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January 3, 1992

MANJIT SINGH, et al., Plaintiffs,
DAVID N. ILCHERT, District Director, Immigration and Naturalization Service; and FAYE LOTHRIDGE, Director, Office of Refugees, Asylum and Parole, Defendants.


The opinion of the court was delivered by: D. LOWELL JENSEN

On December 11, 1991, this Court heard defendants' renewed motion to dismiss. Jonathan M. Kaufman appeared for plaintiffs. Alberto E. Gonzalez appeared for defendants. Having considered the papers submitted, the arguments of counsel, the applicable law, and the entire record herein, the Court GRANTS defendants' motion.


 This is an action seeking declaratory and injunctive relief brought against David Ilchert, District Director of the Immigration and Naturalization Service ("INS"), and Faye Lothridge, Director of the Office of Refugees, Asylum and Parole ("ORAP"). *fn1" Plaintiffs are a group of forty-three aliens who, between April 18, 1991, and June 7, 1991, filed applications for temporary employment authorization pursuant to 8 C.F.R. § 274a.12(c)(8) while awaiting final decisions on their applications for asylum. The basic premise of the present action is that the INS has unreasonably and unlawfully delayed in adjudicating plaintiffs' employment applications.

 On April 1, 1991, the INS moved its Asylum Unit from its San Francisco District Office on Sansome Street to a "suboffice" located on Mission Street in San Francisco. Prior to that time, plaintiffs claim that the INS generally adjudicated applications for employment authorization the same day they were received, and usually within a matter of hours. This process is arguably streamlined with respect to asylum applicants because when a request for work authorization is made in conjunction with or while an application for asylum is pending, the alien applicant is entitled to work authorization for the period of pendency so long as the application for asylum is nonfrivolous. Alfaro-Orellana v. Ilchert, 720 F. Supp. 792, 796-98 (N.D. Cal. 1989) (citing 8 C.F.R. § 274a.12(c)(8), (13)). Thus once a determination of "nonfrivolousness" has been made with regard to the asylum application, then the grant of employment authorization becomes effectively automatic.

 After the move in April 1991, however, plaintiffs claim that the INS has been taking up to eight or nine weeks to process and adjudicate applications made by aliens seeking asylum, while aliens seeking other, "non-asylum" immigration benefits continue to have their applications decided almost immediately. Plaintiffs thus contend that defendants are discriminating between classes of aliens, and that defendants have no justification for their tardy actions in that nearly all employment applicants other than those also applying for asylum continue to receive prompt consideration of their employment applications. Plaintiffs allege that the delays are caused, in part, by the INS' failure to promptly pick up its mail and the fact that the San Francisco asylum office is woefully understaffed.

 The Court previously heard plaintiffs' motion for a preliminary injunction and defendants' cross-motion for dismissal. In a June 25, 1991 Order the Court denied the motion for preliminary injunction and deferred ruling on the cross-motion to dismiss. *fn2" Defendants now renew their motion to dismiss. Defendants first argue that the case is moot. Defendants also argue that they are adjudicating the applications within the time period permitted by regulation under 8 C.F.R. § 274a.13(d), and are therefore acting within a reasonable time--not in violation of § 555(b).


 The primary objective of the legal system is to obtain a determination on the merits rather than a dismissal based on pleadings. Accordingly, motions to dismiss for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), are generally viewed with disfavor. The Supreme Court has held that a complaint should not be dismissed unless it appears "beyond doubt" that plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). Thus, the question presented by a motion to dismiss is not whether plaintiff will prevail in the action, but whether plaintiff is entitled to offer evidence in support of his or her claim. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974).

 In answering this question, the Court must assume that plaintiff's allegations are true and must draw all reasonable inferences in plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citation omitted). Even if the face of the pleadings indicates that the chance of recovery is remote, the court must allow plaintiff to develop his or her case at this stage of the proceedings. United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).


 A. Dismissal as Moot.

 It appears that the INS has already adjudicated and approved all of the 43 applications serving as the basis for the present action. Thus the INS claims that plaintiffs' complaint for injunctive and declaratory relief is moot and should be dismissed. Plaintiffs argue first that their asylum applications are still pending and that their current period of employment authorization will expire before the asylum determination is made. Thus they will ...

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