1:25-cv-21846•Case Name in Immigration Case - Unavailable
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 25-CV-21846-BLOOM/Elfenbein BLANCA MACHADO, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. ___________________________________/ REPORT AND RECOMMENDATION ON MOTION TO DISMISS THIS CAUSE is before the Court on Defendants United States Department of Homeland Security (“DHS”), United States Citizenship and Immigration Services (“USCIS”), Secretary of the Department of Homeland Security Kristi Noem (“Noem”), Acting Director of USCIS Kika Scott (“Scott”), and Director of the USCIS Miami Asylum Office Varsenik Papazian (“Papazian”)’s Motion to Dismiss Complaint for Writ of Mandamus and Injunctive Relief Under the Administrative Procedures Act (the “Motion”), ECF No. [11]. The Honorable Beth Bloom referred the Motion to me “for a Report and Recommendation” (“R&R”). See ECF No. [21]. For the reasons explained below, I respectfully RECOMMEND that the Motion, ECF No. [11], be GRANTED in part and DENIED in part. Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 1 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 2 I. BACKGROUND1 Plaintiff filed an application for asylum protection with USCIS on January 24, 2022. See ECF No. [1] at 3. DHS “is the federal agency statutorily responsible for adjudicating asylum claims from persons who are not in removal proceedings,” and “USCIS is the DHS component that” actually adjudicates those asylum applications. See ECF No. [1] at 2. The asylum “process includes collecting biometric data for the applicant, conducting an interview with the applicant, and ultimately issuing a decision by an Asylum Officer adjudicating the asylum claim.” See ECF No. [1] at 3. “Defendants currently schedule asylum interviews on a last in, first out basis.” See ECF No. [1] at 3. This last in, first out (“LIFO”) policy “schedules asylum interviews based on three priorities: (1) applications that were scheduled for an interview, but the interview was rescheduled; (2) applications that have been pending 21 days or less; and (3) all other pending asylum applications starting with newer filings and working backward to older filings.” See ECF No. [1] at 3–4. Plaintiff’s asylum application has been pending for more than three years, so she falls into the third category of the LIFO policy. See ECF No. [1] at 1, 3–4. USCIS has not yet scheduled an interview with Plaintiff, and Defendants have “unequivocally refused” Plaintiff’s request that her “case be adjudicated as soon as possible.” See ECF No. [1] at 3. And “[b]ecause the number of new asylum claims filed on a daily basis is larger than the number of asylum interviews scheduled per day, Plaintiff’s application will never be scheduled for an interview or fully 1 Because the Court evaluates a motion to dismiss and a request for a writ of mandamus, it takes the details in this section from the Complaint, see ECF No. [1], accepts them as true, and construes them in the light most favorable to Plaintiff. See, e.g., Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (“In deciding a [Federal Rule of Civil Procedure] 12(b)(6) motion to dismiss, the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff.”); Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (“In resolving whether [28 U.S.C. §] 1361 [mandamus] jurisdiction is present, allegations of the complaint, unless patently frivolous, are taken as true to avoid tackling the merits under the ruse of assessing jurisdiction.” (citation omitted)). Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 2 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 3 adjudicated under Defendants’ scheduling policies.” See ECF No. [1] at 4. For that reason, Plaintiff “lacks any other effective remedy to resolve this issue without the action of the Court,” so she filed this lawsuit against Defendants on April 22, 2025. See ECF No. [1] at 4. In the Complaint, Plaintiff asserts two counts against Defendants. See ECF No. [1] at 4– 6. Count I asserts that Defendants have violated the Administrative Procedures Act (“APA”) by failing to perform “their non-discretionary duty to adjudicate Plaintiff’s asylum application within a reasonable time.” See ECF No. [1] at 5. Count II asks for mandamus relief based on Plaintiff’s assertions that she has a right to have her asylum claim adjudicated within a reasonable time, that Defendants have a “legal duty” to adjudicate the asylum claim in a reasonable time, and that Defendants have breached the duty “by failing to adjudicate Plaintiff’s asylum claim, or even schedule an interview, in over 3 years.” See ECF No. [1] at 5. In both Counts, Plaintiff alleges the delay is “unreasonable” because it “is 26 times the instructive deadlines set out by both Congress and DHS for performance of these duties,” it has harmed her welfare, and her “interview will never be scheduled under current policies.” See ECF No. [1] at 5–6. She alleges she “has exhausted all available administrative remedies,” including by requesting that her “case be processed,” and there “are no alternative adequate or reasonable forms of relief available to” her. See ECF No. [1] at 5–6. As relief, Plaintiff requests that Defendants be compelled to conduct her “asylum interview within the next 30 days,” to issue a decision on her asylum claim “in the 30 days following” that interview, and to provide “regular status updates on” her asylum claim, including her “position in the backlog, until the claim is fully adjudicated.” See ECF No. [1] at 7. In response to the Complaint, Defendants filed the Motion in which they contend that Count I should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because it fails to Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 3 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 4 state a claim and that Count II should be dismissed under Rule 12(b)(1) because the Court lacks subject-matter jurisdiction to adjudicate it. See ECF No. [11] at 1–2. Defendants argue Count I fails to state a claim because Plaintiff has not identified what “instructive deadlines” they have not met, they “are under no statutory requirement to adjudicate” her asylum application within any specific timeframe, courts have found “similar pending times of three years or more to be reasonable,” and Plaintiff’s “frustration is inherent in the immigration process and does not justify” her “bypassing other applicants” who “have been waiting a similar or even longer time.” See ECF No. [11] at 3–5. Defendants argue the Court is without jurisdiction to consider Count II because Plaintiff cannot prove the first or second factor of the three-factor mandamus test, as “there is no congressional, statutory, or administrative authority establishing an asylum application must be adjudicated within a specific timeframe,” and it is within their “discretion to determine the pace of adjudication of asylum applications.” See ECF No. [11] at 6. Defendants also argue “Plaintiff has an adequate alternative relief available through the APA,” which forecloses mandamus relief. See ECF No. [11] at 7. Finally, Defendants argue that, if the Court determines it has jurisdiction to adjudicate Plaintiff’s mandamus claim, it should deny that claim under Rule 12(b)(6) for the reasons explained above as to her APA claim. See ECF No. [11] at 7. In her Response, as to her APA claim (Count I), Plaintiff argues there is no confusion about what instructive deadlines she means and that, in any event, she uses those deadlines only as an indication of unreasonableness, not to assert any right to enforce them. See ECF No. [12] at 6. She avers that, while Defendants have discretion over the timing of her asylum application, they do not have discretion to hold her application indefinitely, which her central allegation under the LIFO policy. See ECF No. [12] at 7–8. Similarly, she argues an indefinite delay is unreasonable as a Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 4 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 5 matter of law. See ECF No. [12] at 8–10. She asserts that she is not trying to “jump the line” impermissibly and that, regardless, that argument relies on “statements of fact not found in the Complaint,” which is improper at the motion-to-dismiss stage. See ECF No. [12] at 11. Finally, Plaintiff argues she has adequately alleged harm from the indefinite delay, including damage to her mental health and financial welfare. See ECF No. [12] at 11–12. As to her mandamus claim (Count II), Plaintiff responds that the asylum statute and implementing regulations impose on Defendants a “clear, non-discretionary duty” to adjudicate her application and that she alleges “not merely delay, but complete abandonment” of that duty because the LIFO policy creates a “mathematical impossibility of adjudication.” See ECF No. [12] at 13–14. She argues that Defendants’ case law and statutory authority is distinguishable because “the issue here is not the pace at which Defendants are adjudicating Plaintiff’s asylum application” but instead “that Defendants will never adjudicate the application because they have relegated Plaintiff’s application to a backlog of cases to which Defendants do not dedicate resources and mathematically will never address.” See ECF No. [12] at 15–17. Finally, she states the Court need not decide whether the APA provides adequate