Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-21846-BLOOM/Elfenbein
BLANCA MACHADO,
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. CITIZENSHIP AND IMMIGRATION SERVICES;
KRISTI NOEM, in her official capacity as Secretary of
the Department of Homeland Security; KIKA SCOTT,
in her official capacity as Acting Director of U.S.
Citizenship and Immigration Services; and VARSENIK
PAPAZIAN, in her official capacity as Director of the
USCIS Miami Asylum Office,
Defendants.
_____________________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon 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’s (“Papazian”) (collectively (“Defendants”) Motion to Dismiss Complaint for Writ of
Mandamus and Injunctive Relief Under the Administrative Procedures Act (“Motion”). ECF No.
[11]. The Court referred the Motion to Magistrate Judge Marty Fulgueira Elfenbein for a Report
and 	Recommendation 	(“R&R”). 	ECF 	No. 	[21]. 	Judge 	Elfenbein 	issued 	her 	Report 	and
Recommendation, ECF No. [22], to which Defendants timely filed Objections. ECF No. [23].
Thereafter, Plaintiff filed a Response to Defendants’ Objections (“Response”). ECF No. [24]. For
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the reasons that follow, the Court adopts the R&R in part, rejects the R&R in part, and grants
Defendants’ Motion to Dismiss.
I. 	FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This action arises from Plaintiff’s application for asylum protection filed with USCIS on
January 24, 2022. ECF No. [1] at ¶ 3. Plaintiff’s application has been pending for more than three
years, and USCIS has yet to schedule an interview or otherwise adjudicate her application. Id. at
¶ 14. Plaintiff contends that the delayed adjudication is the result of USCIS’s last-in, first-out
(“LIFO”) policy. Id. at ¶ 20.
Pursuant to the policy, Plaintiff alleges that USCIS schedules interviews in the following
order of priority: “(1) applications that were scheduled for an interview, but the interview was
rescheduled; (2) applications that have been pending 21 days or less; and [lastly] (3) all other
pending asylum applications starting with newer filings and working backward to older filings.”
Id. at ¶ 16. Because Plaintiff’s application has been pending for more than 21 days, her application
has fallen into the third category. Accordingly, since USCIS reviews asylum applications in the
third category from newest to oldest, and “the number of new asylum claims filed on a daily basis
is larger than the number of asylum interviews scheduled per day,” the Complaint alleges that
Plaintiff’s “application will never be scheduled for an interview or fully adjudicated under
Defendants’ scheduling policies.” Id. Therefore, because USCIS’s policy purportedly renders it
impossible for Plaintiff to have her asylum application adjudicated, she filed the instant action
asserting two claims.
In Count I, Plaintiff asserts that Defendants violated the Administrative Procedures Act
(“APA”), due to their failure to perform “their non-discretionary duty to adjudicate Plaintiff’s
asylum application within a reasonable time.” Id. at ¶ 20. Count II seeks mandamus relief, as
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Plaintiff has a right and Defendants have a duty to adjudicate an asylum application within a
reasonable time, and Defendants’ failure to adjudicate Plaintiff’s application to this point
constitutes a breach of that duty. Id. at ¶ 25.1
Defendant moves to dismiss the Complaint, arguing that Plaintiff has failed to state a claim
in Count I, and the Court lacks jurisdiction to provide the relief requested in Count II. See ECF
No. [11] at 1-2. Regarding Count I, Defendants contend that while Plaintiff alleges that the delay
has been unreasonable, Plaintiff has not identified any instructive deadlines, let alone statutory or
regulatory requirements mandating that her asylum application be adjudicated within a specific
timeframe. See id. at 3. According to Defendants, the delay Plaintiff has experienced thus far is
also not unique or unreasonable and is unfortunately an inherent “frustration” of the immigration
process. Id. at 5.
As for Count II, Defendants argue that the Court lacks statutory jurisdiction to provide
mandamus relief because Defendants have discretion to determine the pace of adjudications, as
Defendants have no duty to adjudicate asylum claims within a specific timeframe. Id. at 6.
Additionally, Defendant argues there is no mandamus jurisdiction because Plaintiff has adequate
relief available under the APA. Id. at 7.
