Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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H. JI,
Plaintiff,
MEMORANDUM
v. 	AND ORDER
24-CV-4815-SJB
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, et al.,
Defendants.
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BULSARA, United States District Judge:
Plaintiff H. Ji filed this action under the Administrative Procedure Act (“APA”)
and the Mandamus Act against Defendants United States Citizenship and Immigration
Services (“USCIS”); its New York Asylum Office; Joseph B. Edlow, Director of USCIS;1
Kristi Noem, Secretary of the U.S. Department of Homeland Security; Ted H. Kim,
Associate Director of the USCIS Refugee, Asylum, and International Operations
Directorate; Matthew Varghese, Director of the New York Asylum Office; and the U.S.
Attorney’s Office (collectively, “Defendants”) seeking to compel adjudication of his
asylum application, which has been pending since February 28, 2022. (Am. Compl.
dated Feb. 14, 2025 (“Am. Compl.”), Dkt. No. 13 ¶ 45). Defendants have moved to
dismiss. (Defs.’ Mot. to Dismiss dated June 3, 2025 (“Defs.’ Mot. to Dismiss”), Dkt. No.
23-1). For the reasons explained below, Defendants’ motion to dismiss is granted in
part and denied in part.
1 The Clerk of Court is respectfully directed to substitute Joseph B. Edlow for
Andrew J. Davidson in the caption of this case. See Fed. R. Civ. P. 25(d); Leadership, U.S.
Customs & Immigr. Servs., https://perma.cc/2WGW-FX3M (last visited Jan. 7, 2026).
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STANDARD OF REVIEW
“To survive a motion to dismiss [pursuant to Rule 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) (quotations omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. A complaint must contain more than “naked
assertion[s] devoid of further factual enhancement.” Id. (quotations omitted). In other
words, a plausible claim contains “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.; Fed. R.
Civ. P. 8(a)(2). “Factual allegations must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint are true
(even if doubtful in fact)[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). The determination of whether a party has alleged a plausible claim is “a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
This pleading requirement “does not impose a probability standard at the
motion-to-dismiss stage.” Mosaic Health, Inc. v. Sanofi-Aventis U.S., LLC, 156 F.4th 68, 77
(2d Cir. 2025) (noting that plausibility does not equate to probability). And “on a Rule
12(b)(6) motion it is not the province of the court to dismiss the complaint on the basis
of the court’s choice among plausible alternatives. Assuming that [plaintiff] can adduce
sufficient evidence to support its factual allegations, the choice between or among
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plausible interpretations of the evidence will be a task for the factfinder.” Id.
(quotations omitted).
For the purpose of this motion, the Court is “required to treat” the Plaintiff’s
“factual allegations as true, drawing all reasonable inferences in favor of [Plaintiff] to
the extent that the inferences are plausibly supported by allegations of fact.” In re Hain
Celestial Grp., Inc. Secs. Litig., 20 F.4th 131, 133 (2d Cir. 2021). The Court “therefore
recite[s] the substance of the allegations as if they represented true facts, with the
understanding that these are not findings of the court, as we have no way of knowing at
this stage what are the true facts.” Id.
In addition to the Amended Complaint, the Court considers documents that are
incorporated by reference, documents that are integral to the pleading, and documents
of which the Court may take judicial notice. DiFolco v. MSNBC Cable LLC, 622 F.3d 104,
111 (2d Cir. 2010); Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d
Cir. 2006) (“A court may take judicial notice of a document filed in another court not for
the truth of the matters asserted in the other litigation, but rather to establish the fact of
such litigation and related filings.” (quotations omitted)). To that end, “[w]hen
considering a motion made pursuant to Rule 12(b)(6)[,] [the Court] may take judicial
notice of documents from official government websites.” Rynasko v. N.Y. Univ., 63 F.4th
186, 191 n.4 (2d Cir. 2023) (quotations omitted). “Before taking judicial notice of a
document, a district court must consider whether ‘no serious question as to [its]
authenticity can exist,’ and whether the contents of the document are ‘facts capable of
accurate and ready determination by resort to sources whose accuracy cannot
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reasonably be questioned.’” James v. Bradley, 808 F. App’x 1, 3 (2d Cir. 2020) (first
quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); then quoting Kramer v. Time
Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)). “When the court takes judicial notice of
documents, it must rely on such documents only for the fact that the statement was
made.” Ark. Pub. Emps. Ret. Sys. v. Bristol-Myers Squibb Co., 28 F.4th 343, 352 (2d Cir.
