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Almandil v. Radel

United States District Court, S.D. California

July 18, 2016

DAVID M. RADEL, Los Angeles Asylum Office, Acting Director, U.S. Citizenship, et al., Defendants.



         Currently before the Court is Defendants’ motion to dismiss Plaintiff’s Complaint. (ECF No. 3.) Plaintiff did not file an opposition to Defendants’ motion. For the reasons discussed below, Defendants’ motion is GRANTED.


         Plaintiff Hassan Alaa Ibrahim Almandil (“Almandil”) is a native and citizen of Iraq who entered the United States as a B-2 visitor in December 2014. (Compl., ECF No. 1, ¶ 5.) On March 4, 2015, Almandil filed an application for asylum with the Department of Homeland Security, pursuant to Form I-589. (Compl. ¶ 6.) Almandil provided biometrics on March 15, 2015, but has yet to be scheduled for an interview or receive adjudication on his application. (Compl. ¶¶ 7, 9.)

         Almandil filed his Complaint on September 28, 2015, seeking an order of mandamus from this Court directing Defendants to process his application. The Complaint alleges violations of the Administrative Procedures Act, 5 U.S.C. § 701, et seq., for unlawful and unreasonable delay in processing Almandil’s application and for failing to carry out Defendants’ adjudicative and administrative functions. Defendants filed a motion to dismiss on December 1, 2015, arguing that Almandil’s claims fail both under the Administrative Procedures Act and the Mandamus Act.


         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in plaintiff’s complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

         Although detailed factual allegations are not required, factual allegations “must be enough to raise a right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). “A plaintiff’s obligation to prove the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. “[W]here 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 show[n] that the pleader is entitled to relief.” Ashcroft v. Iqbal, 565 U.S. 662, 679 (2009) (internal quotation marks omitted). Only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id.

         Almandil’s Complaint requests “relief in the nature of mandamus.” (Compl. p. 1). Although Almandil never specifically mentions the Mandamus Act, Defendants posit that Almandil seeks relief under both the Mandamus Act and the Administrative Procedures Act.

         A. Mandamus Act

         Pursuant to 28 U.S.C. § 1361, “[t]he 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.” A writ of mandamus “is a ‘drastic and extraordinary’ remedy ‘reserved for really extraordinary cases.’” Cheney v. U.S. Dist. Court, 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)). A party requesting a writ of mandamus must satisfy three conditions: the party must have no other adequate means to attain relief; the party’s right to issuance of the writ must be clear and indisputable; and the issuing court must be satisfied that the writ is appropriate under the circumstances. See In re United States, 791 F.3d 945, 954-55 (9th Cir. 2015).

         Here, Almandil does not have a right to seek mandamus relief. Almandil’s Complaint seeks judicial action to compel compliance with certain asylum procedures. Specifically, 8 U.S.C. § 1158(d)(5) provides in part 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.” 8 U.S.C. § 1158(d)(5)(A)(ii).

         Section 1158(d)(7) states, however, that “[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.” 8 U.S.C. § 1158(d)(7). The Ninth Circuit has held that similar statutory language in other sections of the Immigration and Nationality Act expressly precludes mandamus relief. See Campos v. I.N.S., 62 F.3d 311 (9th Cir. 1995) (holding that identical language precluded mandamus relief under 8 U.S.C. § 1252(i)). The Court sees no reason, and Almandil has not offered any, as to why the language in § 1158(d)(7) should be read differently. See also Alaei v. Holder, No. 15cv8906-ODW, 2016 WL 3024103, at *2 (C.D. ...

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