Zhang v. Chertoff ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
SHENGLI ZHANG, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1209 (RWR)
)
JANET NAPOLITANO, et al., )
)
Defendants. )
_____________________________)
MEMORANDUM OPINION
Plaintiff Shengli Zhang brings this action against the
Secretary of the Department of Homeland Security (“DHS”), the
Director of the U.S. Citizenship and Immigration Services
(“USCIS”), and the Attorney General, seeking injunctive relief
under the Administrative Procedure Act (“APA”) and the mandamus
statute, 28 U.S.C. § 1361, compelling the USCIS to adjudicate his
new application for asylum and withholding of removal. The
defendants moved to dismiss, and the parties have filed cross-
motions for summary judgment. Because Zhang has not identified a
legally required action that the defendants have failed to take,
the defendants’ motion for summary judgment will be granted, the
plaintiff’s motion for summary judgment will be denied, and the
defendants’ motion to dismiss will be denied as moot.
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BACKGROUND
Zhang, a citizen of the People’s Republic of China, brings
this action seeking injunctive relief under the APA or mandamus
relief compelling the USCIS to adjudicate his I-589 Application
for Asylum and Withholding of Removal filed May 12, 2004. Zhang
filed an application for asylum on February 2, 1998 with the
Boston office of the Immigration and Naturalization Service
(“INS”), as the USCIS was then known. (Am. Compl. ¶ 13.) On
November 7, 2000, an immigration judge denied Zhang’s
application, and Zhang did not timely appeal. After acquiring
additional evidence, Zhang filed a motion to reopen and
reconsider his case. The Board of Immigration Appeals (“BIA”)
denied the motion. Zhang appealed the BIA’s decision to affirm
the immigration judge’s denial of his request for asylum and the
BIA’s denial of his motion to reopen and reconsider to the United
States Court of Appeals for the First Circuit. In Zhang v. INS,
348 F.3d 289 (1st Cir. 2003), the First Circuit denied Zhang’s
appeal of the BIA’s decisions, concluding that it lacked
jurisdiction to review the BIA’s denial of asylum and that the
BIA did not abuse its discretion in denying Zhang’s motion to
reopen and reconsider his case. Id. at 292-93.
On May 12, 2004, Zhang submitted a new application for
asylum and withholding of removal to the USCIS Service Center for
the District of Columbia. (Am. Compl. ¶¶ 22-23.) He alleges
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that his second application is proper under the USCIS’
“administrative procedure permitting a party to submit a new
application for asylum . . . if there exists any changed
circumstances affecting a person’s eligibility for asylum[.]”
(Id. ¶ 21.) Zhang contends that the defendants have failed “to
adjudicate [his] asylum application status in a reasonably timely
fashion” in violation of applicable statute and the USCIS’
administrative procedure found in its “Affirmative Asylum
Procedures Manual,” and he seeks an order directing defendants to
provide him a timely adjudication of his asylum application.
(Id. ¶¶ 24-29, 59-60, 63-65.) The defendants have filed a motion
for summary judgment, alleging that the district court lacks
subject matter jurisdiction over Zhang’s claim, and to the extent
that there is jurisdiction over Zhang’s claim, Zhang is not
entitled the relief he seeks and the defendants are entitled to
judgment as a matter of law. Zhang has filed a motion for
summary judgment, contending that he is entitled to an order
under the APA or a writ of mandamus compelling the defendants to
adjudicate his application because the defendants have failed “to
take certain nondiscretionary procedural steps” within the
required time period. (Pl.’s Mem. in Support of His Mot. for
Summ. J. (“Pl.’s Mem.”) at 4.)
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DISCUSSION
Summary judgment may be granted only where “the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). The relevant inquiry “is the
threshold inquiry of determining whether there is a need for a
trial -- whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). In considering a motion for summary judgment, all
evidence and inferences to be drawn from the underlying facts
must be viewed in the light most favorable to the party opposing
the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
I. SUBJECT MATTER JURISDICTION
Zhang alleges that jurisdiction is proper under 5 U.S.C.
§§ 702 and 706 and 28 U.S.C. § 1361 “as an action of mandamus to
compel a United States employee to perform a duty.” (Am. Compl.
¶ 7.) The defendants contend that this court lacks jurisdiction
over the plaintiffs’ claims because 8 U.S.C. § 1252(g) strips the
district courts of jurisdiction over removal matters and Zhang’s
new asylum application is “an attack on [the] previous removal
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order” to which he is still subject that falls under the coverage
of § 1252(g). (Defs.’ Mem. in Support of Their Mot. for Summ. J.
