HTOO v. MAYORKAS

Background

Arkar Htoo filed an asylum application with United States Citizenship and Immigration Services on July 2, 2021. The application remained pending in the Newark Asylum Office. Htoo sued Alejandro Mayorkas, Ur M. Jaddou, Ted H. Kim, and Merrick B. Garland, seeking faster action on the application. He asserted a claim under the Administrative Procedure Act and sought a writ of mandamus, meaning a court order requiring a government official or agency to perform a legally required duty. Htoo asked the court to require defendants to adjudicate his application or schedule an interview within 30 days.

The government moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction; Rule 12(b)(6) concerns whether a complaint states a legally sufficient claim.

Mandamus claim

The court rejected the government’s request to dismiss the mandamus claim for lack of jurisdiction under Rule 12(b)(1). Instead, relying on its prior analysis in a related case, the court treated whether Htoo satisfied the requirements for mandamus as a claim issue under Rule 12(b)(6).

The court nevertheless dismissed the mandamus claim under Rule 12(b)(6). Htoo relied on the Immigration and Nationality Act’s provision stating that, absent exceptional circumstances, an initial asylum interview or hearing should begin within 45 days after an application is filed. But another provision says that nothing in that subsection creates a substantive or procedural right or benefit legally enforceable against the United States, its agencies, or its officers. The court therefore concluded that Htoo did not have a clear and indisputable right to a 45-day adjudication or interview that could be enforced through mandamus.

Administrative Procedure Act claim

Htoo also argued that defendants had unreasonably delayed adjudicating his asylum application. The court applied the six factors from Telecommunications Research & Action Center v. FCC, commonly called the TRAC factors, which guide courts in evaluating claims that an agency has taken too long to act.

The court found that the first factor, whether the agency’s timing follows a reasonable system, favored the government because United States Citizenship and Immigration Services generally uses a “Last-In-First-Out” system that schedules recently filed asylum cases ahead of older cases. The second factor favored Htoo because Congress specified a 45-day period for commencing an initial interview or hearing. The court said the third and fifth factors, concerning health, welfare, and interests harmed by delay, at most slightly favored Htoo. The fourth factor strongly favored the government because expediting Htoo’s application would move it ahead of other applicants, including some who had waited as long or longer. The sixth factor was neutral because Htoo did not allege bad faith, unfairness, or other improper conduct.

Considering the factors together, the court concluded that Htoo failed to state a claim for unreasonable delay. The court emphasized that the most important factors favored the government, even though the application had been pending for more than 40 months by the time of the decision.

Disposition

Judge Rochon granted the government’s motion to dismiss the Administrative Procedure Act claim under Rule 12(b)(6) and dismissed the mandamus claim under Rule 12(b)(6). The conclusion states that the government’s motion to dismiss was granted. The clerk was directed to terminate the motion and close the case. The opinion does not state whether the dismissals were with prejudice or without prejudice.