2022). Put differently, “even where a public record is properly the subject of judicial
notice, a court may take judicial notice only of the content of the record” and “may not
rely on the document for the truth of the matters asserted therein.” James, 808 F. App’x
at 3 (citation omitted).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Ji, a citizen of the People’s Republic of China, applied for asylum in the United
States after experiencing persecution there. (Am. Compl. ¶¶ 17–18). USCIS received
Ji’s asylum application on February 28, 2022. (Id. ¶ 45).
On July 11, 2024, Ji commenced this action seeking relief under the APA and the
Mandamus Act. (Compl. dated July 11, 2024 (“Compl.”), Dkt. No. 1). Defendants
requested a premotion conference (“PMC”) to dismiss Ji’s original Complaint, (Defs.’
Mot. for PMC dated Nov. 1, 2024, Dkt. No. 10), which the Court denied, without
prejudice to renewal, after permitting Ji to file an amended complaint. (Order dated
Jan. 14, 2025).2 Ji filed his Amended Complaint on February 14, 2025, which Defendants
now seek to dismiss. (Am. Compl.; Defs.’ Mot. to Dismiss at 1).
2 The case was transferred to the undersigned on February 7, 2025.
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When Ji commenced this action, his asylum application had been pending for
over two years. (Am. Compl. ¶ 47; Compl. ¶ 47). To date, Ji’s asylum application has
been pending for approximately three years and eleven months. Ji alleges that the
delay is causing him irreparable harm, because he is 63 years old with health issues, and
has been separated from his wife and children, one of whom has an intellectual
disability, who remain in China. (Am. Compl. ¶¶ 48–50). Ji seeks an order under the
APA or the Mandamus Act compelling Defendants to adjudicate his asylum
application. (Id. ¶¶ 1, 62–76).
DISCUSSION
I. 	APA Claim
The APA “imposes a general but nondiscretionary duty upon an administrative
agency to pass upon a matter presented to it ‘within a reasonable time.’” Mashpee
Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003) (quoting 5
U.S.C. § 555(b)). Accordingly, the APA provides for judicial review of an agency action
“unreasonably delayed.” 5 U.S.C. § 706(a)(1).
“Plaintiffs must first allege that the agency failed to take a discrete agency action
that it is required to take, and, second, that the delay was unreasonable.” Da Costa v.
Immigr. Inv. Program Off., 80 F.4th 330, 340 (D.C. Cir. 2023) (quotations omitted). Here,
there is no dispute from Defendants that they are required to adjudicate Ji’s application.
The only dispute concerns whether they have unreasonably delayed doing so.
“Resolution of a claim of unreasonable delay is ordinarily a complicated and nuanced
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task requiring consideration of the particular facts and circumstances before the court.”
Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at 1100.
To determine whether a delay is unreasonable, courts consider the six factors set
forth in Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70 (D.C.
Cir. 1984). 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.’”
Id. at 80 (citations omitted); Nat. Res. Def. Council, Inc. v. U.S. Food & Drug Admin.,
710 F.3d 71, 84 (2d Cir. 2013), as amended, (Mar. 21, 2013) (noting that TRAC
“set[s] forth [the] test for determining if agency action is unreasonably delayed”).