(“Defs.’ Mem.”) at 3.) Zhang contends that § 1252(g) is
inapplicable to his claim because he is not seeking review of any
removal order or review of an adjudication, but rather seeking
narrow relief compelling the USCIS only to process timely his new
asylum application. (See Pl.’s Reply at 2.)
Section 1252 sets forth the scope of judicial review of
orders of removal. 8 U.S.C. § 1252. Under 8 U.S.C. § 1252(g),
[e]xcept as provided in this section and
notwithstanding any other provision of law (statutory
or nonstatutory), including section 2241 of title 28,
United States Code, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no
court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.
Section 1252 provides that “the sole and exclusive means for
judicial review” of a removal order is with “the court of appeals
for the judicial circuit in which the immigration judge completed
the proceedings” resulting in an order of removal. 8 U.S.C.
§ 1252(a)-(b). The Supreme Court has interpreted the
jurisdictional bar of 8 U.S.C. § 1252(g) to apply narrowly to the
review of the “three discrete actions by the Attorney General”
that are listed in the provision: “[his] ‘decision or action’ to
‘commence proceedings, adjudicate cases, or execute removal
orders.’” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.
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471, 482 (1999). Reno recognized that “[t]here are . . . many
other decisions or actions that may be part of the deportation
process” and reasoned that it was “implausible that the mention
of three discrete events along the road to deportation was a
shorthand way of referring to all claims arising from deportation
proceedings.” Id. The narrow relief sought in this action -- an
order compelling the USCIS, an agency within DHS, see 6 U.S.C.
§ 271, to timely process the plaintiff’s asylum application –-
does not purport to seek review of one of the Attorney General’s
discrete removal-related decisions listed in § 1252(g) that is
clearly within the exclusive jurisdiction of the court of
appeals.
The defendants further contend that, although the USCIS’s
action to be compelled is not expressly listed in § 1252(g), it
is nonetheless within the court of appeals’ exclusive
jurisdiction under the rule established in Telecommunications
Research and Action Center (“TRAC”) v. FCC, 750 F.2d 70 (D.C.
Cir. 1984). In TRAC, the court of appeals held that the court of
appeals’ jurisdiction is exclusive “over claims that affect [its]
future statutory review authority” where “Congress manifested an
intent that the appellate court exercise sole jurisdiction over
the class of claims covered by the statutory grant of review
power.” Id. at 77. Although it is apparent that Zhang’s
ultimate goal is to prevent the Attorney General from executing
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the removal order upheld by the First Circuit, his present claim
seeks only to compel the USCIS to act on his asylum application,
and the defendants provide no authority establishing that a claim
compelling the USCIS’ to adjudicate an asylum application is
within the class of removal-related claims under § 1252(g).
Accordingly, the defendants have not shown that jurisdiction over
Zhang’s claim is barred by § 1252(g).
II. USCIS’ DUTY TO ACT ON ZHANG’S NEW APPLICATION
Zhang alleges that he is entitled to injunctive relief
compelling the defendants to process and adjudicate Zhang’s new
asylum application within a reasonable time period because the
USCIS breached its duty under 8 U.S.C. § 1158(a)(2)(D) and its
published procedures for processing asylum applications to timely
process his application. The defendants contend that Zhang,
having not left the United States after the immigration judge
denied his application for asylum, is still under the immigration
court’s exclusive jurisdiction.1 Because Zhang is still under
the jurisdiction of the immigration court, the defendants allege,
the USCIS has no jurisdiction to adjudicate his new asylum
application because his application should have been filed with
the immigration judge presiding over his case, along with a
1
Zhang does not dispute the defendants’ assertions that he
has not left the United States and therefore is still under the
jurisdiction of the immigration court that denied his previous
asylum application and issued the order of removal against him.
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motion to reopen or reconsider his case. (See Defs.’ Mem. at 7,
12.) By letter dated February 19, 2008, the USCIS informed the
Zhang that it determined that it did not have jurisdiction over
the plaintiff’s new asylum application because the office
determined that Zhang is still under the exclusive jurisdiction
of the Immigration Court. (Defs.’ Notice of Filing, Ex. C,
Letter from Thomas F. McCarthy, Vermont Service Center Counsel to
Scott A. Conwell (Feb. 19, 2008) (“Feb. 19 Letter”) at 1-2.) The
letter further instructed Zhang that he could file a motion to
reopen or reconsider his application with the Executive Office
for Immigration Review (“EOIR”) where the immigration judge who
denied his first application sits. (Id.)
