A.Z. v. NIELSEN

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

A.Z., )

)

Plaintiff, )

)

)

v. ) Civil Action

) No. 18-10511-PBS

KIRSTJEN M. NIELSON, as Secretary )

of the Department of Homeland )

Security; LEE FRANCIS CISSNA, as )

Director of the U.S. Citizenship )

& Immigration Services; JENNIFER )

B. HIGGINS, as USCIS Associate )

Director of Refugee, Asylum & )

International Operations, )

)

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

October 23, 2018

Saris, C.J.

INTRODUCTION

Plaintiff brings this complaint for a writ of mandamus and

declaratory judgment alleging that agency officials violated the

Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.,

during her asylum interview when she was designated a “no show”

after refusing to answer questions per counsel’s instruction.

Plaintiff seeks a preliminary injunction ordering the Government

not to place her in removal proceedings and to remove the no-

show designation in her asylum application file (Docket No. 10).

She argues she needs this relief to “keep the days counting”

toward her eligibility for employment authorization. The

Government has moved to dismiss pursuant to Fed. R. Civ. P.

12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to

state a claim.

After a hearing, the Court ALLOWS the Government’s motion

to dismiss (Docket No. 20).

LEGAL BACKGROUND

I. Asylum Application Procedures

An alien physically present in the United States may apply

for asylum. 8 U.S.C. § 1158(a)(1). An asylum application must be

filed within one year of an alien’s arrival in the United

States. Id. § 1158(a)(2)(B). Even if an alien misses the one-

year deadline, U.S. Citizenship and Immigration Services

(USCIS), which adjudicates asylum applications, may still

consider the application if the alien demonstrates either

“changed circumstances which materially affect [her] eligibility

for asylum or extraordinary circumstances relating to the delay

in filing an application.” Id. § 1158(a)(2)(D).

Once an asylum seeker has filed an application, an initial

interview must occur within 45 days, barring exceptional

circumstances. Id. § 1158(d)(5)(A)(ii). If an applicant fails to

appear for her interview, USCIS sends her a warning letter

directing her to explain her absence within 45 days. USCIS,

Affirmative Asylum Procedures Manual § III.I (2013) (“AAPM” or

“the Manual”). USCIS does not take any further action on the

application until the 45 days have passed. Id. § III.I(2). USCIS

treats a response within the 45-day period as a request to

reschedule the interview, which it grants if the applicant

demonstrates good cause for her failure to appear. Id.; see also

8 C.F.R. § 208.10 (requiring the applicant to demonstrate

“exceptional circumstances” to excuse her failure to appear). If

the applicant does not respond or provides an insufficient

explanation for her failure to appear, she is “deemed to have

waived his or her right to an interview or adjudication by an

asylum officer.” 8 C.F.R. § 208.14(c). When the applicant

appears inadmissible or deportable, “the asylum officer shall

refer the application to an immigration judge . . . for

adjudication in removal proceedings.” 8 C.F.R. § 208.14(c)(1)

(emphasis added); accord AAPM § III.I(2)(a)(ii). In immigration

court, the applicant may seek dismissal of her removal

proceedings by demonstrating exceptional circumstances for

missing the interview. AAPM § III.I(2)(b)(iii).

Asylum applicants may be represented at the interview by

counsel. 8 U.S.C. § 1158(d)(4). The regulations governing the

procedures for the interview before an asylum officer state:

(b) The asylum officer shall conduct the interview in

a nonadversarial manner and, except at the request of

the applicant, separate and apart from the general

public. The purpose of the interview shall be to

elicit all relevant and useful information bearing on

the applicant’s eligibility for asylum. At the time of

the interview, the applicant must provide complete

information regarding his or her identity, including

name, date and place of birth, and nationality, and

may be required to register this identity. The

applicant may have counsel or a representative

present, may present witnesses, and may submit

affidavits of witnesses and other evidence.

(c) The asylum officer shall have authority to

administer oaths, verify the identity of the applicant

(including through the use of electronic means),

verify the identity of any interpreter, present and

receive evidence, and question the applicant and any

witnesses.

(d) Upon completion of the interview, the applicant or

the applicant’s representative shall have an

opportunity to make a statement or comment on the

evidence presented. The asylum officer may, in his or

her discretion, limit the length of such statement or

comment and may require its submission in

writing . . . .

8 C.F.R. § 208.9. The parties do not point to any provision

in the statute, regulations, or Manual governing the

refusal of an asylum applicant to answer questions during

the interview upon advice of counsel.

