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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 VASILII KULAKOV, No. 2:24-cv-01337-DJC-AC

12 Plaintiff,

13 v. ORDER

14 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., 15 Defendants. 16

17

18 Plaintiff filed this action on the claim that Defendants have unreasonable

19 delayed his application for asylum. Plaintiff seeks to compel Defendants to adjudicate

20 his application via the Administrative Procedure Act (“APA”) and the Mandamus Act.

21 Defendants now move for dismissal or, in the alternative, summary judgment on the

22 basis that Plaintiff lacks a clear right to relief and the delay in question is not 23 unreasonable. 24 As discussed below, the Court finds that there has not been an unreasonable 25 delay in adjudicating Plaintiff’s asylum application and grants Plaintiff’s Motion (Mot. 26 (ECF No. 7)). 27 //// 28 //// 1 BACKGROUND

2 Under the Immigration and Nationality Act, non-citizens who are physically

3 present in the United States may apply for asylum. 8 U.S.C. § 1158(a). Non-citizens

4 seeking asylum affirmatively, as Plaintiff here is, file a Form I-589 with United States

5 Citizenship and Immigration Services (“USCIS”). See 8 C.F.R. § 208.3. Filing the Form

6 I-589 initiates the procedures outlined in 8 U.S.C. § 1158(d). See 8 C.F.R. § 208.3.

7 Section 1158(d)(5)(A) lays out certain guidelines USCIS must following considering

8 asylum applications, including requirements that “the initial interview or hearing on

9 the asylum application shall commence not later than 45 days after the date an

10 application is filed” and that “final administrative adjudication of the asylum

11 application, not including administrative appeal, shall be completed within 180 days

12 after the date an application is filed[.]” 8 U.S.C. § 1158(d)(5)(A)(ii)–(iii). Both deadlines

13 include “exceptional circumstances” exceptions. Id.

14 Plaintiff is a Russian citizen currently residing in the United States with his

15 spouse and their two children.1 (Compl. (ECF No. 1) ¶¶ 6–9.) On December 8, 2021,

16 Plaintiff applied for asylum by filing form I-589 with Defendant USCIS. (Id. ¶ 8) Since

17 filing his application, Plaintiff has not received an asylum interview or any decision on

18 his request for asylum. (Id. ¶¶ 26-27.) Plaintiff currently remains in the United States

19 and has Employment Authorization Documents (“EAD”) permitting him to work.

20 Plaintiff’s EAD technically expired on August 5, 2024, but pursuant to current USCIS

21 rules, Plaintiff was granted an automatic 540-day extension of his EAD. (Pl’s Suppl. Br.

22 at 1–2; Defs.’ Suppl. Br. at 1.) Because of the automatic extension, Plaintiff will have his

23 EAD until at least February 9, 2026, though Plaintiff has requested an official renewal

24 of his EAD authorization which would further extend his EAD for 5 more years. (Id.)

25 Defendants claim that Plaintiff has not requested expedited processing or to be

26 placed on a short notice interview list. (Mot. at 5.)

27 1 Plaintiff’s spouse and their children are not themselves parties to this action, but Plaintiff states that 28 they are “derivatives” of his asylum application. (Compl. ¶ 9.) 1 Defendants’ Motions argues for dismissal under Fed. R. Civ. P. 12(b)(6) or

2 summary judgment under Fed. R. Civ. P. 56 on the basis that Plaintiff has not

3 established that Defendants had a plainly non-discretionary duty to adjudicate

4 Plaintiff’s asylum application within a set timeline, that Plaintiff has adequate

5 alternative remedies, and that the delay in adjudicating Plaintiff’s application is not

6 unreasonable. This motion is fully briefed and, on the Court’s request, the parties

7 have filed supplemental briefing related to Plaintiff’s EAD renewal status. (Mot.;

8 Opp’n (ECF No. 11); Reply (ECF No. 12); Pl.’s Suppl. Br. (ECF No. 15); Defs.’ Suppl. Br.

9 (ECF No. 16).)