A. APA
Under the APA, a court may “compel agency action unlawfully
withheld or unreasonably delayed.” 5 U.S.C. § 706(1). As
evidenced by the word “unlawfully,” relief under this section is
available only for agency action that is “legally required.”
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004).
Under 8 U.S.C. § 1158(a)(1), “[a]ny alien who is physically
present in the United States . . . , irrespective of such alien’s
status, may apply for asylum in accordance with” § 1158. Under 8
U.S.C. § 1158(a)(2)(C), an alien who has previously filed for and
been denied asylum may not apply for asylum unless the alien’s
application falls within the changed circumstances exception
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found in 8 U.S.C. § 1158(a)(2)(D). Under 8 U.S.C.
§ 1158(a)(2)(D), “[a]n application for asylum of an alien may be
considered, notwithstanding [§ 1158(a)(2)(C)], if the alien
demonstrates to the satisfaction of the Attorney General . . .
the existence of changed circumstances which materially affect
the applicant’s eligibility for asylum.”
The defendants contend that applicants such as Zhang, who
are under the jurisdiction of the immigration court and seek
consideration of a second asylum application under
§ 1158(a)(2)(D) on the basis of changed circumstances, must file
the application with the immigration judge presiding over the
applicant’s case, along with a motion to reopen or reconsider the
applicant’s case. (Defs.’ Mem. at 7, 12; Feb. 19 Letter at 1-2.)
“When a court reviews an agency’s construction of the statute
which it administers, it is confronted with two questions.”
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842 (1985). The first question is “whether Congress has
directly spoken to the precise question at issue.” Id. If it
has, “the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Id. at 842-43.
However, “if the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the
statute.” Id. at 843. When Congress has charged an agency with
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the responsibility to implement a statute, a court “‘must defer
to the agency’s interpretation . . . if it represents a
reasonable accommodation of the conflicting policies that were
committed to the agency’s care by statute.’” Back Country
Horsemen of Am. v. Johanns, 424 F. Supp. 2d 89, 95 (D.D.C. 2006)
(quoting New York v. EPA, 413 F.3d 3, 23 (D.C. Cir. 2005)
(internal quotation marks omitted)); see Chevron, 467 U.S. at
843-44. Further, “judicial deference to the Executive Branch is
especially appropriate in the immigration context where officials
‘exercise especially sensitive political functions that implicate
questions of foreign relations.’” INS v. Aguirre-Aguirre, 526
U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110
(1988)). Zhang offers no authority to suggest the defendants’
interpretation of § 1158(a)(2)(D) is not an appropriate
interpretation of the duty imposed by the statute that takes into
account the related responsibilities of the USCIS to adjudicate
asylum applications and the EOIR to preside over removal
proceedings. Accordingly, the USCIS’ interpretation will be
accorded deference. Because § 1158(a)(2)(D) does not mandate
that the USCIS adjudicate an asylum application filed by an alien
under the jurisdiction of the immigration court, Zhang has not
shown that the defendants failed to take an action required by
§ 1158 and that he is entitled to injunctive relief.
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Zhang also alleges that he is entitled to injunctive relief
compelling the USCIS to adjudicate his new application because
the USCIS has not followed its own published procedures. He
contends that the USCIS’ “Affirmative Asylum Procedures Manual”
binds the agency to take certain steps to process his
application, including mailing to him an Acknowledgment of
Receipt notice, forwarding his file to the appropriate office,
scheduling him for a new interview, and providing a new
adjudication. (Pl.’s Mem. at 6-7.) The defendants contend that
the Manual’s procedures govern only adjudication of applications
within an asylum office and do not apply when an applicant is
under the jurisdiction of the immigration court. (Defs.’ Mem. at
7.)
A court generally “accords substantial deference to an
agency’s interpretations of its own regulations” or procedures.
Nat’l Wildlife Fed. v. Browner, 127 F.3d 1126, 1129 (D.C. Cir.
1997) (citing Auer v. Robbins, 519 U.S. 542, 561 (1997) and
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).
“The agency’s interpretation must be given controlling weight
unless it is plainly erroneous or inconsistent with the
regulations.” Thomas Jefferson Univ., 512 U.S. at 512 (internal
quotation marks omitted).
