Chen v. McAleenan

Background

Baisheng Chen, a citizen of China, alleged that Chinese authorities questioned him about his online pro-democracy activity and Christian faith. He entered the United States in April 2016 with his wife and daughter and filed an asylum application with U.S. Citizenship and Immigration Services (USCIS) in June 2016. The application remained pending, while Chen was permitted to remain in the United States and apply for employment authorization.

Chen alleged that USCIS did not schedule an asylum interview despite his follow-up efforts in September 2019. He claimed that USCIS’s “last-in, first-out” processing system, which addressed newer applications before older ones, unreasonably delayed his application. The original filings named Kevin McAleenan, but the opinion states that Chad Wolf was automatically substituted as Acting Secretary of Homeland Security.

Claims and Motions

Chen sought an order requiring the Secretary of Homeland Security and the Acting Director of USCIS to schedule an asylum interview and adjudicate his application. He asserted claims under the Administrative Procedure Act (APA), the Fifth Amendment’s Due Process Clause, and the Mandamus Act, 28 U.S.C. § 1361. The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or alternatively sought summary judgment.

Mandamus Claim

The court dismissed the Mandamus Act claim for lack of subject-matter jurisdiction. Mandamus is a legal remedy that can require a federal official to perform a duty owed to the plaintiff. The court held that Chen could not show a clear right to have his asylum application processed within the timing provisions of 8 U.S.C. § 1158(d), because § 1158(d)(7) states that those provisions do not create a legally enforceable substantive or procedural right or benefit.

Administrative Procedure Act Claim

The court held that it had jurisdiction over an APA claim based on the separate statutory provisions addressing agency action that is not completed within a reasonable time or is unreasonably delayed. It rejected the defendants’ argument that § 1158(d)(7) barred every APA challenge to delay.

The court nevertheless dismissed the APA claim under Rule 12(b)(6) because Chen had not pleaded enough facts to show unreasonable delay. Applying the six factors commonly used to evaluate agency delay, the court concluded that USCIS’s last-in, first-out system provided a reasoned response to a systemic backlog. The court also found that Chen had not adequately alleged that the delay threatened human health or welfare, and that moving his application ahead of other applicants would negatively affect higher-priority agency activities and other asylum applicants.

Declaratory Judgment and Due Process Claims

The court dismissed any claim under the Declaratory Judgment Act because Chen did not respond to the defendants’ argument seeking dismissal of that claim, and the court treated the claim as abandoned. The court likewise dismissed any intended Due Process Clause claim because Chen did not respond to the defendants’ dismissal argument. The court added that the Due Process claim would fail in any event because § 1158(d)(7) disclaims an enforceable right or benefit and Chen had not adequately alleged a constitutional deprivation.

Disposition

The court granted the defendants’ motion to dismiss. It dismissed the Mandamus Act, APA, declaratory-judgment, and Due Process claims. The opinion also states that the defendants’ motion to dismiss the original complaint was denied as moot. Judge Alison J. Nathan directed the Clerk of Court to enter judgment and close the case.