10 LEGAL STANDARD

11 I. Dismissal under Federal Rule of Civil Procedure 12(b)(6)

12 A party may move to dismiss a complaint for “failure to state a claim upon which

13 relief can be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the

14 complaint lacks a “cognizable legal theory or sufficient facts to support a cognizable

15 legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.

16 2008). The court assumes all factual allegations are true and construes “them in the

17 light most favorable to the nonmoving party.” Steinle v. City & County of San

18 Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019). However, if the complaint's

19 allegations do not “plausibly give rise to an entitlement to relief” the motion must be

20 granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

21 A complaint need contain only a “short and plain statement of the claim

22 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed

23 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This rule

24 demands more than unadorned accusations; “sufficient factual matter” must make the

25 claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or

26 formulaic recitations of elements do not alone suffice. Id. “A claim has facial

27 plausibility when the plaintiff pleads factual content that allows the court to draw the

28 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 1 II. Summary Judgment under Federal Rule of Civil Procedure 56

2 Summary judgment may be granted when the evidence shows that there is no

3 genuine issue as to any material fact and the moving party is entitled to a judgment as

4 a matter of law. Fed. R. Civ. P. 56(a). The “threshold inquiry” is whether there are any

5 factual issues that could reasonably be resolved in favor of either party, or conversely,

6 whether the facts are so one-sided that one party must prevail as a matter of law.

7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). “Only disputes over facts

8 that might affect the outcome of the suit under the governing law will properly

9 preclude the entry of summary judgment.” Id. at 248.

10 In a summary judgment motion, the moving party must inform the court of the

11 basis for the motion and identify the portion of the record which they believe

12 demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

13 477 U.S. 317, 323 (1986). If the moving party meets its initial burden, the burden then

14 shifts to the opposing party, who must establish that there is a genuine issue of

15 material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585

16 (1986). Summary judgment is mandated where the nonmoving party fails to “set forth

17 specific facts showing that there remains a genuine issue for trial” and evidence

18 “significantly probative as to any [material] fact claimed to be disputed.” Steckl v.

19 Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983) (internal quotation marks omitted). If

20 the evidence presented by the nonmoving party is “merely colorable, . . . or is not

21 sufficiently probative, . . . summary judgment may be granted.” Anderson, 477 U.S. at

22 249–50 (internal citations omitted).

23 DISCUSSION

24 I. Propriety of Summary Judgment Motion

25 Plaintiff contests the propriety of Defendants’ Motion for Summary Judgment,

26 arguing that such a motion should be delayed until discovery can be obtained.

27 (Opp’n at 4–6.) However, Plaintiff has not identified with any specificity what

28 additional facts require further development via discovery. See Fed. R. Civ. Proc. 1 56(d) (a court may deny a motion if the nonmovant shows that they require discovery

2 to justify their opposition). Plaintiff also has not “proffer[ed] sufficient facts to show

3 that [some] evidence sought exists, and that it would prevent summary judgment.”

4 Kapoor v. Blinken, No. 21-cv-01961-BLF, 2022 WL 181217, at *5 (N.D. Cal. Jan. 20,

5 2022) (quoting Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 n.6 (9th Cir.

6 2001)). Plaintiff only suggests that “[he] should be given the opportunity to conduct

7 discovery on the existence of any alleged exceptional circumstances that have kept

8 this agency from taking action after a delay and on the reasonableness of the same.”

9 (Opp’n at 5–6.) This does not warrant the Court ordering that the parties conduct

10 discovery before considering Defendants’ Motion for Summary Judgment.

11 District courts in this circuit routinely decide immigration actions on summary

12 judgment without discovery. See, e.g., Ahmed v. United States Dep't of State, No. 23-

13 CV-02474-SVK, 2024 WL 315705, at *6 (N.D. Cal. Jan. 26, 2024) (denying discovery to

14 develop factual record as to reasonableness of two-year agency delay); Ali v.

15 Ordeman, No. 2:23-cv-02822-CKD, 2024 WL 2274912, at *12–18 (E.D. Cal. May 17,

16 2024) (ruling on reasonableness of 14-month agency delay at dismissal stage). But

17 see Iqbal v. Blinken, No. 2:23-cv-01299-KJM-KJN, 2023 WL 7418353, at *8 (E.D. Cal.

