1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7

EASTERN DISTRICT OF CALIFORNIA

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9 BALJINDER SINGH BOPARAI, Case No. 1:24-cv-01254-KES-SKO

10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 THAT DEFENDANTS’ MOTION TO v. DISMISS BE GRANTED 12 (Doc. 9) 13 PAM BONDI, ET AL,1 Objections Due: 21 Days 14 Defendants. _____________________________________/ 15 16 Plaintiff, Balijinder Singh Boparai (“Plaintiff”), proceeding pro se, brings this complaint for 17 a writ of mandamus against: (1) “USCIS Office of the Chief Counsel;” (2) “USCIS, Asylum Office 18 San Francisco;” (3) “[Pam Bondi], United States Attorney General;” and (4) “Phillip A. Talbert” 19 (collectively “Defendants”). (Doc. 1 (“Compl.”) at 3–4). Plaintiff filed this action under the 20 Mandamus Act, 8 U.S.C. § 1361 to compel Defendants to act on his I-589 Application for Asylum 21 (“I-589”) by scheduling his interview with the United States Citizenship and Immigration Services 22 (“USCIS”). Defendants now move for dismissal or, in the alternative, summary judgment on the 23 basis that Plaintiff lacks a clear right to relief and the delay in question is not unreasonable. 24 (See generally Doc. 9 (“Mot.”)). Plaintiff failed to file an opposition. 25 The Court has reviewed the parties’ papers and finds the matter suitable for decision without 26 oral argument. The hearing set for April 16, 2025, will therefore be vacated. 27

28 1 Pam Bondi became the Attorney General on February 5, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil 1 For the reasons set forth below, the undersigned recommends that Defendants’ Motion for 2 Dismissal and Summary Judgment, (Doc. 9), be granted. 3 I. BACKGROUND 4 Under the Immigration and Nationality Act, non-citizens who are physically present in the 5 United States may apply for asylum. 8 U.S.C. § 1158(a). Non-citizens seeking asylum 6 affirmatively, as Plaintiff here is, file a Form I-589 with United States Citizenship and Immigration 7 Services (“USCIS”). See 8 C.F.R. § 208.3. Filing the Form I-589 initiates the procedures outlined 8 in 8 U.S.C. § 1158(d). See 8 C.F.R. § 208.3. Section 1158(d)(5)(A) lays out certain guidelines 9 USCIS must following considering asylum applications, including requirements that “the initial 10 interview or hearing on the asylum application shall commence not later than 45 days after the date 11 an application is filed” and that “final administrative adjudication of the asylum application, not 12 including administrative appeal, shall be completed within 180 days after the date an application is 13 filed[.]” 8 U.S.C. § 1158(d)(5)(A)(ii)–(iii). Both deadlines include “exceptional circumstances” 14 exceptions. Id. 15 Plaintiff is a non-citizen who filed an asylum application with the San Francisco Asylum 16 Office on or about June 25, 2022. (See Compl. at 5; Doc. 9-3 (“Def. SOF”) ¶ 47 (citing Doc. 9-2 17 (“Lehman Decl.”) ¶ 19)). Plaintiff filed his initial Form I-765, Application for Employment 18 Authorization on January 13, 2023, which was approved by USCIS on March 8, 2023. (Def. SOF 19 ¶ 53 (citing Lehman Decl. ¶ 19)). Since the filing of his asylum application, Plaintiff has not made 20 a request to be placed on the short notice interview list, (id. ¶ 49 (citing Lehman Decl. ¶ 16)), 21 requested an expedited adjudication, (id. ¶ 50 (citing Lehman Decl. ¶ 17)), or made a request for 22 advance parole, (id. ¶ 51 (citing Lehman Decl. ¶ 21)). 23 Plaintiff filed this suit on October 16, 2024. (See Compl.). Defendants now move for either 24 dismissal of Plaintiff's claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or summary 25 judgment pursuant to Federal Rule of Civil Procedure 56. (See Mot.). Plaintiff did not file an 26 opposition to this motion. 27 28 1 II. LEGAL STANDARD 2 A. Dismissal Under Federal Rule of Civil Procedure 12(b)(6) 3 A party may move to dismiss a complaint for “failure to state a claim upon which relief 4 can be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks 5 a “cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. 6 Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). The court assumes all factual 7 allegations are true and construes “them in the light most favorable to the nonmoving party.” Steinle 8 v. City & County of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019). However, if the complaint's 9 allegations do not “plausibly give rise to an entitlement to relief” the motion must be granted. 10 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 11 A complaint need contain only a “short and plain statement of the claim showing that the 12 pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell Atl. Corp. 13 v. Twombly, 550 U.S. 544, 555 (2007). This rule demands more than unadorned accusations; 14 “sufficient factual matter” must make the claim at least plausible. Iqbal, 556 U.S. at 678. In the 15 same vein, conclusory or formulaic recitations of elements do not alone suffice. Id. “A claim has 16 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 17 reasonable inference that the defendant is liable for the misconduct alleged.” Id. 18 B. Dismissal Under Federal Rule of Civil Procedure 56 19 Summary judgment may be granted when the evidence shows that there is no genuine 20 issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. 21 R. Civ. P. 56(a). The “threshold inquiry” is whether there are any factual issues that could 22 reasonably be resolved in favor of either party, or conversely, whether the facts are so one-sided that 23 one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 24 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law 25 will properly preclude the entry of summary judgment.” Id. at 248. 26 In a summary judgment motion, the moving party must inform the court of the basis for the 27 motion and identify the portion of the record which they believe demonstrates the absence of a 28 genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving 1 party meets its initial burden, the burden then shifts to the opposing party, who must establish that 2 there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 3 U.S. 574, 585 (1986). Summary judgment is mandated where the nonmoving party fails to “set 4 forth specific facts showing that there remains a genuine issue for trial” and evidence “significantly 5 probative as to any [material] fact claimed to be disputed.” Steckl v. Motorola, Inc., 703 F.2d 392, 6 393 (9th Cir. 1983) (internal quotation marks omitted). If the evidence presented by the nonmoving 7 party is “merely colorable, . . . or is not sufficiently probative, . . . summary judgment may be 8 granted.” Anderson, 477 U.S. at 249–50 (internal citations omitted). 9 III. ANALYSIS 10 The Mandamus Act allows the Court to “compel an officer or employee of the United States 11 or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Such relief is 12 available when: “(1) the individual’s claim is clear and certain; (2) the official’s duty is 13 nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other 14 adequate remedy is available.” Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997). 15 Defendants contend that the Immigration and Nationality Act (“INA”) precludes a private 16 right of action to enforce timing requirements, such that Plaintiff cannot satisfy the first prong of 17 the mandamus test. (Mot. at 10–11). The Court agrees. 18 The INA provides, “in the absence of exceptional circumstances, the initial interview or 19 hearing on the asylum application shall commence not later than 45 days after the date an application 20 is filed.” 8 U.S.C. § 1158(d)(5)(A)(ii). However, under the heading, “[n]o private right of action,” 21 the INA further provides, “[n]othing in this subsection shall be construed to create any substantive 22 or procedural right or benefit that is legally enforceable by any party against the United States or its 23 agencies or officers or any other person.” 8 U.S.C. § 1158(d)(7). This explicit disclaiming of a 24 private right of action forecloses mandamus relief. See Su v. Mayorkas, 698 F. Supp. 3d 1168, 1176 25 (N.D. Cal. 2023); see also Kurt v. Mayorkas, No. 24-cv-02792-SK, 2024 WL 5161950, at *1 (N.D. 26 Cal. Dec. 18, 2024) (“This explicit disclaiming of a private right of action forecloses mandamus 27 relief”); Chen v. Wolf, No. 19-9951 (AJN), 2020 WL 6825681, at *3 (S.D.N.Y. Nov. 20, 2020) 28 (“[W]here, as here, the statute itself specifically provides that the timing provisions do not ‘create 1 any substantive or procedural right or benefit,’ Plaintiff cannot make a showing that he has a right— 2 let alone a clear right—to the requested relief.” (quoting 8 U.S.C. § 1158(d)(7))); Liu v. Wolf, No. 3 19-410 (PGG), 2020 WL 2836426, at *10 (S.D.N.Y. May 30, 2020) (“Because Section 1158(d) 4 does not create a legally enforceable right or benefit, Defendants do not owe Plaintiff a duty to 5 adjudicate her application within the time frames provided in § 1158(d). There is thus no clear right 6 to the relief sought[,] and this Court lacks subject matter jurisdiction over Plaintiff’s claim for 7 mandamus relief.” (citations and quotation marks omitted)); Xu v. Cissna, 434 F. Supp. 3d 43, 56 8 (S.D.N.Y. 2020) (“join[ing] the chorus of other courts across the country in concluding that § 9 1158(d)(7) of the INA bars Plaintiff from claiming any legally enforceable right to have her 10 application adjudicated within the provided timeframes” (citations and quotation marks omitted)). 11 Because the Plaintiff cannot establish entitlement to relief under the first prong of the test 12 for mandamus relief, the undersigned recommends the Defendant’s motion be granted. 13 IV. CONCLUSION 14 For the foregoing reasons, IT IS ORDERED that the hearing on this motion scheduled for 15 April 16, 2025 is VACATED. The undersigned further RECOMMENDS that that Defendants’ 16 Motion for Dismissal and Summary Judgment, (Doc. 9), be GRANTED. 17 These findings and recommendations are submitted to the district judge assigned to this 18 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within twenty-one 19 (21) days of service of this recommendation, any party may file written objections to these findings 20 and recommendation with the Court and serve a copy on all parties. The document should be 21 captioned “Objections to Magistrate Judge's Findings and Recommendation.” The district judge 22 will review the magistrate judge's findings and recommendation pursuant to 28 U.S.C. 23 § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 24 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 25

IT IS SO ORDERED.

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27 Dated: March 14, 2025 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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