II. Employment Authorization

An applicant for asylum is eligible to receive an

employment authorization document (EAD) 180 days after

submitting a complete asylum application, as long as the

application has not yet been denied. 8 C.F.R. § 208.7(a)(1). Any

delay in processing the application that is “requested or caused

by the applicant” stops the 180-day clock and ends her

eligibility for employment authorization. Id. § 208.7(a)(2);

accord AAPM § III.F(3). For example, an applicant who fails to

appear for a scheduled interview before an asylum officer is

ineligible for employment authorization, unless she demonstrates

good cause for her failure to appear within the 45-day period

described above. AAPM § III.I(2)(b). USCIS treats the suspension

of an interview due to failure of the applicant’s attorney to

abide by the rules as the fault of the applicant, thus stopping

the EAD clock. Id. § II.J(5)(e) (abuse of a representative’s

role). The Manual states:

It is the AO’s [Asylum Officer’s] duty to ensure that

the representative follows the rules of the interview

as explained at the outset of the interview, which

includes turning off all cellular phones or beepers.

With concurrence of an SAO [Supervisory Asylum

Officer], an AO [Asylum Officer] may ask a

representative who continuously fails to abide by the

rules after repeated warnings, to leave the interview.

If the attorney is asked to leave, the AO either

continues with the interview or suspends the interview

at the applicant’s request. If the interview is

suspended, the rescheduling of the appointment is at

the fault of the applicant, so the EAD clock stops.

The AO must clearly outline in the interview notes

what occurred during the interview that prompted the

representative’s dismissal from the AO’s office. An AO

must consult with an SAO prior to dismissing an

attorney from an interview.

Id. A stopped EAD clock will resume only if the immigration

court dismisses the applicant’s removal proceedings upon a

showing of exceptional circumstances. AAPM § III.I(2)(b),

III.I(2)(b)(iii).

FACTUAL BACKGROUND

The complaint alleges the following facts, some of which

are disputed.1 Plaintiff filed her Form I-589 Application for

Asylum with USCIS on December 27, 2017. She attended her

interview with her attorney on March 14, 2018. During the

interview, the asylum officer told her that her attorney could

not instruct her on whether to answer questions requesting more

information about her asylum eligibility. The officer then asked

Plaintiff to explain how and when she retained her attorney. She

refused to respond to this question, and the asylum officer

informed her that she would be designated a no show in USCIS’s

computer system. Because of this designation, Plaintiff’s EAD

clock stopped running, preventing her from receiving employment

authorization.

1 In support of its motion to dismiss, the Government has

submitted an affidavit from Rachael Schupp-Star, a Supervisory

Asylum Officer in the Boston Asylum Sub-Office at USCIS,

explaining the Government’s perspective on what occurred during

the interview and disputing much of Plaintiff’s account.

According to Ms. Schupp-Star, Plaintiff was asked why she filed

for asylum more than ten years after her date of entry, and her

attorney refused to allow her to answer. She also contends the

attorney was verbally abusive to the asylum officer. Plaintiff’s

attorney strongly denies these allegations. The Government has

also submitted an affidavit from Meghann Boyle, the Director of

the Boston Asylum Sub-Office at USCIS, that explains the

affirmative asylum and employment authorization application

process.

DISCUSSION

Plaintiff brings this lawsuit to challenge her no-show

designation and request a new interview. The Government has

moved to dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6). In

a multi-pronged attack, the Government argues that (1) Plaintiff

failed to exhaust administrative remedies; (2) if Plaintiff

fails to provide good cause for her request to reschedule her

interview and USCIS refers her case to immigration court, the

Court would lack jurisdiction to review USCIS’s referral

decision; (3) USCIS correctly stopped the EAD clock after

Plaintiff impeded adjudication of her asylum claim; and (4) 8

U.S.C. § 1158(d)(7) deprives Plaintiff of a private right of

action to challenge USCIS’s action in this case.

I. Standard of Review

While some of the relief sought raises jurisdictional

issues (like the request for an order to bar removal), Plaintiff

primarily challenges USCIS’s initial no-show designation

immediately following her interview. This request for relief

under the APA and Mandamus Act and the Government’s arguments

for dismissal are better addressed under Rule 12(b)(6). See

Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st

Cir. 2007) (noting that, in the absence of statutory language

suggesting that Congress intended exhaustion to be a

prerequisite to federal court jurisdiction, “APA’s finality

requirement is not jurisdictional in nature”); Comley v. Town of

Rowley, 296 F. Supp. 3d 327, 331-32, 335-36 (D. Mass. 2017)

(addressing whether the plaintiff has a private right of action

under the Rule 12(b)(6) rubric).

In analyzing whether a complaint states a claim sufficient

to satisfy Rule 12(b)(6), the Court must set aside any

statements that are merely conclusory and examine only the

pleader’s factual allegations. See Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). “When there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief.” Id. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678.