18 Nov. 9, 2023) (declining to apply TRAC factors at dismissal stage). As Plaintiff has not

19 established discovery is necessary or warranted, the Court will rule on Defendants’

20 Motions. With that said, it is ultimately irrelevant whether this matter is considered on

21 motion to dismiss or summary judgment; the result is the same regardless as the

22 Court’s analysis below is appropriate under either motion standard. See infra

23 Discussion III.B (finding that application of the TRAC factors is appropriate at the

24 motion to dismiss stage).

25 II. The Mandamus Act Claim

26 The Mandamus Act permits district courts to “compel an officer or employee of

27 the United States or any agency thereof to perform a duty owed to the plaintiff.” 28

28 U.S.C. § 1361. “Mandamus is an extraordinary remedy and is available to compel a 1 federal official to perform a duty only if: (1) the individual's claim is clear and certain;

2 (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be

3 free from doubt, and (3) no other adequate remedy is available.” Kildare v. Saenz, 325

4 F.3d 1078, 1084 (9th Cir. 2003) (internal citation omitted). Given the relief afforded by

5 the APA and mandamus relief are “in essence the same,” the APA presents an

6 adequate remedy and the Court elects to only analyze Plaintiff’s claim under the APA

7 only as the APA provides an adequate remedy.2 Vaz v. Neal, 33 F.4th 1131, 1135 (9th

8 Cir. 2022) (internal quotation omitted).

9 III. APA Claim

10 Plaintiff seeks an order compelling Defendants to adjudicate his application

11 under 5 U.S.C. § 706(1) of the APA. Section 706(1) allows the Court to “compel

12 agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). To

13 succeed on an APA unreasonable delay claim, a plaintiff must show that: (1) the

14 agency has a non-discretionary duty to act; and (2) the agency has unreasonably

15 delayed in acting on that duty. Norton v. S. Utah Wilderness All., 542 U.S. 55, 62–64

16 (2004). Defendants challenge whether Plaintiff can meet either requirement.

17 A. Defined and Non-Discretionary Duty to Adjudicate Plaintiff’s Application Within a Set Timeline 18 Defendants argue that Plaintiff cannot establish that Defendants have a non- 19 discretionary duty to adjudicate Plaintiff’s application as Sections 1158(d)(5)(A)(ii) and 20 (iii) contain “an ‘exceptional circumstances’ carve-out” and because Section 1158(d)(7) 21 states that no private cause of action shall arise from the time frames set forth in that 22 section. (Mot. at 10–11.) Many courts have agreed that while the exceptional 23 circumstances “carve out” does grant USCIS some limited discretion, Section 1158 as 24 a whole provides a d irective for USCIS to perform a discrete, mandatory action. See 25 Tailawa v. Mayorkas, No. 22-cv-01515-SPG-RAO, 2022 WL 4493725, at *3 (C.D. Cal. 26

27 2 Defendants argue that Plaintiff has adequate alternative remedies on the alternative basis of his ability to request expedited processing or placement on a short notice interview list but addressing these 28 arguments is unnecessary in light of this ruling. 1 Aug. 18, 2022); Dawod v. Garland, No. 23-cv-3211-MWF-MRWx, 2023 WL 8605320, at

2 *4 (C.D. Cal. Aug. 10, 2023); Yan v. Dir. of LA Asylum Off. for USCIS, No 2:22-cv-

3 05846-ODW-MRWx, 2023 WL 4053410, at *3 (C.D. Cal. June 16, 2023); Andrianov v.

4 USCIS, No. 2:23-cv-09315-CAS-Ex, 2024 WL 3277361, at *5 (C.D. Cal. July 1, 2024).

5 Defendants cite two district court cases, one out-of-circuit, for the proposition

6 that due to the presence of “exceptional circumstances,” USCIS does not have a non-

7 discretionary duty to adjudicate Plaintiff’s asylum application: Singh v. Bardini, No. 22-

8 cv-01027-JAM-DB, 2023 WL 4669864 (E.D. Cal. July 20, 2023) and Zhang v. Wolf, No.

