Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
XIAYUAN SHEN,
Plaintiff,
-against-
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES,
Defendant.
------------------------------------x
MEMORANDUM & ORDER
25-cv-1621 (EK)
ERIC KOMITEE, United States District Judge:
Xiayuan Shen seeks a writ of mandamus under 28 U.S.C.
§ 1361 compelling the United States Citizenship and Immigration
Services (“USCIS”) to act on her I-589 Application for Asylum
and for Withholding of Removal (“I-589”). 	Plaintiff, proceeding
pro se, alleges undue delay processing her I-589 application,
which has been pending since late 2022.
USCIS now moves to dismiss plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). 	For the
reasons set out below, that motion is granted.
Background
The following facts are drawn from the complaint and
public sources. 	Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir.
Case 1:25-cv-01621-EK Document 11 Filed 03/10/26 Page 1 of 7 PageID #:
<pageID>

2
2012) (permitting “judicial notice of relevant matters of public
record”).1 	All facts discussed herein are undisputed.
Plaintiff, a citizen of China, applied for asylum in
September 2022. 	Compl. 4, ECF No. 1. 	When plaintiff filed the
instant action, her I-589 application had been pending for over
two years. 	Id.
The Immigration and Nationality Act permits “[a]ny
alien who is physically present in the United States or who
arrives in the United States” to apply for asylum, “irrespective
of such alien’s status.” 	8 U.S.C. § 1158(a)(1). 	To obtain
asylum, an applicant must file an I-589 application and
establish either past persecution or fear of future persecution.
8 U.S.C. §§ 1101(a)(42)(A), § 1158(b)(1)(B)(i).
USCIS processes asylum applications on one of three
tracks. 	On the first track, USCIS agents generally process the
newest applications first (“last in first out”) to dissuade
individuals from filing frivolous applications solely to acquire
work authorization. 	Affirmative Asylum Interview Scheduling,
USCIS.2 	On the second track, certain USCIS asylum officers are
assigned to review applications pending in the backlog,
beginning with the oldest applications first. 	Id. 	Finally,
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
2 https://perma.cc/ZG89-GB2C (last updated Mar. 29, 2024).
Case 1:25-cv-01621-EK Document 11 Filed 03/10/26 Page 2 of 7 PageID #:
<pageID>

3
USCIS may process an application out of order if the applicant
files an expedite request demonstrating an urgent humanitarian
need. 	Id.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient “to state a claim to
relief that is plausible on its face.” 	Bell Atlantic Corp v.
Twombly, 550 U.S. 544, 570 (2007).3 	A claim is facially
plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). 	The Court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in
the plaintiff’s favor. 	See Lundy v. Cath. Health Sys. of Long
Island Inc., 711 F.3d 106, 113 (2d Cir. 2013). 	At the same
time, the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” 	Iqbal, 556 U.S. at
678.
3 “[W]hether the . . . requirements for a writ of mandamus present a
jurisdictional or merits inquiry remains an open question in this circuit.”
Jan v. Mayorkas, No. 24-CV-1686, 2025 WL 964092, at *2 n.4 (E.D.N.Y. Mar. 31,
2025). 	But the “better and more modern view is that [the Court has] subject
matter jurisdiction over the alleged claim, [and] plaintiffs have failed to
adequately state it.” 	City of New York v. USPS, 519 F. Supp. 3d 111, 127 n.9
(E.D.N.Y. 2021).
Case 1:25-cv-01621-EK Document 11 Filed 03/10/26 Page 3 of 7 PageID #:
<pageID>

