بحوشة جديدة
Urban Justice Center
Memorandum
To: IRAP
From: Writ of Mandamus Team, IRAP
Date: May 11, 2009
Re: Jurisdiction, Venue, and Duty Requirements of Potential Mandamus/APA Claim
QUESTIONS PRESENTED
1. What are the requirements for jurisdiction for a writ of mandamus or a claim under the Administrative Procedure Act for a delayed application for refugee status?
2. What are the requirements for venue?
3. Is the government lawfully required to adjudicate an Iraqi’s application for refugee status?
4. What is the standard of judicial review for claims of unreasonable delay in processing Iraqi refugee applications?
BRIEF ANSWERS
1. Subject matter jurisdiction for a writ of mandamus is found in district courts under the Mandamus Act and for the Administrative Procedure Act through federal question jurisdiction. If the claim of a non-discretionary duty is not patently without merit or wholly insubstantial, the court should have jurisdiction to consider the merits of the case.
2. Venue is governed by the general venue statute and in this case is limited to where the defendant resides. There is considerable precedent against construing the venue statute to allow a suit solely because the government has an office in a district.
3. Courts have not considered whether DHS has a duty to adjudicate refugee applications. However, courts have issued writs of mandamus compelling DHS to adjudicate naturalization applications that have been delayed due to security checks. When applied to the Refugee Crisis in Iraq Act, which requires DHS to establish refugee processing mechanisms so that refugees can apply and interview for refugee status, the precedent could suggest that DHS has a duty to adjudicate applications within a reasonable time.
4. A refugee applicant must first demonstrate that DHS owes him a pre-existing legal duty to adjudicate his application, and that the delay in adjudication constitutes constructive finality and ripeness warranting judicial intervention. Although there is no apparent precedent for mandamus in a refugee case, analogous immigration cases suggest that periods of two and four years may constitute unreasonable delay.
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BACKGROUND
In May 2007, Mr. an Iraqi citizen interpreter working for in Iraq, fled to with his family to Amman, Jordan due to a fear of persecution stemming from his association with the United States mission in Iraq. In June 2007, Mr. registered with the UNHCR in Jordan. In August 2007, he was referred to the IOM, the United States government’s overseas processing entity for refugee applications in Jordan. Between August 2007 and February 2008, IOM prepared Mr. Registration for Classification as Refugee (form I-590) on the basis that he had entered Jordan as a refugee in May 2007. USCIS interviewed Mr. in connection with his application on February 3, 2008 in Amman, Jordan. In March 2008, Mr. and his family underwent a medical examination. In April 2008, Mr. received a letter from USCIS stating that their decision regarding his application was deferred pending verification of documents presented in his interview and his security review. In August or September 2008, IOM contacted Mr. and told him to prepare for travel to the United States. However, in October 2008, IOM contacted Mr. and said that he had to undergo another security review. At the request of IOM, Mr. attended a three-day orientation session beginning on October 28, 2008 for refugees being resettled to America. Since that date, Mr. and his attorney have made multiple inquiries about the status of his case. According to Ms. , who responded to an e-mail inquiry on March 19, 2008, the SAO was requested on September 26, 2008, but it has not yet cleared. On March 12, 2008, Mr. and his attorney filed a Case Problem Submission Worksheet (form DHS-7001) with the USCIS Ombusdman’s Office. In an undated letter, received by Mr. attorney on April 8, 2009, the a representative of the USCIS Ombudsman’s Office indicated that Mr. case was delayed pending security reviews by agencies outside of USCIS and DHS.
ANALYSIS
I. Jurisdiction
In the United States, the common law writ of mandamus has been codified at 28 U.S.C. § 1361. This provision explicitly provides the district courts with original subject matter jurisdiction over such writs, stating simply: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” Although some courts have conflated the jurisdictional test for mandamus with an evaluation of the merits,1 subject matter jurisdiction is a separate issue. The test should be whether the petitioner’s “claim is plausible enough to engage the court’s jurisdiction,”2 and courts have applied the test used in the Supreme Court case Bell v. Hood to determine whether the court had jurisdiction.3 The test holds that “where a complaint in federal court is so drawn as to seek recovery
1 See Ahmed v. Department of Homeland Security, 328 F.3d 383, 386 (7th Cir. 2003), for a discussion of the distinction and examples of cases conflating the two. See also, American Immigration Law Foundation, Practice Advisory: Mandamus Actions: Avoiding Dismissal and Proving the Case, Aug. 15, 2005,
http://www.ailf.org/lac/pa/lac_pa_081505.pdf.