alternative relief because where a plaintiff “seeks to use the Court’s mandamus jurisdiction to compel action but not to direct the exercise of judgement or discretion, mandamus jurisdiction is coextensive with the remedies available under the APA.” See ECF No. [12] at 17. In their Reply, Defendants provide a fuller description of the LIFO policy, including that through the policy “USCIS schedules affirmative asylum interviews along two tracks simultaneously.” See ECF No. [13] at 2. “On the second track, USCIS assigns some of its asylum officers to complete affirmative asylum applications pending in the backlog, starting with the oldest applications and working forward. This permits some of the oldest pending applications to Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 5 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 6 be completed in chronological order.” See ECF No. [13] at 2. As a result, Defendants “maintain” that Plaintiff’s application “will [be] adjudicated consistent with the LIFO policy,” which courts have determined is an “identifiable rationale” that is reasonable as a matter of law. See ECF No. [13] at 2. The Motion is now ripe for review. II. LEGAL STANDARDS A. Motion to Dismiss Under Rule 12(b), a party may move to dismiss a claim on several bases, including a “lack of subject-matter jurisdiction,” Fed. R. Civ. P. 12(b)(1), and a “failure to state a claim upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6). “The Federal Rules of Civil Procedure require the dismissal of a claim if a court lacks subject matter jurisdiction over it.” Griffin v. IRS, 730 F. Supp. 3d 1312, 1316 (S.D. Fla. 2024) (citing Fed. R. Civ. P. 12(b)(1), (h)(3)). “A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). “A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Id. at 1232–33 (citation omitted). “By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony.” Id. at 1233. “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,” but “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration adopted, quotation marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 6 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 7 level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citation and footnote omitted). A complaint does not “suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration adopted, quotation marks omitted). Instead, 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.” Id. (quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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.” Id. (citation and quotation marks omitted). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Id. (alteration adopted, citation and quotation marks omitted). And when evaluating a motion to dismiss, “[c]ourts must liberally construe and accept as true allegations of fact in the complaint and inferences reasonably deductible therefrom, but need not accept factual claims that are internally inconsistent, facts which run counter to facts of which the court can take judicial notice, conclusory allegations, unwarranted deductions, or mere legal conclusions asserted by a party.” Campos v. INS, 32 F. Supp. 2d 1337, 1343 (S.D. Fla. 1998); see also Dusek, 832 F.3d at 1246. Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 7 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 8 B. Subject-Matter Jurisdiction “Federal courts are courts of limited subject-matter jurisdiction,” Hensley v. Hartford Cas. Ins. Co., 113 F.4th 1327, 1332 (11th Cir. 2024) (quotation marks omitted), and they have an independent obligation to determine whether subject-matter jurisdiction exists, see Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004); Alfassi v. Garland, 614 F. Supp. 3d 1252, 1254 (S.D. Fla. 2022). “A district court can hear a case only if it has at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Hensley, 113 F.4th at 1332 (quotation marks omitted). “Although the APA independently does not confer subject-matter jurisdiction, 28 U.S.C. § 1331 confers jurisdiction on federal judges to review agency action under federal-question jurisdiction.” Perez v. U.S. Citizenship & Immigr. Servs., 774 F.3d 960, 965 (11th Cir. 2014); Osechas Lopez v. Mayorkas, 649 F. Supp. 3d 1278, 1287 (S.D. Fla. 2023). “The APA, however, expressly excepts review under its provisions where ‘statutes preclude judicial review,’ or ‘agency action is committed to agency discretion by law.’” Perez, 774 F.3d at 965 (quoting 5 U.S.C. § 701(a)). If a court at any time concludes it does not have subject-matter jurisdiction over a claim, the court must dismiss that claim without prejudice. See, e.g., Fed. R. Civ. P. 12(h)(3); Mahone v. Ray, 