United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS [Doc. No.
Michael M. Anello United States District Judge.
David M. Radel, Kevin K. McAleenan, and William P.
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.
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.
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.
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).
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).
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).
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).
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 ...