Xu v. Cissna

Background

Fangfang Xu, a citizen of the People’s Republic of China, applied for asylum in the United States in 2015. U.S. Citizenship and Immigration Services received her application on December 29, 2015. More than three years later, when Xu filed this case, the agency’s online system still listed the application as pending. By January 2020, the status had changed to waiting for an interview to be scheduled.

Xu alleged that the defendants—L. Francis Cissna, Kirstjen Nielsen, and Thomas Cioppa—had failed to decide her application within a reasonable time. She sued under the Administrative Procedure Act, the Mandamus Act, the Immigration and Nationality Act, the Declaratory Judgment Act, and the Fifth Amendment. She sought declarations that the delay was unlawful and an order requiring the defendants to act.

The defendants moved to dismiss the entire complaint under Federal Rule of Civil Procedure 12(b)(1), which addresses lack of subject-matter jurisdiction, and Rule 12(b)(6), which addresses failure to state a legally sufficient claim.

Administrative Procedure Act claim

The court held that it had jurisdiction to consider Xu’s Administrative Procedure Act claim based on allegedly unreasonable delay. The court distinguished that claim from a claim based directly on the Immigration and Nationality Act’s 45-day interview and 180-day adjudication timeframes. The asylum statute says that its timing provisions do not create an enforceable right or benefit, but the court concluded that this provision did not eliminate all ability to challenge an exceptionally unreasonable delay under the Administrative Procedure Act.

The court nevertheless granted dismissal of the Administrative Procedure Act claim under Rule 12(b)(6). Applying the factors commonly used to evaluate delayed agency action, the court concluded that Xu had not plausibly alleged an unreasonable delay. The court found that the agency’s “last in, first out” policy was a reasoned response to a growing asylum backlog and that the delay was not caused by either side’s lack of diligence. The court gave limited weight to the statutory timetable because Congress had stated that it did not create an enforceable right to a decision within that period.

The court also found that Xu had not alleged specific prejudice beyond the general disadvantages associated with waiting for an asylum decision. Ordering the agency to process her application first would move other applicants back in line, undermine the agency’s effort to address the backlog, and potentially favor applicants able to hire counsel and bring lawsuits. The court concluded that the approximately three-year delay, while substantial, was within the range that other courts had found not to be unreasonable.

Mandamus claim

The court held that it lacked subject-matter jurisdiction over Xu’s claim under the Mandamus Act. Mandamus is a court order compelling a federal officer or agency to perform a clearly required duty owed to the plaintiff. To obtain it, a plaintiff must show a clear right to relief, a plainly defined duty, and no other adequate remedy.

To the extent Xu sought an order based on unreasonable delay under the Administrative Procedure Act, the court found that the Administrative Procedure Act supplied an alternative remedy and that Xu had not shown an unlawful delay. To the extent she sought enforcement of the Immigration and Nationality Act’s specific timing provisions, the court held that the statute expressly disclaimed an enforceable right to a decision within those timeframes. The court therefore concluded that the defendants did not owe Xu a mandamus-enforceable duty to decide her application within those periods.

Immigration and Nationality Act claim

The court held that it lacked subject-matter jurisdiction over Xu’s standalone claim under the asylum statute. Section 1158(d)(7) does not create a private right of action to enforce the statute’s timing provisions. The court also held that Xu had not identified a waiver of the federal government’s sovereign immunity for this type of claim. The court therefore lacked jurisdiction over the claim for both reasons.

Fifth Amendment claims

The court granted dismissal of Xu’s due-process claim under Rule 12(b)(6). Xu alleged only that the delay violated her due-process rights and did not identify specific prejudice caused by the delay. Her assertion that she was not receiving rights, privileges, and benefits that might follow from an approved asylum application was too speculative. The court also noted that the asylum statute did not create a legally enforceable right to a decision within its stated timeframe.

The court likewise granted dismissal of Xu’s equal-protection claim under Rule 12(b)(6). The complaint did not explain how she had been treated differently or identify the relevant comparison group. Even considering the argument in her opposition brief that the “last in, first out” policy treated earlier applicants differently from newer applicants, the court found a rational basis for the policy: addressing the growing backlog and discouraging frivolous, fraudulent, or otherwise meritless applications filed to obtain work authorization.

Declaratory-judgment claim and disposition

The court held that it lacked subject-matter jurisdiction over Xu’s claim under the Declaratory Judgment Act because that statute does not independently create federal jurisdiction. Once the court rejected or dismissed Xu’s other claims, no independent jurisdictional basis remained for declaratory relief.

The court granted the defendants’ motion to dismiss in full. It directed the Clerk of Court to terminate all pending motions, adjourn all remaining dates, and close the case. The opinion did not decide whether Xu qualified for asylum.