Qi v. United States Citizenship & Immigration Services

Background

Gao Qi filed a Form I-589 asylum application with United States Citizenship and Immigration Services (USCIS) in 2020 and attended a fingerprinting appointment. His application remained pending, and he had not received an asylum interview. He sued USCIS, USCIS’s Office of the General Counsel, and the United States Attorney for the Eastern District of New York. He sought an order requiring USCIS’s Asylum Office to issue an interview notice.

The complaint described the delay as violating due process and also sought a court order under the Mandamus Act, 28 U.S.C. § 1361. The court understood the delay claim as also arising under the Administrative Procedure Act (APA), which allows a court to require agency action that has been unlawfully withheld or unreasonably delayed. The Government moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The court treated Gao Qi as representing himself and liberally read his filings.

Mandamus claim

The court held that it had jurisdiction to consider the mandamus claim. Gao Qi identified a statutory duty requiring the initial asylum interview or hearing to begin within 45 days after the application was filed, absent exceptional circumstances. The court concluded that this was a nondiscretionary duty, meaning the agency was not free to disregard the deadline at its discretion. The court also concluded that the statutory provision stating that the asylum procedures do not create an enforceable right or benefit did not eliminate the court’s jurisdiction.

The court nevertheless dismissed the mandamus claim under Rule 12(b)(6). Section 1158(d)(7) means that the 45-day deadline cannot be legally enforced by Gao Qi against USCIS, the General Counsel, or the U.S. Attorney. As a result, Gao Qi did not have the clear and indisputable right required for a mandamus order.

Administrative Procedure Act claim

The court evaluated the unreasonable-delay claim using six factors commonly used to assess agency delay. The first factor favored the Government because USCIS generally uses a “Last-In-First-Out” scheduling system, under which recently filed asylum cases are generally scheduled ahead of older cases. The second factor favored Gao Qi because Congress specified a 45-day period for beginning the initial interview or hearing.

The court found that the third and fifth factors—concerning personal hardship and the interests affected by the delay—at most slightly supported Gao Qi. He stated that his livelihood had suffered and that he wanted closure, but he did not allege that he had been unable to work. The fourth factor strongly favored the Government because moving Gao Qi’s application ahead of other applicants would push those applicants further back and would not fix the broader backlog. The sixth factor was neutral because Gao Qi did not allege bad faith or other improper conduct by the agency.

Considering the factors together, the court held that Gao Qi had not stated a claim for unreasonable delay. The court therefore granted the Government’s motion to dismiss the APA claim under Rule 12(b)(6).

Due-process claim and disposition

The court stated that noncitizens are entitled to due process regardless of whether their presence in the United States is lawful. But a due-process claim based on an immigration process must identify a concrete harm fairly caused by that process. The court found that Gao Qi had not alleged facts showing that he was deprived of due process and dismissed that claim.

The court’s conclusion states that the Government’s motion to dismiss is granted. The Clerk was directed to terminate the motion at ECF No. 15 and close the case.