The 	Court 	referred 	Defendants’ 	Motion 	to 	Judge 	Elfenbein 	for 	a 	Report 	and
Recommendation (“R&R”). ECF No. [22]. In her R&R, Judge Elfenbein first recommended that
the Court dismiss Plaintiff’s Mandamus Act claim in Count II because the Court lacks statutory
jurisdiction over the claim. Id. at 14. Judge Elfenbein explained that to establish jurisdiction under
the Mandamus Act, Plaintiff must demonstrate that she “has a clear right to the relief she seeks
1 As a remedy, Plaintiff requests that Defendants be compelled to conduct an asylum interview within 30
days, and within 30 days of the interview, render a decision on her asylum claim. See ECF No. [1] at 7.
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[i.e., an interview within 30 days and adjudication within 30 days thereafter], Defendants have a
clear duty to provide it, and she has no other adequate remedy.” Id. at 13. Judge Elfenbein
concluded that Plaintiff failed to establish that she has a clear right to relief or that Defendants
have a clear duty to provide the relief sought, as the relevant statute and governing regulations do
not impose a “clear and mandatory duty to adjudicate [applications] within her ‘preferred
timeframe.” Id. Accordingly, no jurisdiction exists to adjudicate Count II.
However, with respect to Count I, Judge Elfenbein determined that Plaintiff plausibly
alleged an APA violation based on her allegation that the LIFO policy “does not merely delay
adjudication but instead makes adjudication mathematically impossible.” Id. at 14. According to
Judge Elfenbein, although the law is clear that Defendants have absolute discretion when it comes
to setting the pace and timing for review of immigration applications, Defendants do not have any
discretion as to whether they will adjudicate an application at all. Id. at 14-15. Consequently, Judge
Elfenbein found that because 5 U.S.C. § 555 and 8 C.F.R. § 208.9(a) require Defendants to
eventually adjudicate an asylum application, and because Plaintiff alleges that the LIFO policy
creates a situation where her application will never be reviewed, Plaintiff has established that
Defendants violated the APA by failing to carry out their non-discretionary duty. Id. at 15-16. As
such, Judge Elfenbein recommended that the Court should deny Defendants’ Motion to the extent
it seeks to dismiss Plaintiff’s APA claim in Count I. Id. at 16.
Defendants timely filed Objections to the R&R, disagreeing with Judge Elfenbein’s
conclusion that Plaintiff plausibly established that her asylum application will never be adjudicated
due to Defendants’ LIFO policy. ECF No. [23] at 2. According to Defendants, “Plaintiff’s
Application will [be] adjudicated consistent with the LIFO policy,” which courts have routinely
found to be reasonable as a matter of law. Id.
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Plaintiff responds 	that, at the pleadings stage, the Court must accept as true Plaintiff’s
allegation that “Defendants’ Last-In, First-Out (“LIFO”) policy ‘renders such adjudication a
mathematical impossibility.”’ ECF No. [24] at 2. Plaintiff maintains that Defendants’ argument
that the application will eventually be adjudicated (consistent with the LIFO policy) constitutes a
factual attack and is thus inappropriate to consider at this juncture. See id.
Furthermore, while Defendants contend that courts have found the LIFO policy to be
reasonable, Plaintiff argues that those cases involved dissimilar allegations to those contained in
her Complaint. See id. at 4. According to Plaintiff, none of the cases relied upon by Defendants
involved indefinite delays, but rather only lengthy delays. As such, those cases do not support a
dismissal of her APA claim.
II. 	LEGAL STANDARD
In reviewing a report and recommendation, the district court may accept, reject, or modify,
in whole or in part, a magistrate judge's recommendation. 28 U.S.C. § 636(b)(1). “In order to
challenge the findings and recommendations of the magistrate judge, a party must file written
objections 	which 	shall 	specifically 	identify 	the 	portions 	of 	the 	proposed 	findings 	and
recommendation to which objection is made and the specific basis for objection.” Macort v. Prem,
Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (alterations omitted) (quoting Heath v. Jones, 863
F.2d 815, 822 (11th Cir. 1989)). The objections must also present “supporting legal authority.”
S.D. Fla. L. Mag. J.R. 4(b). The portions of the report and recommendation to which an objection
is made are reviewed de novo only if those objections “pinpoint the specific findings that the party
disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009); see also Fed. R.
