiction to review Ms. Ngwi’s APA claim. Pursuant to Rule 12(b)(1), Defendants’ Motion is
granted as to the APA claim. Plaintiff’s APA claim is dismissed.
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Alternatively, even if this Court had jurisdiction over Ms. Ngwi’s APA claim, she still fails
to state a claim because adjudication of her asylum application is not “unreasonably delayed” under
the APA. “The APA requires that an agency conclude proceedings ‘within a reasonable time.’”
Noumbissie, 2023 WL 8600510, at *2 (quoting Reddy v. Commodity Futures Trading Comm'n,
191 F.3d 109, 120 (2d Cir. 1999)). Thus, to compel agency action under the APA, the Court must
find that USCIS’s delay is unreasonable, a determination that is governed by the six-factor test set
forth in Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”). See
South Carolina v. United States, 907 F.3d 742, 759 (4th Cir. 2018) (stating “[t]he TRAC factors
weigh, inter alia, the interests at stake and the effect of expediting the delayed agency action”);
Aghamohammadi v. Rubio, No. DKC-24-2801, 2025 WL 2687343, at *11 (D. Md. Sept. 19, 2025)
(explaining that “many courts have chosen to analyze the TRAC factors at the motion to dismiss
stage”) (collecting cases). The TRAC factors are used only when there is a challenge of an agency
decision being “unreasonably delayed.” Id. The factors are:
(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 the speed with
which it expects the agency to proceed in the enabling statute, 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 tolerable when human health and welfare
are at stake; (4) the court should 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 nature and extent of the interests prejudiced by delay; and (6) the
court need not find any impropriety lurking behind agency lassitude in order to hold
that agency action is unreasonably delayed.
TRAC, 750 F.2d at 80 (internal citations omitted).
This Court has previously held that USCIS’s use of “a combination of a ‘Last-In First-Out’
(“LIFO”) policy and a backlog reduction effort [] together create[] a ‘rule of reason.’” Tawah v.
Mayorkas, No. TJS-23-2920, 2024 WL 2155060, at *3 (D. Md. May 14, 2024). It is also well
established that although Congress provided a 180-day timetable through which it expects asylum
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applications to be adjudicated, “it also provided that this timeline is unenforceable and gave the
agency discretion to depart from it in exceptional circumstances, such as the current backlog.”
Noumbissie, 2023 WL 8600510, at *3 (citing 8 U.S.C. § 1158(d)(7)). Defendants’ Motion
extensively discusses the causes for USCIS’s current backlog and the agency’s response, both of
which have delayed the processing of Ms. Ngwi’s application. ECF No. 17-1 at 3-9. And while
this backlog has resulted in adjudications outside of the 180-day timeline, the agency continues to
employ the LIFO policy and has instituted several other reasonable procedures and technologies
to continue mitigating the backlog. ECF No. 17-1 at 14. The first and second TRAC factors strongly
favor Defendants.
The third and fifth factors are typically considered together. See Aghamohammadi, 2025
WL 2687343, at *13. These factors assess whether “human health and welfare are at stake” and
the “nature and extent of the interests prejudiced by delay.” Id. (quoting TRAC, 750 F.2d at 80).
Ms. Ngwi has not alleged that her health and welfare are at stake, and her ability to remain in the
United States while her application is pending provides assurance of this. See ECF No. 17-1 at 14;
Noumbissie, 2023 WL 8600510, at *3. As for the fifth factor, the only interests that Ms. Ngwi has
alleged to be prejudiced by the delay are her emotional wellbeing while she awaits a decision and
the time that she has been forced to spend inquiring as to the status of her application. See ECF
No. 1 at ¶ 22. These factors slightly favor Ms. Ngwi, but they are not dispositive.
The considerations in the fourth TRAC factor weigh heavily in Defendants’ favor, and this
factor “carries the greatest weight.” Milligan v. Pompeo, 502 F. Supp. 3d 302, 319 (D.D.C. 2020).