Ji contends that the TRAC factors—particularly factors three and five—merit
relief in his case. (Am. Compl. ¶ 67; Pl.’s Mem. in Opp’n to Defs.’ Mot to Dismiss dated
June 30, 2025 (“Pl.’s Opp’n”), Dkt. No. 23-3 at 8–9). Defendants contend that TRAC
factors one, three, four, and five favor dismissal of Ji’s APA claim. (Defs.’ Mot. to
Dismiss at 17–22). For completeness, the Court analyzes each of the factors.
The first and the second TRAC factors are often considered together, as “[t]he
second TRAC consideration . . . ‘gives content to the first.’” Afghan & Iraqi Allies v.
Blinken, 103 F.4th 807, 816 (D.C. Cir. 2024) (quoting In re United Mine Workers of Am. Int’l
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Union, 190 F.3d 545, 549 (D.C. Cir. 1999)). Here, the Immigration and Nationality Act
(“INA”) provides timelines for the adjudication of asylum applications. See 8 U.S.C.
§ 1158(d)(5). Under section 1158(d)(5), 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 “final administrative adjudication of the
asylum application, not including administrative appeal, shall be completed within 180
days after the date an application is filed.” Id. § 1158(d)(5)(A)(ii)–(iii). Although these
timelines are not “mandatory”—section 1158(d)(7) provides that there is no private
right of action to enforce them—the deadlines are still considered under the second
TRAC factor. See Afghan & Iraqi Allies, 103 F.4th at 817 (“Even when a statutory timeline
is clearly precatory, like one establishing a ‘sense of Congress’ for when the processing
of visa applications ‘should’ be completed, we have still treated the deadline as a ‘ruler
against which the agency’s progress must be measured.’ . . . It should play an important
role in assessing the reasonableness of the government’s pace of adjudication.” (quoting
Da Costa, 80 F.4th at 344)). Ji’s asylum application has been pending far longer than the
180 days provided for by statute. Indeed, Ji has not even had an initial interview
scheduled, in the nearly four years his application has been pending.
Despite these statutory timelines, USCIS contends that it complies with a rule of
reason in adjudicating asylum applications. (Defs.’ Mot. to Dismiss at 18–19). In
evaluating whether an agency’s conduct complies with a rule of reason for purposes of
the first TRAC factor, courts “evaluate the length of the delay in light of ‘the complexity
of the task at hand, the significance (and permanence) of the outcome, and the resources
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available to the agency.’” Da Costa, 80 F.4th at 340 (quoting Mashpee Wampanoag Tribal
Council, Inc., 336 F.3d at 1102). A four-year delay, while incredibly unfortunate, is not
per se unreasonable—courts have routinely found even longer delays not unreasonable
under TRAC. See, e.g., Chen v. Nielsen, No. 17-CV-7157, 2018 WL 1221130, at *2 (E.D.N.Y.
Mar. 8, 2018) (“[T]he mere delay of roughly four and a half years is an inadequate
ground to grant either mandamus or APA relief.”); Maxhuni v. Mayorkas, No. 23-CV-
9076, 2024 WL 3090165, at *4 (S.D.N.Y. June 20, 2024) (concluding five-year delay in
adjudicating asylum application not unreasonable under TRAC); Hu v. Sessions, No. 18-
CV-2248, 2020 WL 7486681, at *1, *3 (E.D.N.Y. Dec. 17, 2020) (same); Almakalani v.
McAleenan, 527 F. Supp. 3d 205, 225 (E.D.N.Y. 2021) (“[C]ourts in this circuit have
repeatedly found that delays of as long as five years in USCIS’s adjudication of
immigration benefits are not unreasonable.”). But the delay must be evaluated in light
of “the complexity of the task at hand, the significance (and permanence) of the
outcome, and the resources available to the agency.” Da Costa, 80 F.4th at 340 (quoting
Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at 1102).