Civ. P. 72(b)(3). If a party fails to object to any portion of the magistrate judge’s report, those
portions are reviewed for clear error. Macort, 208 F. App’x at 784 (quoting Johnson v. Zema Sys.
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Corp., 170 F.3d 734, 739 (7th Cir. 1999)); see also Liberty Am. Ins. Grp., Inc. v. WestPoint
Underwriters, L.L.C., 199 F. Supp. 2d 1271, 1276 (M.D. Fla. 2001).
“It is improper for an objecting party to . . . [submit] papers to a district court which are
nothing more than a rehashing of the same arguments and positions taken in the original papers
submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the
apple’ when they file objections to a R & R.” Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012
WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors-Rate Emps.
Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)).
III. 	ANALYSIS
Because neither party objected, and the Court finds no clear error in the R&R’s
recommendation that the Mandamus Act claim be dismissed for lack of statutory jurisdiction,2 the
Court adopts Judge Elfenbein’s reasoning and dismisses Count II. Accordingly, the only question
left for the Court to resolve is whether Judge Elfenbein erred by concluding that Plaintiff plausibly
established 	an 	APA 	violation 	based 	on 	her 	allegation 	that 	the 	LIFO 	policy 	renders 	it
mathematically impossible for USCIS to ever review her asylum application.3
In her R&R, Judge Elfenbein distinguished the factual allegations in this case from the
many other district court decisions where courts have concluded that the LIFO policy constitutes
a valid rule of reason4 by pointing to Plaintiff’s allegation that the LIFO policy renders it
2 Neither Plaintiff nor Defendants objected to Judge Elfenbein’s conclusion that Count II—the Mandamus
should be dismissed for lack of statutory jurisdiction. See ECF Nos. [23], [24]. Accordingly, the
recommendation as to Count II is reviewed for clear error. See Macort, 208 F. App’x at 784.
3 Because Defendants specifically objected to the portion of the R&R addressing the plausibility of Count
I, the Court is required to review the issue de novo. See Schultz, 565 F.3d at 1360.
4 See e.g., Marmol v. McHenry, No. 25-CV-20499, 2025 WL 1865120, at *3 (S.D. Fla. July 7, 2025)
(“Courts routinely hold that LIFO “is a rule of reason[.]”) (citing Mafundu v. Mayorkas, 699 F. Supp. 3d
1310, 1317 (S.D. Fla. 2023) (collecting cases)).
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mathematically impossible for Defendants to review Plaintiff’s asylum application. In essence,
Judge Elfenbein concluded that the difference between allegations of an unreasonable delay and
an allegation of an indefinite delay was dispositive here, as the LIFO policy cannot satisfy the rule
of reason if Plaintiff’s application is never adjudicated. However, the Court finds that parsing the
difference between Plaintiff’s allegations and allegations in prior cases is unnecessary because the
LIFO policy currently in effect will not foreclose review of Plaintiff’s asylum petition.
Although the Court must generally accept Plaintiff’s allegations as true at the pleadings
stage, the Court is permitted to reject allegations by taking judicial notice of documents retrieved
from government websites that rebut a party’s factual allegation. See Sprengle v. Smith Mar. Inc.,
660 F. Supp. 3d 1337, 1350 (M.D. Fla. 2023) (explaining that a court may consider judicially
noticed documents at the motion to dismiss stage) (citing Bryant v. Avado Brands, Inc., 187 F.3d
1271, 1276-79 (11th Cir. 1999)); Anderson v. United States, 245 F. Supp. 2d 1217, 1221 (M.D.
Fla. 2002) (“The court will not accept as true allegations that are contradicted by facts that can be
judicially noticed . . ..”) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1363 (2d e.1990)); see also Abasov v. United States Citizenship & Immigr. Servs.,
No. 25-CV-1793 (PKC), 2025 WL 3706663, at *4, n. 7 (E.D.N.Y. Dec. 22, 2025) (specifically
recognizing that the court may take judicial notice of government websites); Singh v. U.S.
Citizenship & Immigr. Servs., No. 24-CV-3003 (LDH), 2025 WL 964145, at *1 n.3 (E.D.N.Y.