9 19-cv-05370-DLI, 2020 WL 5878255, at *5 (E.D.N.Y. Sept. 30, 2020). Neither case is

10 relevant or persuasive in this context. In both instances, the district courts were

11 discussing the existence of exceptional circumstances in the context of the TRAC

12 factors discussed below, not whether USCIS had a duty in the first instance. See

13 Singh, 2023 WL 4669864, at *2 (discussing the existence of exceptional circumstances

14 in the context of the first and second TRAC factors); see also Zhang, 2020 WL

15 5878255, at *5 (same). Unlike either of these cases, Defendants here argue that they

16 did not have non-discretionary duty to adjudicate Plaintiff’s asylum application based

17 on the purported existence of exceptional circumstances.

18 Both Defendants’ “exceptional circumstances” argument and their argument

19 that 8 U.S.C. § 1158(d)(7) bars relief interpret Plaintiff’s Complaint as seeking

20 enforcement of the specific timelines laid out in Section 1158. However, the

21 Complaint is clearly that it is brought based on the unreasonable delay of the

22 adjudication of his asylum application and does not seek to enforce the specific

23 deadlines within Subsections (d)(5)(A)(ii) and (iii). Plaintiff does not even mention the

24 deadlines set under Section 1158(d)(5) within the Complaint. Instead, Plaintiff plainly

25 states that his claim is that “Defendants’ delay in adjudicating Plaintiff’s I-589

26 Application is unreasonable . . . .” (Compl. ¶ 33.) Other courts have appropriately

27 found that Section 1158(d)(7) does not present a bar on similar claims as they are

28 predicated not on the specific deadlines within Section 1158(d)(5), but on the general 1 unreasonableness of the delay. See Andrianov, 2024 WL 3277361, at *5; see also

2 Tailawal, 2022 WL 4493725, at *3.

3 This same logic extends to Defendants’ argument that Plaintiff cannot establish

4 that Defendants owe a duty to adjudicate his application in a reasonable time as

5 exceptional circumstances presently exist. The exceptional circumstances “carve out”

6 is part of the deadlines set by Subsections (d)(5)(A)(ii) and (iii). Plaintiff’s Complaint

7 does not seek to enforce those specific timelines. That exceptional circumstances

8 may presently exist for purposes of the statute is not dispositive of claims based on

9 the general unreasonableness of the delay.

10 Given the above, Defendants have failed to show that Plaintiff does not have a

11 discrete non-discretionary duty to adjudicate Plaintiff’s asylum application within a

12 reasonable period. Even so, USCIS’s limited discretion and the purported presence of

13 exceptional circumstances remain relevant to the TRAC factors.

14 B. The Delay in Reviewing Plaintiff’s Asylum Application is Reasonable

15 “When there is no set deadline by which an agency must act, a court evaluates

16 whether the agency’s delay is unreasonable by applying the six factors established by

17 the D.C. Circuit in Telecommunications Research & Action Center v. FCC [“TRAC”] and

18 adopted by the Ninth Circuit in Independence Mining Co. v. Babbitt[.]” Alaska Indus.

19 Dev. & Exp. Auth. v. Biden, 685 F. Supp. 3d 813, 857 (D. Alaska 2023) (citing 750 F.2d

20 70 (D.C. Cir. 1984); 105 F.3d 502, 507 (9th Cir. 1997)). The TRAC factors are:

21 (1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has 22 provided a timetable or other indication of the speed with

23 which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this 24 rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when 25 human health and welfare are at stake; (4) the court should

26 consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court 27 should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find 28 1 any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed. 2

3 In re Nat. Res. Def. Council, Inc., 956 F.3d 1134, 1138–39 (9th Cir. 2020) (quoting

4 TRAC, 750 F.2d at 79–80).

5 Plaintiff contests that it is inappropriate to apply the TRAC factors at the

6 pleading stage as it is a fact intensive inquiry. This Court adopts the view of other

7 district courts in this circuit which have recognized that application of the TRAC factors

8 can be fact intensive but is appropriate at the motion to dismiss stage “when the

9 plaintiff has not alleged any facts—other than the length of the delay—that undermine

10 USCIS's claim of reasonableness.” Varzaghani v. Mayorkas, No. 23-cv-01876-DMG-

11 KESx, 2024 WL 2952141, at *3 (C.D. Cal. June 5, 2024); see also Ma v. Jaddou, No.

12 2:22-cv-04210-MWF-KS, 2022 WL 17254783, at *4 (C.D. Cal. Sept. 26, 2022).

