United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS [Dkt. No.
Gonzalo P. Curiel United States District Judge.
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
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. (Dkt. No. 7.) On
July 12, 2019, Defendants filed a reply to in support of
their motion to dismiss. (Dkt. No. 8.)
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
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.)
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.)
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.)
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.)
Standard A. Federal Rule of Civil Procedure
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,
Federal Rule of Civil Procedure 12(b)(6)
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).
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.
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 ...