326 F.3d 1176, 1178 n.2 (11th Cir. 2003) (explaining a district court lacking subject-matter jurisdiction “lacked the power to deny” a motion and was instead “obligated to dismiss” it); Mirage Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1401 (11th Cir. 2000). C. The INA and the APA The Immigration and Nationality Act (“INA”) authorizes aliens who are physically present in the United States to apply for asylum. See 8 U.S.C. § 1158(a)(1). The asylum statute gives the Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 8 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 9 Attorney General the duty to “establish a procedure for the consideration of asylum applications,” id. § 1158(d)(1), which she did through the creation of regulations, see 8 C.F.R. §§ 208.1–.25. The asylum statute also provides that the Secretary of DHS or the Attorney General “may grant asylum to an alien who has applied for asylum in accordance with” those “requirements and procedures,” see 8 U.S.C. § 1158(b)(1)(A), and the regulations direct that “USCIS shall adjudicate the claim of each asylum applicant whose application is complete,” see 8 C.F.R. § 208.9(a). And the statute directs that “in the absence of exceptional circumstances, the initial interview or hearing on the asylum application shall commence not later than 45 days after the date an application is filed” and the “final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed.” See id. § 1158(d)(5)(A)(ii)–(iii). Despite those seemingly mandatory deadlines, however, a later subsection explains that nothing 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.”2 See id. § 1158(d)(7). And other provisions of the INA make clear that “no court shall have jurisdiction to review” any “decision or action” that is “in the discretion of the Attorney General or the Secretary of” DHS. See 8 U.S.C. § 1252(a)(2)(B)(ii). Courts in this Circuit have construed that provision to preclude review of “discretionary decisions or actions of USCIS.” See 2 Congress seemingly confirmed that these deadlines are aspirational in a different provision enacted to help “eliminate the current backlog in the processing of immigration benefit applications within 1 year” and “maintain the elimination of the backlog in future years.” See 8 U.S.C. § 1571(a)(1). In § 1571, Congress codified its sense “that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” Id. § 1571(b) (emphasis added); see also id. § 1572 (defining “backlog” as “the period of time in excess of 180 days that such application has been pending” and “immigration benefit application” as “any application or petition to confer, certify, change, adjust, or extend any status granted under the” INA). As courts in this District have recognized, § 1571 “does not impose a mandatory pace for adjudicating applications.” See, e.g., Mafundu v. Mayorkas, 699 F. Supp. 3d 1310, 1318 (S.D. Fla. 2023). Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 9 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 10 Hasan v. Wolf, 550 F. Supp. 3d 1342, 1345 (N.D. Ga. 2021). Relatedly, the APA provides that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” See 5 U.S.C. § 555. If an agency fails to do so, or if a party is “adversely affected or aggrieved by agency action within the meaning of a relevant statute,” that party “is entitled to judicial review.” See id. § 702 (providing that a “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review”); id. § 704 (noting that “final agency action for which there is no other adequate remedy in a court” is “subject to judicial review”). As part of its judicial review, a court “shall . . . compel agency action unlawfully withheld or unreasonably delayed.” See id. § 706. But § 706 “empowers a court only to compel an agency to perform a ministerial or non- discretionary act, or to take action upon a matter, without directing how it shall act.” See Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (quotation marks omitted). And “APA review does not apply when ‘(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.’” Kanapuram v. Dir., U.S. Citizenship & Immigr. Servs., 131 F.4th 1302, 1306 (11th Cir. 2025) (quoting 5 U.S.C. § 701(a)). “Congress has given the agencies wide discretion in the area of immigration processing.” Echeverri v. U.S. Citizenship & Immigr. Servs., No. 23-CV-21711-RAR, 2023 WL 5350810, at *6 (S.D. Fla. Aug. 21, 2023) (citation omitted). Indeed, the Eleventh Circuit recently held “that § 1252(a)(2)(B)(ii) precludes jurisdiction over challenges to USCIS delays in adjudicating” other kinds of immigration applications. See Kanapuram, 131 F.4th at 1305–06 (analyzing application for lawful permanent resident