13 Here, Plaintiff’s claims of unreasonableness are predicated almost exclusively

14 on the time taken in adjudicating his application and Plaintiff has not alleged any other

15 facts that suggest the delay is unreasonable. (See generally Compl.) As a result,

16 analysis of the TRAC factors is appropriate at the motion to dismiss stage. This point is

17 also ultimately moot as it is also appropriate for the Court to consider the TRAC factors

18 on summary judgment. See supra Discussion I.

19 1. First and Second TRAC Factors

20 The Ninth Circuit has stated that of all the TRAC factors, “[t]he most important is

21 the first factor, the ‘rule of reason,’ though it, like the others, is not itself

22 determinative.” In re a Cmty. Voice, 878 F.3d 779, 786 (9th Cir. 2017). The central

23 inquiry of the rule of reason factor is “whether there is any rhyme or reason for the

24 Government’s delay — in other words, whether the agency’s response time . . . is

25 governed by an identifiable rationale.” Poursohi v. Blinken, No. 21-cv-01960-TSH,

26 2021 WL 5331446, at *4 (N.D. Cal. Nov. 16, 2021) (quotation marks and citation

27 omitted).

28 //// 1 USCIS follows what is called the last-in-first-out (“LIFO”) scheduling system for

2 handling asylum applications. Courts have widely found that the LIFO system is a rule

3 of reason. See Teymouri v. USCIS, No. 2:22-cv-07689-PA-JCx, 2022 WL 18717560, at

4 *4 (C.D. Cal. Jan. 31, 2022) (collecting cases); see also Varol v. Radel, 420 F. Supp. 3d

5 1089, 1097 (S.D. Cal. Oct. 22, 2019).

6 Looking at the reasonableness of the facts in this particular case, Plaintiff’s

7 asylum application has been pending since December 2021. This represents a delay

8 of over 31 months at the time of the present motion. While this is a meaningful delay

9 for Plaintiff and one that he undoubtedly feels in an acute way, other courts have held

10 that even longer delays are insufficient to tip the first two TRAC factors in a plaintiff’s

11 favor. See Varzaghani, 2024 WL 2952141, at *4 (finding a two-year delay to be

12 reasonable); see also Denisov v. Mayorkas, No. 23-cv-06442-SI, 2024 WL 352204, at *6

13 (N.D. Cal. July 23, 2024) (finding a delay of “over three years” to be reasonable); Yang,

14 2023 WL 4053410, at *4 (finding a four-year delay to be reasonable); Teymouri, 2022

15 WL 18717560, at *4 (finding a five-year delay to be reasonable); Yavari v. Pompeo,

16 No. 2:19-cv-02524-SVW-JC, 2019 WL 6720995, at *8 (C.D. Cal. Oct. 10, 2019)

17 (“District courts have generally found that immigration delays in excess of five, six,

18 seven years are unreasonable, while those between three to five years are often not

19 unreasonable.”). The delay in the adjudication of Plaintiff’s application is well below

20 both what other courts have considered to be per se unreasonable as well as what

21 may sometimes be unreasonable based on the specific facts. Yavari, 2019 WL

22 6720995, at *8. Even if the delay Plaintiff has suffered fell into the latter category,

23 Plaintiff has not alleged any facts that would elevate the delay to one that is

24 circumstantially unreasonable.

