LUO v. Lehman

Background

Mingzhu Luo filed a complaint alleging that United States Citizenship and Immigration Services (USCIS) unreasonably delayed adjudicating her Form I-589 application for asylum and withholding of removal. She alleged that USCIS received the application on November 24, 2020, but that it remained pending for more than five years as of November 25, 2025, without an interview. She sought an order requiring USCIS to adjudicate the application under the Mandamus Act, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. §§ 555(b) and 702.

According to facts presented in Luo’s opposition brief, USCIS scheduled an interview, later rescheduled it, and then cancelled it after Luo submitted nearly 700 pages of supporting material. USCIS treated the matter as a failure to appear. Luo requested that USCIS find exceptional circumstances excusing her nonappearance. On May 28, 2026, USCIS issued a Referral Notice for Failure to Appear and referred her application to an immigration judge for adjudication in removal proceedings. The notice stated that the referral was not a denial of her asylum application. USCIS also served Luo with a Notice to Appear, and an initial hearing was scheduled for August 3, 2026.

Motion and Legal Standards

Lehman moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which challenges the court’s subject-matter jurisdiction. Lehman argued that Luo’s claims were moot because USCIS had referred the application to an immigration judge. Lehman also argued that the court lacked jurisdiction under the Administrative Procedure Act because the referral was not a final agency action.

The court took judicial notice of the Referral Notice. A case is moot when the issues are no longer live or the parties no longer have a legally recognized interest in the outcome. The court explained that the party asserting mootness bears a heavy burden of showing that the challenged conduct cannot reasonably be expected to recur.

Court’s Analysis

The court held that the referral fulfilled the relief Luo requested: appropriate action to adjudicate her asylum application without further delay. Under 8 C.F.R. § 208.14, an asylum officer may approve, deny, refer, or dismiss an asylum application. The court concluded that referring the application to an immigration judge was therefore an appropriate adjudicatory action, even though USCIS had not conducted an interview.

The court rejected Luo’s attempt to reframe the complaint as a challenge to the fairness of USCIS’s pre-referral process. The complaint alleged unreasonable delay and requested adjudication, but it did not allege a procedural due-process violation or ask the court to require a fair procedure. The court also stated that referral without an interview could still be an appropriate step under the regulation.

Separately, the court held that the Administrative Procedure Act did not provide jurisdiction to review the referral. The court found that the referral was not a final agency action because the notice stated that USCIS had not denied the asylum application and Luo could present her asylum case to the immigration judge during the pending removal proceedings. The court concluded that those proceedings provided another adequate remedy.

Disposition

The court granted Lehman’s motion to dismiss under Rule 12(b)(1). It dismissed Luo’s complaint without leave to amend because amendment would be futile. The court’s order did not name the judge.