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Lajin v. Radel

United States District Court, S.D. California

July 26, 2019

ISSAM LAJIN, Plaintiff,
DAVID M. RADEL, et al., Defendants.


          Hon. Michael M. Anello United States District Judge.

         Defendants David M. Radel, Kevin K. McAleenan, and William P. Barr[1](collectively, “Defendants”) move to dismiss Plaintiff Issam Lajin's (“Plaintiff”) Complaint for mandamus relief filed under the U.S. Citizen and Immigration Service statute pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. No. 3-1 (“Mtn.”). Plaintiff filed a response in opposition [Doc. No. 5 (“Oppo.”)], to which Defendants replied [Doc. No. 7 (“Reply”)]. The Court found the matter suitable for determination on the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 6. For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss.

         Background [2]

         Plaintiff Issam Lajin came to the United States from Syria as an F-1 student on June 11, 2013. Compl. ¶ 5. On December 24, 2015, Plaintiff filed an application for asylum and withholding of removal, asserting a fear of returning to Syria due to his religious sect and religious beliefs, political opinion, and membership in a particular social group as a medical doctor. Compl. ¶ 6. Since then, Plaintiff has not received an asylum interview and the U.S. Citizenship and Immigration Services (“USCIS”) has not adjudicated his application. Compl. ¶ 12.

         Based on the foregoing, Plaintiff brings claims against Defendants for violations of the Immigration and Nationality Act (“INA”) and the Administrative Procedure Act (“APA”), and asserts that he is entitled to relief under the Mandamus Act. Compl. ¶ 18. Plaintiff also contends the USCIS policy that prioritizes interviewing applicants with newer filings and working back towards older filings is arbitrary, capricious and inherently unfair, and violates Plaintiff's due process rights. Compl. ¶¶ 10-16.

         Legal Standards

         A. Rule 12(b)(1)

         Pursuant to Rule 12(b)(1), a party may seek dismissal of an action for lack of subject matter jurisdiction “either on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003); see also White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A jurisdictional attack pursuant to Rule 12(b)(1) may be facial or factual. White, 227 F.3d at 1242. “In a facial attack, the challenger asserts that the allegations contained in the complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “If the challenge to jurisdiction is a facial attack . . . the plaintiff is entitled to the safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of the Interior, 905 F.Supp.2d 1158, 1167 (E.D. Cal. 2012) (internal citation and quotation omitted).

         B. Rule 12(b)(6)

         A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . .” Fed.R.Civ.P. 8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Fed.R.Civ.P. 12(b)(6). The plausibility standard thus demands more than a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not take legal conclusions as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

         Where dismissal is appropriate, a court should grant leave to amend unless the plaintiff could not possibly cure the defects in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).


         Defendants move to dismiss Plaintiff's complaint on five grounds: (1) the Court lacks subject matter jurisdiction; (2) Plaintiff fails to state a claim under the APA; (3) Plaintiff fails to state a claim under the Mandamus Act; (4) Plaintiff fails to state a due process claim; and (5) Plaintiff presents a non-justiciable political question. See generally, Mtn. The Court ...

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