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Varol v. Radel

United States District Court, S.D. California

October 22, 2019

TUGCE VAROL, Plaintiff,
v.
DAVID M. RADEL, Los Angeles Asylum Office, Director, U.S. Citizenship and Immigration Services, et al., Defendants.

          ORDER GRANTING MOTION TO DISMISS [Dkt. No. 4]

          Hon. Gonzalo P. Curiel United States District Judge.

         On July 11, 2016, Plaintiff filed a form I-589 with the United States Citizenship and Immigration Services (USCIS) to apply for asylum and withholding of removal. (Dkt. No. 1 at 3.) More than three years later, Plaintiff is still waiting to schedule an asylum interview with USCIS and for ultimate adjudication of her asylum application. (Id.) She reports that the delays have produced great stress and anxiety and has prompted the filing of this action which requires the Court to determine whether it has the jurisdiction to entertain the case and, if so, whether the law provides Plaintiff a cognizable cause of action. While the Court appreciates the difficulties that Plaintiff has experienced in the course of awaiting a hearing, unfortunately, neither immigration law, the Administrative Procedures Act (APA) nor the Constitution provide the sought-after remedy.

         On March 19, 2019, Tugce Varol (“Plaintiff”) filed a complaint for relief in the nature of mandamus to compel David M. Radel, Los Angeles Asylum Office, Director, U.S. Citizenship and Immigration Services; Kirstjen Nielsen, Secretary, U.S. Department of Homeland Security; and William P. Barr, U.S. Attorney General (collectively, “Defendants”) to schedule an interview and adjudicate Plaintiff's asylum application. (Dkt. No. 1.) On June 14, 2019, Defendants filed, in response, a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 4.) Subsequently, Plaintiff filed a late response in opposition to the Government's motion on July 4, 2019.[1] (Dkt. No. 7.) On July 12, 2019, Defendants filed a reply to in support of their motion to dismiss. (Dkt. No. 8.)

         A hearing on motion was held on September 27, 2019. Having reviewed the moving papers and applicable law, considered the arguments of counsel, and for the reasons set forth below, the Court GRANTS Defendants' Motion to Dismiss.

         Background

         On July 23, 2015, Plaintiff, a native and citizen of Turkey, came to the United States as a B-2 visitor. (Dkt. No. 1 at 3.) Department of Homeland Security (“DHS”) authorized Plaintiff to remain in the country for a period of six months. (Id.) On July 11, 2016, she filed a form I-589 with the United States Citizenship and Immigration Services (USCIS) to apply for asylum and withholding of removal. (Id.) On or about September 1, 2016, Plaintiff provided her biometrics to the USCIS per agency direction. (Id.) Plaintiff is still waiting to schedule an asylum interview with the USCIS and for ultimate adjudication of her asylum application. (Id.)

         Plaintiff has made multiple attempts to expedite her asylum interview without success. (Id. at 4.) Plaintiff claims to have exhausted all available administrative remedies and asserts Defendants have failed to act in accordance with their duties under the law. (Id. at 9.) Plaintiff believes Defendants have unreasonably delayed the adjudication of Plaintiff's asylum application. (Id. at 9.)

         Further, Plaintiff alleges that Defendants have been unable or unwilling to adjudicate her application for asylum and that the agency's system for scheduling asylum applications for interviews is “arbitrary and capricious.” (Dkt. No. 1 at ¶¶ 16, 20.) Consequently, Plaintiff seeks relief under the Mandamus Act for violations of the Immigration and Nationality Act (“INA”) and the Administrative Procedures Act (“APA”). (Dkt. No. 1 at 9.) Plaintiff also asserts a Due Process claim. (Dkt. No. 1 at 8.) Ultimately, Plaintiff seeks an order to compel the Defendants to schedule an interview and fully adjudicate Plaintiff's asylum application. (Id. at 9.)

         Defendants have moved to dismiss the complaint on the basis that Plaintiff's complaint lacks subject matter jurisdiction and cannot state a claim for relief. (Dkt. No. 4.)

         Legal Standard A. Federal Rule of Civil Procedure 12(b)(1)

         Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek to dismiss a complaint for lack of subject matter jurisdiction. The federal court is one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 83, 95 (1998). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

         B. Federal Rule of Civil Procedure 12(b)(6)

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); See Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law."). Alternatively, a complaint may be dismissed where it presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not give "detailed factual allegations," a plaintiff must plead sufficient facts that, if true, "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007).

         "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual allegations permit "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In other words, "the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

         In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions, however, need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, a court may consider the facts alleged in the complaint, documents attached to the complaint, documents ...


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