Defendants contend that the system USCIS currently uses to process asylum
applications—addressing applications through a “last-in first-out” (“LIFO”) system,
scheduling recently filed asylum applications for interviews ahead of older ones, with a
parallel “first-in first-out” (“FIFO”) track under which some asylum officers are
assigned to the oldest applications—is a rule of reason for purposes of the first TRAC
factor. (Defs.’ Mot. to Dismiss at 18–19).
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Defendants’ argument that the LIFO system (and parallel FIFO track) is a rule of
reason consists entirely of citations to district court cases concluding as much. (Defs.’
Mot. to Dismiss at 18–19). But the Second Circuit has not addressed this question, and
therefore no binding authority compels the conclusion that the LIFO system is a rule of
reason, particularly at the motion to dismiss stage.3
Defendants’ argument necessarily rests entirely on facts outside of the Amended
Complaint—Ji’s complaint contains no allegations relating to the LIFO system.
Throughout their motion, Defendants cite to numerous government webpages, reports,
and press releases addressing the adoption of the LIFO system and parallel FIFO track,
the rationales for adopting these systems, and other demands facing the agency that
allegedly constrain resources available to adjudicate asylum applications. (Defs.’ Mot.
to Dismiss at 5–13). To the extent Defendants contend that LIFO is a rule of reason
based on these materials, Defendants do not explain how the Court may take judicial
3 Several courts have noted that the fact-intensive nature of the TRAC inquiry
makes it difficult to resolve at the pleading stage, with some courts declining to apply
the factors on a motion to dismiss. See, e.g., Gonzalez v. Cuccinelli, 985 F.3d 357, 375 (4th
Cir. 2021) (“A claim of unreasonable delay is necessarily fact dependent and thus sits
uncomfortably at the motion to dismiss stage and should not typically be resolved at
that stage.”); Savchuk v. Jaddou, No. 24-CV-3408, 2024 WL 4183468, at *4 (N.D. Cal. Aug.
20, 2024) (“Although the parties have briefed the TRAC factors and disagree whether
there has been an unreasonable delay, the Court finds it inappropriate to conduct the
fact-analysis at this stage.”); Tigranyan v. Garland, No. 24-CV-0741, 2024 WL 3740049, at
*4 (C.D. Cal. July 1, 2024) (“[B]ecause the TRAC factor analysis is necessarily fact-
intensive, it is more appropriately applied after some discovery than at the pleading
stage.”). And at least one court has granted a request for limited discovery to properly
assess the TRAC factors in a case involving USCIS’s adjudication of affirmative asylum
applications. See Munoz-Barba v. Mayorkas, No. 23-CV-3675, 2024 WL 2818850, at *15–
*20 (N.D. Cal. June 3, 2024).
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notice of them. Defendants do not attempt to show that these documents contain “facts
capable of accurate and ready determination by resort to sources whose accuracy
cannot be reasonably questioned.” James, 808 F. App’x at 3 (quotations omitted). And
Defendants similarly ignore the limitations on the Court’s use of judicially noticed
material in evaluating a 12(b)(6) motion to dismiss. While the Court may take judicial
notice of public records and information published on government websites, the Court
“may not rely on the document for the truth of the matters asserted therein.” Id.
Taking judicial notice of the documents on which Defendants rely for their only
permissible purpose—establishing “that the statement was made,” see Ark. Pub. Emps.
Ret. Sys., 28 F.4th at 352—the documents do not provide any evidence the Court can use
to evaluate the complexity of adjudicating asylum applications and the resources
available to USCIS, which the Court must do to determine whether the LIFO system is a
rule of reason. For example, Defendants cite the 2020 Annual Report of the USCIS
Ombudsman, (Defs.’ Mot. to Dismiss at 7–8), available on the Department of Homeland
Security’s website, which states:
Since 	FY 	2012, 	USCIS 	resources, 	along 	with 	those 	of 	other 	DHS
components, have been substantially taxed due to a surge of foreign
nationals attempting to enter the United States at and between ports of
entry who, once apprehended, express a fear of returning to their home
countries, thereby warranting a fear screening.