status). D. Mandamus “A district court may issue a writ of mandamus to compel a government agency to perform Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 10 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 11 a duty pursuant to the Mandamus Act.” Osechas Lopez, 649 F. Supp. 3d at 1284; see also 28 U.S.C. § 1361 (“The district courts shall 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.”). “However, a district court can issue a writ of mandamus only if: (1) the plaintiff clearly has a right to the relief that is being sought, (2) the defendant has a clear duty to act in the situation, and (3) there is no other adequate remedy available.” Osechas Lopez, 649 F. Supp. 3d at 1284; see also Cash, 327 F.3d at 1258. “Put another way, a writ of mandamus ‘is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.’” Cash, 327 F.3d at 1258 (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)); see also Hollywood Mobile Ests. Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1268 (11th Cir. 2011) (A “district court may grant a petition for a writ of mandamus if the defendant owes the plaintiff a clear nondiscretionary duty and the plaintiff has exhausted all other avenues of relief.” (quotation marks omitted)). “Mandamus is ‘an extraordinary remedy which should be utilized only in the clearest and most compelling of cases.’” Osechas Lopez, 649 F. Supp. 3d at 1284 (quoting Cash, 327 F.3d at 1257). “A writ of mandamus will not be granted if alternative remedies are available.” Hollywood Mobile, 641 F.3d at 1268; see also Heckler, 466 U.S. at 616; Cash, 327 F.3d at 1258. Indeed, “[e]ven if all three elements are satisfied, a writ is ‘granted only in the exercise of sound discretion.’” Osechas Lopez, 649 F. Supp. 3d at 1284 (quoting Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 373 (1955)); see also Cash, 327 F.3d at 1257–58 (“Although the issuance of a writ of mandamus is a legal remedy, it is largely controlled by equitable principles and its issuance is a matter of judicial discretion.” (citation omitted)). “The test for jurisdiction is whether mandamus would be an appropriate means of relief.” Cash, 327 F.3d at 1258 (citation omitted). And the Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 11 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 12 plaintiff “bears the burden of showing that the right to issuance of the writ is ‘clear and indisputable.’” Osechas Lopez, 649 F. Supp. 3d at 1284 (quoting Carpenter v. Mohawk Indus. Inc., 541 F.3d 1048, 1055 (11th Cir. 2008)). The Eleventh Circuit has made clear that when a plaintiff “has sued under the APA,” he “cannot satisfy the requirements for mandamus relief” because the APA “provides an adequate remedy.” See Serrano v. U.S. Atty. Gen., 655 F.3d 1260, 1264 (11th Cir. 2011) (finding plaintiff had “not demonstrated that he lack[ed] an adequate alternative remedy for obtaining relief”). Indeed, the “availability of relief under the” APA “forecloses a grant of a writ of mandamus.” See Hollywood Mobile, 641 F.3d at 1268. For that reason, courts in this District regularly dismiss mandamus claims for lack of subject-matter jurisdiction when the plaintiff also has a claim under the APA. See, e.g., Mafundu v. Mayorkas, 699 F. Supp. 3d 1310, 1313–14 (S.D. Fla. 2023); Nascimento v. U.S. Dep’t of Homeland Sec., 689 F. Supp. 3d 1245, 1248–49 (S.D. Fla. 2023); Osechas Lopez, 649 F. Supp. 3d at 1284–86 & n.3; Alfassi, 614 F. Supp. 3d at 1255–56; Grinberg v. Swacina, 478 F. Supp. 2d 1350, 1354 (S.D. Fla. 2007); Marmol v. McHenry, No. 25-CV-20499, 2025 WL 1865120, at *3 (S.D. Fla. July 7, 2025). And the Eleventh Circuit regularly affirms those dismissals. See, e.g., Serrano, 655 F.3d at 1264 (“Because [plaintiff] has an adequate remedy available to him, the district court properly dismissed his request for mandamus relief.”). III. DISCUSSION To recap, Defendants argue Plaintiff’s APA claim in Count I should be dismissed under Rule 12(b)(6) for failing to state a claim, and her mandamus claim in Count II should be dismissed under Rule 12(b)(1) for lack of subject-matter jurisdiction or alternatively under Rule 12(b)(6) for failure to state a claim. Because Defendants’ arguments on Count II primarily challenge the Court’s power to hear the claim, the Court begins with that Count. Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 12 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 13 A. Mandamus Claim (Count II) Starting with Plaintiff’s mandamus claim, abundant precedent makes clear that the Court does not have jurisdiction to decide it. Indeed, the Court can issue a writ of mandamus here only if Plaintiff has a clear right to the relief she seeks, Defendants have a clear duty to provide it, and she has no other adequate remedy. See Cash, 327 F.3d at 1258; Osechas Lopez, 649 F. Supp. 3d at 1284. Plaintiff cannot meet any of those requirements. First, the relief Plaintiff seeks is that Defendants be compelled to conduct her asylum interview within the next 30 days, to issue a decision on her asylum claim in the 30 days following that interview, and to provide regular status updates on her asylum claim, including her position in the backlog, until the claim is fully adjudicated. See ECF No. [1] at 7. But while Defendants have a clear and mandatory duty to adjudicate her asylum application eventually, see 5 U.S.C. § 555; 8 C.F.R. § 208.9(a), they do not have a clear and mandatory duty to adjudicate it within her “preferred timeframe,” see Mafundu, 699 F. Supp. 3d at 1314. Despite the mandatory language in § 1158(d) establishing statutory deadlines of 45 days to schedule an interview and 180 days to adjudicate an asylum claim, see 8 U.S.C. § 1158(d)(5)(A)(ii)–(iii), a later portion of that subsection makes clear that those deadlines do not “create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers,” see id. § 1158(d)(7). “Therefore, those ‘deadlines’ do not create a private right of action.” See Marmol, 2025 WL 1865120, at *3. For that reason, Plaintiff cannot meet the first two requirements for mandamus relief (a clear right to the relief she seeks and Defendants’ clear duty to provide it). See id.; Cash, 327 F.3d at 1258. Second, even if Plaintiff could meet the first two requirements, she still could not meet the third one. Mandamus relief will not be granted if alternative remedies are available, and Plaintiff Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 13 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 14 has an alternative remedy here: her APA claim. See Heckler, 466 U.S. at 616; Serrano, 655 F.3d at 1264; Hollywood Mobile, 641 F.3d at 1268; Cash, 327 F.3d at 1258. While Plaintiff argues that, under the circumstances here, mandamus jurisdiction is coextensive with the remedies available under the APA, see ECF No. [12] at 17, that proposition does not give the Court subject-matter jurisdiction over her mandamus claim, see Grinberg, 478 F. Supp. 2d at 1355. Instead, it supports “assess[ing] the merits of both claims . . . under the APA.” See id. As a result, this Court joins its colleagues in concluding that it does not have subject-matter jurisdiction to decide Plaintiff’s mandamus claim. See, e.g., Mafundu, 699 F. Supp. 3d at 1313– 14; Nascimento, 689 F. Supp. 3d at 1248–49; Osechas Lopez, 649 F. Supp. 3d at 1284–86 & n.3; Alfassi, 614 F. Supp. 3d at 1255–56; Grinberg, 478 F. Supp. 2d at 1354; Marmol, 2025 WL 1865120, at *3. Accordingly, I respectfully RECOMMEND that the Motion, ECF No. [11], be GRANTED as to Count II and that Count II be DISMISSED. See Serrano, 655 F.3d at 1264; Hollywood Mobile, 641 F.3d at 1268; Fed. R. Civ. P. 12(h)(3); Mahone, 326 F.3d at 1178 n.2. B. APA Claim (Count I) Moving to the APA claim, Plaintiff’s central allegation is that, under the LIFO policy, Defendants will never adjudicate her asylum application because that policy does not merely delay adjudication but instead makes adjudication mathematically impossible. See ECF No. [1] at 5–6; ECF No. [12] at 13–17. Plaintiff argues that distinction differentiates her claim from the claims of other plaintiffs who have challenged the pace or timing of Defendants’ adjudication of their immigration applications because she alleges Defendants’ indefinite delay is, in effect, a complete abandonment of their statutory duty to adjudicate her application. See ECF No. [1] at 5–6; ECF No. [12] at 13–17; cf. 5 U.S.C. § 555; 8 U.S.C. § 1158(d)(5)(A)(ii)–(iii). The Court agrees. While the law supports a conclusion that the pace and timing of adjudicating immigration Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 14 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 15 applications are entirely within Defendants’ discretion, see, e.g., Kanapuram, 131 F.4th at 1305– 06; Alfassi, 614 F. Supp. 3d at 1256; Grinberg, 478 F. Supp. 2d at 1355; Hasan, 550 F. Supp. 3d at 1349, the same is not true as it relates to Defendants’ statutory duty to adjudicate immigration applications. On that point, Plaintiff is correct that Defendants’ duty is nondiscretionary. See 5 U.S.C. § 555 (requiring agencies to conclude matters presented to them); 8 C.F.R. § 208.9(a) (requiring USCIS to adjudicate complete asylum applications); Girges v. Sec’y, Dep’t of Homeland Sec., No. 22-CV-158-GAP-LHP, 2022 WL 2774211, at *3 (M.D. Fla. June 8, 2022) (“Congress did not leave the adjudication of asylum