In assessing this factor, the Court must “consider the effect of expediting delayed action on agency
activities of a higher or competing priority.” TRAC, 750 F.2d at 80. If “a judicial order putting [the
petitioner] at the head of the queue [would] simply move[ ] all others back one space,” courts will
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not grant relief. Jahangiri v. Blinken, No. DKC-23-2722, 2024 WL 1656269, at *11 (D. Md. Apr.
17, 2024) (alterations in original) (quoting Milligan, 502 F. Supp. 3d at 319). Plaintiff’s request
would do just that. See Aghamohammadi, 2025 WL 2687343, at *13. Notably, Ms. Ngwi does not
allege that she was singled out for mistreatment or treated differently from other similarly situated
asylum 	applicants. 	Expediting 	the 	adjudication 	of 	Ms. 	Ngwi’s 	application 	would 	delay
adjudication of applications with competing or higher priorities, “such as those involving credible
fear at the border and unaccompanied minors.” Tawah, 2024 WL 2155060, at *3. This factor favors
Defendants. Finally, Ms. Ngwi has not alleged, nor is there evidence of, impropriety on the part of
Defendants. This factor is neutral.
In sum, factors one, two, and four favor Defendants. Factors three and five slightly favor
Ms. Ngwi. Factor six is neutral. The factors favoring Defendants, particularly the heavily weighted
fourth factor concerning competing agency priorities, substantially outweigh those favoring Ms.
Ngwi. Accordingly, USCIS’s delay is not unreasonable.
This Court has routinely held that delays of three-to-four years are not unreasonable. See,
e.g., Noumbissie, 2023 WL 8600510, at *3 (considering whether its finding of no unreasonable
delay under the TRAC factors was consistent with holdings of other district courts); Tawah, 2024
WL 2155060, at *3 (finding an asylum application pending for less than four years was not
unreasonable); Begum v. United States Dep’t of State, et al., No. JMC-22-478, 2022 WL
16575703, at *7 (D. Md. Oct. 31, 2022) (explaining that district courts generally find “immigration
delays in excess of five, six, seven years are unreasonable, while those between three to five years
are often not unreasonable[]”) (quoting Sarlak v. Pompeo, No. BAH-20-35, 2020 WL 3082018, at
*6 (D.D.C. June 10, 2020)) (internal quotation marks omitted). Ms. Ngwi’s application has been
pending for less than three years, which is significantly less time than what courts consider to be
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unreasonable delay. Under the TRAC factors, and consistent with this Court’s previous decisions,
Ms. Ngwi fails to state a claim that her application has been unreasonably delayed under the APA.
Plaintiff’s APA claim is dismissed.
iii. 	Declaratory Judgment Act and Equal Access to Justice Act Claims
“[T]he Declaratory Judgment Act does not by itself confer subject matter jurisdiction on
the federal courts.” Correspondent Servs. Corp. v. First Equities Corp., 442 F.3d 767, 769 (2d Cir.
2006); see also Capitol Broad. Co., Inc. v. City of Raleigh, N. Carolina, 104 F.4th 536, 540 (4th
Cir. 2024) (“In passing the [Declaratory Judgment] Act, while ‘Congress enlarged the range of
remedies available in federal courts,’ it ‘did not extend their jurisdiction.’”) (quoting Skelly Oil
Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)). Because the Court does not have an
independent basis for jurisdiction under the Mandamus Act or APA, the Court lacks subject matter
jurisdiction over Ms. Ngwi’s Declaratory Judgment Act claim. See Fangfang Xu v. Cissna, 434 F.
Supp. 3d 43, 60-61 (S.D.N.Y. 2020). And because Ms. Ngwi is not the “prevailing party,” as
required by the Equal Access to Justice Act, she is not entitled to an award of costs and fees. See
5 U.S.C. § 504. Plaintiff’s Declaratory Judgment Act and Equal Access to Justice Act claims are
dismissed.
III. 	Conclusion
For the reasons set forth above, Defendants’ Motion (ECF No. 17) is GRANTED, and this
case is DISMISSED WITHOUT PREJUDICE. An accompanying Order follows.
February 18, 2026 	/s/
Date 	Timothy J. Sullivan
Chief United States Magistrate Judge
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