4
Discussion
A. 	Mandamus Act Claim
Mandamus relief under Section 1361 is “an
extraordinary remedy.” 	Escaler v. USCIS, 582 F.3d 288, 292 (2d
Cir. 2009). 	To obtain such relief, a plaintiff must establish
three elements: (1) she has a “clear right” to the relief, (2)
the defendant has a “plainly defined and peremptory duty” to
complete the act at issue, and (3) there is no other adequate
remedy. 	Anderson v. Bowen, 881 F.2d 1, 5 (2d Cir. 1989).
Plaintiff has not demonstrated a “clear right” to the
relief she seeks. 	On the contrary, the applicable federal
statute explicitly states that USCIS’s timelines for
adjudicating I-589 applications create no legally enforceable
right or benefit. 	See 8 U.S.C. § 1158(d)(7); see also Chen v.
Wolf, No. 19-CV-9951, 2020 WL 6825681, at *3 (S.D.N.Y. Nov. 20,
2020) (a “chorus of other courts” agree).
Plaintiff also cannot demonstrate the absence of
alternative remedies. 	Like other, similarly situated
plaintiffs, she has at least two: an APA claim for unreasonable
delay and the administrative remedy provided by USCIS — a
request to expedite her application based on an urgent
humanitarian emergency. 	See, e.g., Zheng v. Garland, No. 22-CV-
6039, 2024 WL 333090, at *5 (E.D.N.Y. Jan. 29, 2024)
Case 1:25-cv-01621-EK Document 11 Filed 03/10/26 Page 4 of 7 PageID #:
<pageID>

5
(identifying the same alternatives in a similar mandamus
action).
Because plaintiff has not met two of the elements
required for mandamus relief, her claim must be dismissed.
B. 	APA Claim
Even if we liberally construed plaintiff’s complaint
to claim unreasonable delay of agency action under Section 706
of the Administrative Procedure Act (“APA”),4 that claim would
also warrant dismissal.
Processing time alone does not support an unreasonable
delay claim. 	See, e.g., Espin v. Gantner, 381 F. Supp. 2d 261,
266 (S.D.N.Y. 2005). 	Thus, courts must consider the factors
laid out in Telecommunications Research and Action Center v.
FCC, 750 F.2d 70 (D.C. Cir. 1985) (the “TRAC factors”).5 	See
Hossain v. USCIS, No. 24-CV-5039, 2025 WL 218828, at *2–3
(E.D.N.Y. Jan. 16, 2025) (applying TRAC factors to similar APA
4 “Because [Shen] filed [her] complaint pro se, we must liberally
construe [her] pleadings, and must interpret [her] complaint to raise the
strongest arguments it suggests.” 	Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.
2007).5 The TRAC 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.” 	750
F.2d at 80.
Case 1:25-cv-01621-EK Document 11 Filed 03/10/26 Page 5 of 7 PageID #:
<pageID>

6
claim); Singh v. USCIS, No. 24-CV-3003, 2025 WL 964145, at *3–4
(E.D.N.Y. Mar. 31, 2025) (same).
On the first TRAC factor, many courts have found that
USCIS’s system for prioritizing I-589 applications is guided by
a “rule of reason,” even if the system is not perfect. 	See Jan,
2025 WL 964092, at *4 (collecting cases). 	Courts have also
repeatedly found that TRAC factor two disfavors asylum
applicants because the timetables provided by Congress are
unenforceable. 	See Hossain, 2025 WL 218828, at *3 (collecting
cases). 	And plaintiff articulates no prejudice arising from the
alleged delay (factors three and five).
Finally, even if all the other TRAC factors favored
plaintiff, it would still be appropriate to deny her requested
relief because “the effect of expediting [her] delayed action on
agency activities of a higher or competing priority” (TRAC
factor four) would simply be to “move all others back one space
and produce no net gain.” 	Xu v. Cissna, 434 F. Supp. 3d 43, 54
(S.D.N.Y. 2020).
For the foregoing reasons, the defendant’s motion to
dismiss is granted. 	The dismissal is with prejudice, “as
repleading cannot cure the defects of [her] mandamus claim.”
See Ji v. USCIS, No. 24-CV-4815, 2026 WL 171879, at *7 (E.D.N.Y.
Jan. 22, 2026). 	The Clerk of the Court is respectfully directed
Case 1:25-cv-01621-EK Document 11 Filed 03/10/26 Page 6 of 7 PageID #:
<pageID>

7
to mail a copy of this Order to plaintiff, note the mailing on
the docket, and close the case.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	March 10, 2026
Brooklyn, New York
Case 1:25-cv-01621-EK Document 11 Filed 03/10/26 Page 7 of 7 PageID #:
<pageID>