applications to the Government’s discretion.” (footnote omitted)). “The Government simply does not possess unfettered discretion to relegate aliens to a state of limbo, leaving them to languish there indefinitely. To conclude otherwise would be to nullify critical provisions of the APA and the text of the asylum statute.” Girges, 2022 WL 2774211, at *3 (citation and quotation marks omitted). Because Defendants must at some point adjudicate Plaintiff’s asylum application, see 5 U.S.C. § 555; 8 C.F.R. § 208.9(a), and because Plaintiff alleges under the LIFO policy that they never will, ECF No. [1] at 5–6; ECF No. [12] at 13–17 (alleging Defendants relegated her application to a backlog of cases to which they do not dedicate resources and which, therefore, they mathematically will never address), Plaintiff has alleged Defendants have failed to perform a nondiscretionary duty. While Defendants explain in their Reply that the LIFO policy actually has two tracks and that Plaintiff’s application ultimately will be adjudicated through one of those tracks, see ECF No. [13] at 2, at this stage of the litigation, the Court must accept Plaintiff’s factual allegations as true and take them in the light most favorable to her.3 See Dusek, 832 F.3d at 1246; 3 While the Court typically does not consider materials outside the Complaint when evaluating a motion to dismiss, it can consider any documents “incorporated in the complaint by reference,” see Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir. 2014), and any documents incorporated by reference within the motion if Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 15 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 16 Campos, 32 F. Supp. 2d at 1337. And accepting as true that Defendants are following a policy that makes the adjudication of Plaintiff’s asylum application a “mathematical impossibility,” see ECF No. [12] at 13–14, Plaintiff has adequately stated a claim on which relief could be granted. See 5 U.S.C. §§ 555, 706; 8 C.F.R. § 208.9(a); Norton, 542 U.S. at 64 (noting § 706 empowers courts to compel an agency to perform a non-discretionary act). Accordingly, I respectfully RECOMMEND that the Motion, ECF No. [11], be DENIED as to Count I. IV. CONCLUSION For the reasons explained above, I respectfully RECOMMEND that the Motion, ECF No. [11], be GRANTED in part and DENIED in part. Specifically, I RECOMMEND that Count II be DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction and that Count I be allowed to proceed, requiring Defendants to file their Answer and Affirmative Defenses within 20 days of the Court’s Order. The Parties will have fourteen (14) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with the Honorable Beth Bloom, United States District Judge. Failure to timely file objections shall bar the Parties from a de novo determination by the District Judge of an issue covered in the Report and shall bar the Parties from attacking on appeal unobjected-to factual and legal conclusions contained in this they are “central to the plaintiff’s claim” and their “authenticity” is “not challenged,” see Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005). Here, the parameters of the LIFO policy are not fully set out in the Complaint, but the policy is referenced in the Complaint. Defendants purport to set out the policy in its entirety in their Reply; however, because sur-replies are not typically allowed, it is unclear to the Court whether the authenticity of the policy in the Reply is unchallenged. But even if the Court had authority to consider the LIFO policy set forth in the Reply in deciding the Motion, nothing in the LIFO policy itself demonstrates that Plaintiff’s allegation of mathematical impossibility is “internally inconsistent” with that policy, see Campos, 32 F. Supp. 2d at 1343; therefore, the Court must credit Plaintiff’s allegation at this stage, see id. at 1337; Dusek, 832 F.3d at 1246; cf. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205–06 (11th Cir. 2007) (noting that if a document attached to the motion to dismiss “contradict[s] the general and conclusory allegations of the pleading, the” attached document “govern[s]”). Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 16 of 17
CASE NO. 25-CV-21846-BLOOM/Elfenbein 17 Report except upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1. RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on November 12, 2025. _____________________________________ MARTY FULGUEIRA ELFENBEIN UNITED STATES MAGISTRATE JUDGE cc: All Counsel of Record Case 1:25-cv-21846-BB Document 22 Entered on FLSD Docket 11/13/2025 Page 17 of 17
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