. . . .
. . . [B]etween FY 2016 to FY 2019, the Asylum Division has needed to
temporarily assign on average 475 asylum officers each year in response to
other program needs within USCIS, including, among other things, the
operational and legal imperative to conduct fear screenings at the border.
All these factors have impacted USCIS’ ability to address its affirmative
asylum backlog.
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Citizenship & Immigr. Servs. Ombudsman, Annual Report 2020 43–45 (June 30, 2020),
https://perma.cc/2LJ7-PGF3. Even if the Court takes judicial notice of the report, the
Court may only rely on it for the fact that the report said that USCIS’s resources were
taxed and the report said that USCIS had to reassign asylum officers to conduct fear
screenings at the border. The fact that the report said something does not make it so.
To assess the “resources available to the agency” under the first TRAC factor, the Court
would need to consider the statements in these materials for their truth, which it cannot
do on a motion to dismiss. Accordingly, based only on the allegations in the Amended
Complaint and the materials of which the Court may take judicial notice (subject to the
limitation that they may not be considered for their truth), the first and second TRAC
factors favor Ji. See, e.g., Barrios Garcia v. U.S. Dep’t of Homeland Sec., 25 F.4th 430, 454
(6th Cir. 2022) (“At the Rule 12(b)(6) stage, we cannot conclude that the U-visa-
application determination and the bona-fide adjudication are ‘extremely complex and
labor-intensive task[s].’” (quoting Mashpee Wampanoag Tribal Council, Inc., 336 F.3d at
1100)); Dumlu v. Edlow, No. 25-CV-0056, 2025 WL 3190886, at *8 (C.D. Cal. Oct. 2, 2025)
(“These facts—for which Defendants cite reports from the USCIS ombudsman and
Department of Homeland Security inspector general, USCIS press releases, and a letter
from USCIS to an elected representative—are not alleged in the FAC or properly subject
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to judicial notice. On the current record, the Court cannot say that USCIS’s system is a
rule of reason justifying the delay in Plaintiff’s case.”).4
The third and fifth TRAC factors, often considered together, require
consideration of “the nature and extent of the interests prejudiced by the delayed
adjudication.” Xu v. Cissna, 434 F. Supp. 3d 43, 53–54 (S.D.N.Y. 2020). The third TRAC
factor provides that “delays that might be reasonable in the sphere of economic
regulation are less tolerable when human health and welfare are at stake.” Telecomms.
Rsch. & Action Ctr., 750 F.2d at 80. Ji contends that his health and welfare are
jeopardized by USCIS’s delay, because there is a “risk of progressive decline” of his
own health in addition to “the consequences of being separated from his immediate
family as he himself becomes elderly.” (Pl.’s Opp’n at 8; Am. Compl. ¶ 67). Ji has been
suffering from colorectal polyps, and as he grows older, Ji will likely require more
extensive medical care and will need access to better medical insurance. (Am. Compl.
¶¶ 49, 52). In addition to his health concerns, Ji also alleges hardship due to separation
from his spouse and his children, one of whom suffers from an intellectual disability.
(Pl.’s Opp’n at 8–9; Am. Compl. ¶ 50). Ji’s circumstances, while incredibly difficult, are
4 Da Costa comes to a different result based on the statements of USCIS in
materials on its website. 80 F.4th at 336, 340–41. This result may have been compelled
by the D.C. Circuit’s different view on the proper use of judicially noticed materials
from government websites, which diverges from that of the Second Circuit. Compare
Cannon v. District of Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013) (taking judicial
notice of the “contents” of a document on a government website), with United States v.
Strock, 982 F.3d 51, 63 (2d Cir. 2020) (“[W]hile the district court could have taken judicial
notice of the GAO report, it should only have do[ne] so in order to determine what
statements it contained . . . not for the truth of the matters asserted therein.” (quotations
omitted)), and James, 808 F. App’x at 3.