Mar. 31, 2025) (same) (citing Rynasko v. New York Univ., 63 F.4th 186, 191 n.4 (2d Cir. 2023)).
Looking to USCIS’s website,5 in addition to the general policy of reviewing asylum applications
5 	See 	U.S. 	Citizenship 	and 	Immigration 	Services, 	Affirmative 	Asylum 	Interview 	Scheduling,
https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/affirmative-asylum-interview-
scheduling (last accessed Feb. 12, 2026) (“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 be completed in chronological order.”).
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from newest to oldest, the agency “introduced ‘a second track, [in 2024,] in which other asylum
officers are assigned to I-589s in the backlog, starting with the oldest applications and working
forward.” Abasov v. United States Citizenship & Immigr. Servs., No. 25-CV-1793 (PKC), 2025
WL 3706663, at *4 (E.D.N.Y. Dec. 22, 2025) (citing Affirmative Asylum Interview Scheduling,
U.S. 	Citizenship 	and 	Immigr. 	Servs., 	https://www.uscis.gov/humanitarian/refugees-and-
asylum/asylum/affirmative-asylum-interview-scheduling (last updated Mar. 29, 2024) (explaining
that the second track “permits some of the oldest pending applications to be completed in
chronological order”); see also Tikhonov v. Mayorkas, No. 23-24572-CIV, 2024 WL 4692146, at
*5 (S.D. Fla. Nov. 6, 2024) (“USCIS bolstered its LIFO methodology by beginning to schedule
affirmative asylum interviews along two tracks simultaneously. DOJ 019. The first track uses the
LIFO priorities whereas the second track prioritizes FIFO to address the oldest pending cases. Id.
USCIS has dedicated some of its asylum officers to assist in reducing the backlog on the second
track permitting some of the oldest pending applications to be completed in chronological order.”).
Therefore, given that USCIS’s current LIFO policy requires that certain agents be
dedicated to addressing the backlog, the Court cannot accept Plaintiff’s allegation that adjudication
of her asylum petition is a “mathematical impossibility.” Even if an outsized number of new
applications come in compared to the number of daily interview slots available, the agents
responsible for working on the backlog will eventually, albeit slowly, work through the oldest
applications until they reach Plaintiff’s application. As a result, Plaintiff’s factual allegations are
virtually indistinguishable from those cases where courts have routinely found that the LIFO policy
constituted a valid rule of reason, and that the alleged delay was not so unreasonable as to amount
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to an APA violation.6 See e.g., Nascimento v. United States Dep’t of Homeland Sec., 689 F. Supp.
3d 1245, 1251 (S.D. Fla. 2023); Mafundu v. Mayorkas, 699 F. Supp. 3d 1310, 1318 (S.D. Fla.
2023). Consequently, because Plaintiff’s factual allegations do not plausibly undermine the fact
that USCIS’s LIFO policy is a valid rule of reason which does not deprive Plaintiff of her right to
have her asylum application reviewed, the Court rejects that portion of Judge Elfenbein’s R&R
and dismisses Count I.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	The Report and Recommendation, ECF No. [22], is ADOPTED in part and
REJECTED in part.
2. 	The Report and Recommendation is adopted to the extent it recommends
dismissing Count II, but rejected to the extent it recommends permitting Plaintiff
to proceed on Count I.
3. 	Defendants’ Motion to Dismiss, ECF No. [11], is GRANTED.
4. 	Plaintiff’s Complaint, ECF No. [1], is DISMISSED WITHOUT PREJUDICE.
5. 	To the extent not otherwise disposed of, all pending motions are DENIED AS
MOOT and all deadlines are TERMINATED.
6 Plaintiff does not contend that, even if USCIS did eventually review her asylum application, the current delay would
be unreasonable, and the requested relief would therefore still be appropriate. As such, the Court need not consider
the remaining TRAC factors to determine whether the requested agency action has been unreasonably delayed here.
See Tikhonov v. Mayorkas, No. 23-24572-CIV, 2024 WL 4692146, at *4 (S.D. Fla. Nov. 6, 2024) (describing the
following 6 TRAC factors courts typically balance to determine whether agency action has been unreasonably delayed:
“(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 agency 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 the delay, and (6) the court need not find
any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed”).
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6. 	The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, on February 12, 2026.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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