II. 8 U.S.C. § 1158(d)(7)

The Government argues that 8 U.S.C. § 1158(d)(7) is a

statutory bar to Plaintiff’s cause of action. This provision,

titled “No private right of action,” provides that “[n]othing in

this subsection [8 U.S.C. § 1158(d), which governs asylum

procedures] shall be construed to create any substantive or

procedural right or benefit that is legally enforceable by any

party against the United States or its agencies or officers or

any other person.” Some courts have relied on this provision to

dismiss complaints seeking to compel USCIS to adjudicate asylum

applications within 180 days and schedule asylum interviews

within 45 days; both time limits are required by 8 U.S.C.

§ 1158(d)(5). See, e.g., L.M. v. Johnson, 150 F. Supp. 3d 202,

209 (E.D.N.Y. 2015).2 Thus, to the extent Plaintiff is suing to

force USCIS to grant her a new asylum interview or employment

authorization, this statutory provision bars her claim.

Plaintiff backpedals in the relief she seeks by arguing

§ 1158(d)(7) does not apply because she is only seeking to

eliminate a false statement in her records. By its terms,

§ 1158(d)(7) only bars claims seeking to enforce rights within 8

U.S.C. § 1158(d), which sets out certain procedures for

adjudicating asylum applications. The subsection says nothing

about what USCIS should do when an attorney interrupts an asylum

interview or how the agency should designate applicants after

their interview. Thus, this provision does not bar Plaintiff

from challenging USCIS’s decision to designate her a no show

after her interview.

2 One unpublished circuit opinion has come to this

conclusion. See Vang v. Gonzales, 237 F. App’x 24, 31 (6th Cir.

2007). Another has read § 1158(d)(7) to bar an alien’s suit

challenging the adequacy of notice concerning the consequences

of filing a frivolous asylum application, which is required by 8

U.S.C. § 1158(d)(4)(A). See Ivantchouk v. U.S. Attorney Gen.,

417 F. App’x 918, 921-22 (11th Cir. 2011).

III. The Administrative Procedure Act

The Government argues that the no-show designation was

appropriate because Plaintiff’s attorney did not allow her to

answer threshold issues concerning eligibility. Plaintiff argues

that the question asked for irrelevant, privileged information.

The parties dispute whether Plaintiff’s refusal to answer

questions should have stopped the EAD clock.

The Court need not decide the lawfulness of USCIS’s no-show

designation because the APA bars review of this nonfinal agency

action. The APA allows courts to review certain agency action

and set the action aside if it finds it unlawful. See 5 U.S.C.

§ 706. Only “agency action made reviewable by statute and final

agency action for which there is no other adequate remedy in a

court are subject to judicial review.” Id. § 704. Since no

statute specifically permits review of USCIS’s no-show

designation, the Court may only review the designation if it

constitutes final agency action.

To qualify as final, the action “must mark the consummation

of the agency’s decisionmaking process” and either determine

rights or obligations or trigger legal consequences. U.S. Army

Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)

(quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). In

other words, the action must “conclusively determine[] the

rights and obligations of the parties with respect to the

matters at issue.” Berkshire Envtl. Action Team, Inc. v. Tenn.

Gas Pipeline Co., 851 F.3d 105, 111 (1st Cir. 2017) (quoting

Rhode Island v. EPA, 378 F.3d 19, 23 (1st Cir. 2004)). The

possibility of an agency appeal prevents a decision from being

final when the decision automatically triggers further agency

review according to statute or regulation. See Global Tower

Assets, LLC v. Town of Rome, 810 F.3d 77, 86 (1st Cir. 2016).

The initial no-show designation is simply one step of the

lengthy agency review of an affirmative asylum application. As

described above, if USCIS designates an applicant a no show, she

has 45 days to provide good cause for her absence. USCIS does

not make a final decision on an applicant’s failure to appear

until the 45 days have expired. If she provides an excuse that

USCIS accepts, USCIS will schedule a new interview. If USCIS

rejects her excuse or she does not respond, the agency must

refer her for removal proceedings if she appears removable.

Before the immigration judge, the applicant may demonstrate good

cause for her absence. If she can do so, the immigration judge

will dismiss the proceedings and send her case back to USCIS.

The initial no-show designation Plaintiff challenges here is

therefore not the final decision that USCIS makes on her failure

to appear for the interview, and even USCIS’s ultimate decision

automatically triggers another round of review in immigration

court.