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not unique for an asylum applicant—Ji’s health concerns stem primarily from aging,
and family separation is unfortunately common among those seeking asylum. See, e.g.,
Yang v. Houghton, No. 21-CV-5485, 2021 WL 5879033, at *2 (E.D.N.Y. Dec. 13, 2021)
(“There is nothing exceptional in having a lengthy family separation in a case where
parents seek asylee status.”); De Oliveira v. Barr, No. 19-CV-1508, 2020 WL 1941231, at *5
(E.D.N.Y. Apr. 22, 2020) (“The fact that the plaintiffs experience ‘anxiety and emotional
distress’ could just as easily be true for every other noncitizen whose asylum
application has been delayed.”). Accordingly, the third and fifth TRAC factors weigh
only slightly in favor of Ji.5
Under the fourth TRAC factor, the Court “consider[s] the effect of expediting
delayed action on agency activities of a higher or competing priority.” Telecomms. Rsch.
& Action Ctr., 750 F.2d at 80. Relief may be inappropriate where “a judicial order
putting [Plaintiff] at the head of the queue simply moves all others back one space and
5 Defendants contend that the third and fifth TRAC factors support dismissal
because Ji’s alleged harms do not set him apart from other asylum applicants. (Defs.’
Mot. to Dismiss at 20). Ji still raises concerns that implicate human health and welfare
and demonstrates prejudice to his interests from delay. The fact that the harms alleged
by Ji are not unique does not mean they are given no weight.
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produces no net gain.” In re Barr Laboratories, Inc., 930 F.2d 72, 75 (D.C. Cir. 1991).6
With respect to this factor, Defendants rest their argument in part on the declaration of
Nashwati Nirahu, Chief of Staff of the New York Asylum Office, which they have
attached to their motion to dismiss. (Defs.’ Mot. to Dismiss at 17).7 The Court may not
consider the declaration in resolving the motion to dismiss. And without it, Defendants
cannot establish that adjudicating Ji’s application would have the effect of jumping his
application ahead of others in the queue. Accordingly, the fourth TRAC factor is
neutral.
Finally, under the sixth TRAC factor, the Court considers whether there is “any
impropriety lurking behind agency lassitude, although it need not find any in order to
hold that agency action is unreasonably delayed.” Da Costa, 80 F.4th at 345 (quotations
omitted). Ji does not allege any bad faith by Defendants, and the Amended Complaint
6 Defendants contend that “[e]ven if all the other TRAC factors militate in favor
of finding delay undue, it is appropriate to deny relief where the competing priority—
or fourth TRAC factor—would jump an applicant ahead of others and produce no net
gain.” (Defs.’ Mot. to Dismiss at 17 (quotations omitted)). In Afghan & Iraqi Allies v.
Blinken, 103 F.4th 807 (D.C. Cir. 2024), the D.C. Circuit clarified that denial of relief is not
required merely because the fourth TRAC factor favors dismissal. Id. at 819 (“[B]ecause
agencies have only finite resources, any order to step up activity in one program may
harm others. Yet this concern can go only so far—agency resources always are limited,
and we have never suggested that the possibility of their shifting is always enough to
make any TRAC relief inappropriate.”).
7 Defendants also cite a press release from USCIS’s website on the LIFO system,
as well as several district court cases evaluating claims of unreasonable delay in
adjudicating affirmative asylum applications and concluding that the fourth TRAC
factor favors Defendants. (Defs.’ Mot. to Dismiss at 17). But the press release may not
be relied upon for its truth, and the Second Circuit has not addressed this question.
Moreover, these documents provide no indication of where Ji is in the queue, so they
cannot establish that compelling USCIS to adjudicate Ji’s asylum application would
have the effect of jumping his application ahead of others.
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does not indicate any impropriety by Defendants. Accordingly, the sixth TRAC factor is
neutral. See id. at 346 (concluding that the sixth TRAC factor is neutral where plaintiffs
did not “plausibly allege government misconduct”).
On this record, none of the TRAC factors favor Defendants. Factors one, two,
three, and five slightly favor Ji, and factors four and six are neutral. Accordingly,
Defendants’ motion to dismiss is denied with respect to Ji’s APA claim.
II. 	Mandamus Claim
Ji seeks an order compelling Defendants to adjudicate his asylum application
pursuant to the Mandamus Act, 28 U.S.C. § 1361. (Am. Compl. ¶¶ 69–76).
“[M]andamus is an extraordinary remedy, intended to aid only those parties to whom
an official or agency owes ‘a clear nondiscretionary duty.’” Escaler v. U.S. Citizenship &
Immigr. Servs., 582 F.3d 288, 292 (2d Cir. 2009) (quoting Heckler v. Ringer, 466 U.S. 602,
616 (1984)). “Mandamus may be awarded only if the plaintiff proves that (1) there is a
clear right to the relief sought; (2) the Government has a plainly defined and
peremptory duty to perform the act in question; and (3) there is no other adequate
remedy available.” Benzman v. Whitman, 523 F.3d 119, 132–33 (2d Cir. 2008).
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Defendants contend that Ji does not have a clear right to the relief he seeks and
therefore is not entitled to mandamus. (Defs.’ Mot. to Dismiss at 22–23).8 The Court
agrees.
As noted earlier, there is no private right of action to enforce the statutory
timelines for asylum determinations contained in section 1158(d)(5). Section 1158(d)(7)
provides “[n]othing in this subsection 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.” Because section 1158(d)(7)
expressly disclaims a private right of action to enforce the timelines for asylum
determinations, Ji cannot establish a “clear right” to the relief he seeks. See, e.g., Wu v.
Mayorkas, No. 22-CV-4436, 2024 WL 3557695, at *3 (E.D.N.Y. July 24, 2024) (“Because
Section 1158(d)(7) of the INA explicitly disclaims a private right of action, mandamus
relief is unavailable.”); Zheng v. Garland, No. 22-CV-6039, 2024 WL 333090, at *4
(E.D.N.Y. Jan. 29, 2024) (“[B]ecause Section 1158(d) does not create a legally enforceable
right or benefit, mandamus relief is unavailable.”). Accordingly, Ji has failed to, and
8 Defendants seek dismissal of Ji’s mandamus claim under either 12(b)(1) or
12(b)(6). (Defs.’ Mot. to Dismiss at 22 n.8). The Court analyzes Ji’s mandamus claim
under Rule 12(b)(6), joining the courts that have concluded that it is the proper vehicle
for evaluating whether a plaintiff has satisfied the requirements for mandamus relief.
See Mu v. U.S. Citizenship & Immigr. Servs., No. 23-CV-2067, 2023 WL 4687077, at *3
(E.D.N.Y. July 22, 2023) (“Even though the Court has subject matter jurisdiction to
consider Plaintiff’s mandamus claim, her mandamus claim fails on the merits.”);
Zheng v. Garland, No. 22-CV-6039, 2024 WL 333090, at *4 (E.D.N.Y. Jan. 29, 2024)
(collecting cases).
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cannot, state a claim for mandamus relief, and Defendants’ motion to dismiss Ji’s
mandamus claim is granted. Ji’s mandamus claim is dismissed with prejudice.
CONCLUSION
For the reasons explained above, Defendants’ motion to dismiss is granted in
part and denied in part. The Court grants Defendants’ motion to dismiss Ji’s
mandamus claim. This dismissal is with prejudice, as repleading cannot cure the
defects in Ji’s mandamus claim. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
(“The problem with Cuoco’s causes of action is substantive; better pleading will not
cure it. Repleading would thus be futile.”). Defendants’ motion to dismiss Ji’s APA
claim is denied.
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: 	January 22, 2026
Central Islip, New York
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