25 As discussed above, courts do acknowledge that Congress has established

26 requirements for adjudicating asylum actions under 8 U.S.C. § 1158(d)(5)(A), but that

27 USCIS maintains limited discretion and that this does not afford plaintiffs a private

28 right of action. See Varol, 420 F. Supp. 3d at 1097; see also Denisov, 2024 WL 1 3522047, at *6. As a result, the effect of the timetable provided by Section

2 1158(d)(5)(A) is limited as it does not outweigh the reasonableness of USCIS’s policies.

3 Defendants also argue that there are presently exceptional circumstances that warrant

4 the application of the exceptions provided by Section 1158(d)(5)(A)(ii) and (iii),

5 “includ[ing] funding shortages, an unprecedented surge in applications, and a

6 backlog exacerbated by the COVID-19 pandemic . . . .” (Mot. at 11.) The Court need

7 not reach this argument however, given the above.

8 Accordingly, the first factor weighs in favor Defendants and the second factor is

9 neutral.3

10 2. Third and Fifth TRAC Factors

11 The third and fifth factors “concern[] whether human health and welfare are at

12 stake and the nature and extent of the interests prejudiced by delay . . . .” Singh, 2023

13 WL 4669864, at *3. Plaintiff claims that the delay in adjudicating his application has

14 caused him emotional hardship as he “constantly worries over the safety of his family if

15 forced to return to Russia” as well as health issues including “depression and constant

16 migraines[.]”4 (Opp’n at 16.)

17 The Court is sympathetic to the effects that this delay has had on Plaintiff. As

18 some other courts have recognized, it is very understandable that the insecurity in

19 Plaintiff and his family’s asylum status has caused Plaintiff significant emotional

20 distress. See Varzaghani, 2024 WL 2952141, at *5. However, Plaintiff and his family

21 are presently able to remain in the United States and Plaintiff is able to work for at

22 least another year, if not longer if Plaintiff’s EAD is renewed. This does not undo the

23 3 District courts disagree as to whether in similar circumstances the second TRAC factor should favor the 24 defendant or be considered neutral. Compare Fan Yang, 2023 WL 4053410, at *4 (“Thus, the Court finds that the first and se cond TRAC factors favor Defendants.”), with Varol, 420 F. Supp. 3d at 1097 25 (“The first factor favors the Defendants and the second factor is neutral.”). Whether the second factor should be considered in Defendant’s favor or neutral does not alter the ultimate result here. 26 4 These underlying facts were included not in the Complaint but in an affidavit attached to Plaintiff’s 27 Opposition. As such, they are also not properly within the scope of the Court’s consideration on motion to dismiss. Given that the Court ultimately rules against Plaintiff, consideration of these 28 allegations presents no prejudice to Defendants. 1 stress of the asylum process for Plaintiff, but courts have appropriately recognized that

2 when an individual can continue to live and work in the United States, the effects of

3 the delay are significantly reduced for purposes of the third and fifth TRAC factors.

4 See Varzaghani, 2024 WL 2952141, at *5; see also Dawod v. Garland, No. 23-cv-3211-

5 MWF-MRWx, 2023 WL 8605320, at *9 (C.D. Cal. Aug. 10, 2023).

6 The Court does pause here express some concern about Plaintiff’s work status.

7 Plaintiff is presently able to live and work in the United States and will be able to do so

8 for some time based on USCIS’s “temporary final rule” which granted Plaintiff an

9 automatic 540–day extension. Still, Plaintiff is already faced with substantial

10 uncertainty regarding his asylum status. That Plaintiff’s EAD has not yet been renewed

11 further compounds the stress of Plaintiff’s position. Defendants state that presently

12 “80% of EAD renewal applications based on pending asylum applications are

13 completed within 12.5 months of submission.” (Opp’n at 2.) This statistic contains the

14 tacit acknowledgment that 20% of EAD renewal applications will not be adjudicated in

15 that time.

16 At this point, the Court still cannot find that the uncertainly as to Plaintiff’s EAD

17 status creates a concern for human health or welfare as it relates to the consideration

18 of his application. Plaintiff will remain able to live and work in the United States for

19 more than a year and possibly much longer. A different set of factual circumstances

20 — particularly where the end of Plaintiff’s EAD status was more rapidly approaching —

21 could present a situation where the third factor weighs strongly in Plaintiff’s favor.

