United States District Court, S.D. California
ORDER GRANTING DEFENDANTS’ MOTION TO
TED MOSKOWITZ, CHIEF JUDGE
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.
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.)
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.
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).
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.
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.
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).
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).
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.