Plaintiff answers that the no-show designation governs

USCIS’s determination of eligibility for employment

authorization, thus turning it into final agency action. While

it is true that failure to appear for an asylum interview stops

the applicant’s 180-day EAD clock, if the applicant provides

good cause for her failure to appear within 45 days, USCIS will

restart her clock. If she does not, she still has another

opportunity to restart her clock if she can convince the

immigration judge to dismiss her removal proceedings based on

good cause for refusing to answer the questions. Thus, the

initial no-show designation is not the agency’s final word on an

applicant’s eligibility for employment authorization either.

The parties have not cited any caselaw on whether USCIS’s

no-show designation, if contested, is reviewable as final agency

action. Cf. Diallo v. Ashcroft, 381 F.3d 687, 701 (7th Cir.

2004) (declining to decide whether the appellate court had

jurisdiction to review a due process challenge to USCIS’s

decision to designate the asylum applicant a no show). However,

in other situations, courts have found that USCIS’s decision to

deny an adjustment of status application or terminate asylum are

not reviewable final agency action as long as the alien was

referred to immigration court for removal proceedings. See,

e.g., Jama v. Dep’t of Homeland Sec., 760 F.3d 490, 495-47 (6th

Cir. 2014); Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir.

2011); Cabaccang v. U.S. Citizenship & Immigration Servs., 627

F.3d 1313, 1316-17 (9th Cir. 2010). In such cases, USCIS’s

decision “automatically triggers another stage of decision-

making” in the immigration court, rendering the decision

nonfinal. Qureshi, 663 F.3d at 781. Similarly, the initial no-

show designation Plaintiff challenges here automatically

triggers another round of decisionmaking when USCIS provides 45

days to offer good cause for her failure to appear and then even

another round when USCIS refers the case to immigration court.

That Plaintiff actually did appear for her interview in a

physical sense does not change this analysis because she did not

answer the questions at her interview. Plaintiff characterizes

USCIS’s no-show designation as falsification of government

records. She certainly has a point that the no-show designation

in this instance may be misleading. If an applicant shows up at

a hearing but refuses to answer relevant, non-privileged

questions on the advice of counsel, should she be deemed a no

show? The regulations and Manual do not directly address this

question. USCIS has explained that its computer system has a

limited number of codes to record what occurred at an interview

and that it has chosen to use the no-show designation for any

time the interview cannot proceed due to the fault of the

applicant. While the no-show designation is, on its face, false,

on review, an immigration judge will have the opportunity to

determine whether a more accurate designation, such as “failure

to answer questions without good cause,” helps Plaintiff’s

situation. Regardless of the designation, her eligibility for

employment authorization has not been finally adjudicated

because the asylum office must issue a referral to the

immigration court.3 Plaintiff’s avenue for challenging what she

believes is an incorrect designation should now be in the

immigration court. The APA does not permit this Court to

circumvent this established agency process and review a nonfinal

decision.

IV. Mandamus

The Mandamus Act permits courts “to compel an officer or

employee of the United States or any agency thereof to perform a

duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus is “an

extraordinary writ reserved for special situations” when “the

agency or official [has] acted (or failed to act) in disregard

of a clear legal duty and . . . there [is] no adequate

conventional means for review.” In re City of Fall River, 470

F.3d 30, 32 (1st Cir. 2006). A court must determine whether a

3 According to the Declaration of Meghann Boyle, the Director

of the Boston Asylum Sub-Office at USCIS, after this case was

argued, the agency determined that Plaintiff did not adequately

respond to the 45-day notice to request a new interview. Her EAD

clock is therefore stopped, and she is ineligible for employment

authorization pending her removal proceedings before an

immigration judge.

“conventional means” is adequate. Id. In the absence of a clear

legal duty, mandamus relief is appropriate “only in the most

egregious of cases.” Morgovsky v. Dep’t of Homeland Sec., 517 F.

Supp. 2d 581, 584 (D. Mass. 2007) (finding that mandamus was not

warranted where USCIS took sixteen months to decide an appeal of

a denial of a naturalization application).

In light of the lack of breach of a clear legal duty in

these circumstances, a writ of mandamus is not warranted.

Neither the statute, regulations, nor Manual clearly demonstrate

that USCIS acted improperly in designating Plaintiff a no show

after her interview, during which she allegedly declined to

answer certain questions that were not obviously privileged or

irrelevant. She has also not shown circumstances egregious

enough for a court to award mandamus relief in the absence of a

clear legal duty.

ORDER

Accordingly, the Court ALLOWS Defendants’ motion to dismiss

(Docket No. 20). Plaintiff’s motion for a preliminary injunction

(Docket No. 10) is DENIED. The Court orders that the Declaration

of Meghann Boyle (Docket No. 30) be unsealed.

SO ORDERED.

/s/ PATTI B. SARIS

Patti B. Saris

Chief United States District Judge