22 Given the above, Plaintiff’s allegations do not rise to the level of creating

23 concern that human health or welfare are at stake in the delay. Additionally, the

24 prejudice Plaintiff suffers from this delay, while highly unfortunate, is the same

25 suffered by many asylum seekers in similar positions. See Singh, 2023 WL 4669864, at

26 *3. Thus, the third and fifth TRAC factors, at best, weigh slightly in Plaintiff’s favor or

27 are neutral.

28 //// 1 3. Fourth TRAC Factor

2 The fourth TRAC factor asks courts to “consider the effect of expediting delayed

3 action on agency activities of a higher or competing priority.” In re Nat. Res. Def.

4 Council, Inc., 956 F.3d at 1138–39. In adjudicating the applications before it, USCIS is

5 faced with applications from numerous individuals who are in desperate need of

6 asylum and may suffer serious harm from having their applications delayed. As a

7 result, courts have repeatedly recognized that the ultimate effect of granting relief to

8 asylum applicants who file suit is that the plaintiff is ordered to the head of the line.

9 See, e.g., Varol, 420 F. Supp. 1098. This often means that even when a plaintiff

10 succeeds in obtaining relief in a suit such as this one, they are only moved ahead of

11 other applicants who may be suffering from similar or worse delays, and suffering

12 similar or worse prejudice from those delays.

13 Granting relief to Plaintiff would further affect USCIS’s activities of a higher or

14 competing priority as it relates to other applicants with pending asylum applications

15 who would face delays if Plaintiff was granted relief. See id. The fourth TRAC factor

16 thus weighs in Defendants’ favor.

17 4. Sixth TRAC Factor

18 The sixth and final TRAC factor is not a factor in the same sense of the others,

19 “but merely a confirmation that agency delay need not be intentional to be

20 unreasonable.” Feng v. Beers, No. 2:13–cv–02396-JAM-DAD, 2014 WL 1028371, at *5

21 (E.D. Cal. Mar. 14, 2014). Plaintiff does not allege that Defendants have acted in bad

22 faith. (See Opp’n at 17 (“Plaintiff does not allege that Defendants’ delay was caused

23 by bad faith per se.”).) As such, this factor is neutral.

24 5. Weighing the TRAC Factors

25 The Court finds that the first and fourth of the TRAC factors weigh in

26 Defendants favor. The sixth and second factors are neutral. The second and fifth

27 factors are neutral or weigh slightly in Plaintiff’s favor.

28 //// 1 In generally, the first factor is considered to be the most important, with 2 | significant weight also afforded to the fourth factor. See Poursohi, 2021 WL 5331446, 3 | at*10. Considering the overall balance, the fact that the first and fourth factor 4 | weighing in Defendants’ favor makes it clear that the ultimate result should be in favor 5 || of Defendants. While the 31-month delay Plaintiff has suffered at the time of issuing 6 | this order is substantial, the weight of authority suggests that such a delay is 7 || reasonable without some additional facts showing the delay is unreasonable beyond 8 || the simple fact of the delay. 9 Given the above, Defendants’ Motion to Dismiss is granted on this ground. As 10 | stated previously, Plaintiff has not shown the existence of any disputed material facts 11 | that would preclude summary judgment. As such, Defendants are also entitled to 12 | summary judgment on Plaintiff's APA claim for unreasonable delay for the same 13 | reasons. 14 CONCLUSION 15 In accordance with the above, it is hereby ORDERED that Defendants’ Motion 16 | for Dismissal and Summary Judgment (ECF No. 7) is GRANTED. The Court finds that 17 | Defendants are entitled to judgment on all three of Plaintiff's claims. The Clerk of 18 | Court is directed to enter judgment in Defendants’ favor. 19 50 IT 1S SO ORDERED. 21 | Dated: _November 15, 2024 “Daniel J CoD tto— Hon. Daniel alabretta 22 UNITED STATES DISTRICT JUDGE 23 24 | DJC1 - kulakov24cv01337.MTD&MSJ 25 26 27 28

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