The USCIS’ Manual sets forth its process for adjudicating an
asylum application, including an application filed by “an
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applicant who was previously denied asylum by an IJ [immigration
judge] or the BIA.” (Pl.’s Reply Ex. “Affirmative Asylum
Procedures Manual” (November 2007) (“2007 Manual”) at 127.) The
parties do not dispute that the USCIS did not follow the listed
steps for processing an application. However, the Manual also
indicates that there are limits to the USCIS’ jurisdiction to
consider new applications. In the section explaining who is
eligible to file an application with the asylum office, the
Manual states that “[a]n asylum office may consider a new
affirmative asylum application from an applicant who was
previously denied asylum by an asylum officer as long as the
applicant remains within the jurisdiction of the Asylum Division
pursuant to 8 C.F.R. § 208.2.”2 (Pl.’s Reply Ex. 2007 Manual at
128.)3 In addition, in the section labeled “Jurisdiction,” the
Manual states that “[i]n most cases in which an applicant is
denied asylum by an IJ or BIA, the Asylum Division does not have
2
An earlier version of the Manual was in effect when Zhang’s
application was filed. Nonetheless, the 2003 version of the
Manual in effect when Zhang’s second asylum application was filed
contained a substantially similar provision limiting the USCIS’
jurisdiction when an applicant is under the jurisdiction of the
immigration court. It stated: “An asylum applicant may apply for
asylum after the issuance of a final denial, or dismissal of a
motion to reopen or reconsider by the asylum office as long as
s/he is not under the jurisdiction of the Immigration Court.”
(Pl.’s Mot. for Summ. J. Ex. “Affirmative Asylum Procedures
Manual (February 2003)” at 7.)
3
Subsection (b) of 8 C.F.R. § 208.2 lists categories of
applicants who fall under the “exclusive jurisdiction” of the
immigration court. See 8 § 208.2(b).
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jurisdiction over a subsequently filed application, because
necessarily a charging document had been served on the applicant
and filed with EOIR.” (Id.) Thus, the language in the Manual
that Zhang contends binds the USCIS to adjudicate his application
expressly limits any duty to adjudicate to circumstances where
the USCIS has jurisdiction over the application. It is
undisputed that the USCIS has informed Zhang that it determined
it lacked jurisdiction over his application because he is still
under the jurisdiction of the immigration court. There is
nothing in the excerpts Zhang presents as relevant that requires
the defendants to take any further action after concluding it
lacks jurisdiction over the application.4 Because Zhang has not
shown that the defendants failed to take an action legally
required of them, he has not shown he is entitled to relief under
the APA.
B. Mandamus
Mandamus relief under 28 U.S.C. § 1361 is similarly
unavailable. “Mandamus is a ‘drastic’ remedy, ‘to be invoked
only in extraordinary circumstances.’” Fornaro v. James, 416
F.3d 63, 69 (D.C. Cir. 2005) (quoting Allied Chem. Corp. v.
Daiflon, Inc., 449 U.S. 33, 34 (1980)). “‘Mandamus is available
only if: (1) the plaintiff has a clear right to relief; (2) the
4
The complaint does not seek review of the USCIS’
determination of its jurisdiction to process the application.
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defendant has a clear duty to act; and (3) there is no other
adequate remedy available to the plaintiff.’” Id. (quoting Power
v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (internal
quotation marks omitted)). “The party seeking mandamus ‘has the
burden of showing that its right to issuance of the writ is clear
and indisputable.’” Power, 292 F.3d at 784 (quoting N. States
Power Co. v. U.S. Dep’t of Energy, 128 F.3d 754, 758 (D.C. Cir.
1997) (internal quotation marks omitted)). For the reasons
discussed above, Zhang has not established that the defendants
have any outstanding duty to act on the asylum application he
filed with USCIS. Accordingly, Zhang has failed to show that he
is entitled to the relief sought by the complaint or that there
is any genuine factual dispute that precludes entry of judgment
for the defendants. Thus, the defendants’ motion for summary
judgment will be granted, the plaintiff’s motion for summary
judgment will be denied, and the defendant’s motion to dismiss
will be denied as moot.
CONCLUSION
Because Zhang has not established that the defendants have
any unfulfilled duty to act after determining the USCIS lacks
jurisdiction over his second asylum application, the defendants’
motion for summary judgment will be granted. The plaintiff’s
motion for summary judgment will be denied, and the defendants’
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motion to dismiss will be denied as moot. A final order
accompanies this Memorandum Opinion.
SIGNED this 30th day of March, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge