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A.Z. v. Nielsen

United States District Court, D. Massachusetts

October 23, 2018

A.Z., Plaintiff,
v.
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

          PATTI B. SARIS CHIEF UNITED STATES DISTRICT JUDGE.

         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. Employmen ...


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