2 Ahmed, 328 F.3d at 387.
3 323 U.S. 678, 628-683 (1946); See Ahmed, 328 F.3d at 386-7 (“Unless the claim is so frivolous that it fails the Bell v. Hood test, the district court has jurisdiction under § 1361 to determine whether the prerequisites for mandamus
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directly under the Constitution or laws of the United States, the court must entertain the suit, except: (a) where the alleged claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or (b) where it is wholly insubstantial and frivolous.”4 While the APA does create a cause of action, it does not independently create subject matter jurisdiction.5 The Supreme Court has held that 28 USC § 1331 grants federal question jurisdiction to claims under the APA.6 Courts have applied the same Bell v. Hood standard to APA cases, finding jurisdiction under § 1331 where the claim is not “patently without merit.”7 Additionally, courts have interpreted the APA with rules of statutory construction favoring judicial review: “First, congressional intent to limit federal jurisdiction, generally, must be clear and convincing in order to preclude judicial review. Second, there is a general presumption in favor of judicial review of administrative acts. Lastly, we ordinarily resolve ambiguities in favor of the aliens and find jurisdiction to hear the grievance.”8
In suits attempting to compel the government to adjudicate an application for lawful permanent resident status, the government has invoked 8 U.S.C. § 1252(a)(2)(B) as a statutory bar to jurisdiction. The relevant portion states: “Notwithstanding any other provision of law (statutory or nonstatutory) . . . no court shall have jurisdiction to review . . . (ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . .” Refugee processing falls within the relevant subchapter and grants broad discretion to the Attorney General: “*T+he Attorney General may, in the Attorney General’s discretion and pursuant to such regulations as the Attorney General may prescribe, admit any refugee who is not firmly resettled in any foreign country, is determined to be of special humanitarian concern to the United States, and is admissible (except as otherwise provided under paragraph (3)) as an immigrant under this chapter.”9 However, courts have drawn a distinction between an agency’s discretion to make a decision and a discretionary authority to
relief have been satisfied.”); Coal Operators & Assocs., Inc. v. Babbitt, 291 F.3d 912 (6th Cir.2002); Griffith v. Bell-Whitley Community Action Agency, 614 F.2d 1102, 1105 (6th Cir. 1980).
4 Madler v Artoe, 494 F.2d 323, 325 (1974 7th Cir.)
5 See Califano v. Sanders 430 U.S. 99, 107 (1977).
6 Califano, 430 U.S. at 105; see also Bowen v. Massachusetts, 487 U.S. 879, 891 n.16 (1988) (“*I+t is common ground that if review is proper under the APA, the District Court has jurisdiction under 28 USC § 1331”).
7 See Kim v. Ashcroft, 340 F.Supp.2d 384, 388 (S.D.N.Y. 2004).
8 Iddir v. INS, 301 F.3d 492, 496-97 (7th Cir. 2002) (citations omitted). See also, Sharkey v. Quarantillo, 541 F.3d 75, 84, (2nd Cir. 2008) (“In determining whether a suit can be brought under the APA, ‘*w+e begin with the strong presumption that Congress intends judicial review of administrative action.’) (quoting Bowen v. Mich. Academy of Family Physicians, 476 U.S. 667, 670 (1986))
9 INA § 207(c) (codified at 8 U.S.C. § 1157(c)). In Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, The 11th Circuit held that decisions as to whether or not to admit refugees outside the United States are not subject to judicial review. Id. at 1505 (“Contrary to the extensive procedures provided for with regard to aliens within the United States, 8 U.S.C. § 1157, which applies to refugees seeking admission from outside the United States, makes no provision for judicial review. Section 1157, as amended, gives the Attorney General discretion, within numerical limits, to permit refugees who are overseas to immigrate to the United States. No judicial review is provided for. The extensive procedures set out in section 1252(b) and the procedures for judicial review provided for pursuant to section 1105a, along with the absence of procedures for judicial review provided in section 1157, demonstrate a Congressional intent to preclude judicial review at the behest of aliens beyond the borders of the United States.)
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withhold or otherwise delay adjudication.10 Absent a specific statutory grant of discretion in regards to timing, courts have held that the reasonableness of the delay may come under judicial review.11 Moreover, courts have held that the inaction or delay does not constitute a “decision or action” on an immigration matter, thereby falling outside of Section 1252(a)(2)(B).12 Additionally, at least one court has read Section 1252 as applying solely to orders of removal.13
Jurisdiction in mandamus cases for decisions made overseas has also been challenged based on the doctrine of consular non-reviewability.14 Because a refugee applies to the consulate and a consular official will have a role in the decision on whether to grant refugee status, it could be argued that the doctrine applies in this case. The doctrine of consular non-reviewability is “well-settled in established principles of national sovereignty… *w+ere the rule to be otherwise, federal courts would be inundated with claims of disappointed and disgruntled off-shore aliens seeking review of consular officers' denials of their requests....”15 However, in the context of visas, which consulates issue, courts have drawn a distinction between delays in issuing visas and an appeal of a substantive decision.16 As the court in Patel v. Reno writes, “Normally a consular official's discretionary decision to grant or deny a visa petition is not subject to judicial review. However, when the suit challenges the authority of the consul to take or fail to take an action as opposed to a decision taken within the consul's discretion, jurisdiction exists.”17
In sum, determining jurisdiction for a writ of mandamus or claim of unreasonable delay under the APA in this case closely parallels the initial argument on the merits over whether DHS has a statutory duty to adjudicate an application or whether it is purely discretionary. As discussed below, there is evidence that supports finding a duty and the complaint should pass the standard of not being “wholly insubstantial or frivolous” or “patently without merit.”
II. Venue
Venue for writs of mandamus is not addressed separately from other civil actions, but instead falls under the general district court venue provisions of 28 U.S.C. § 1391. This section states:
10 See, e.g., Zhou v. FBI, 2008 WL 2413896 at *3 (D.N.H.) (“Nothing in the INA explicitly commits the pace of adjudication to the discretion of the Secretary or explicitly gives the Secretary discretion to withhold adjudication. Accordingly, the pace of adjudication is outside the reach of the jurisdictional bar.”); Duam v. Zamberry, 2007 WL 626116 at *2 (W.D.Pa.) (“Although the speed of processing may be “discretionary” in the sense that it is determined by choice, and that it rests on various decisions that Defendants may be entitled to make, it is not discretionary in the manner required by the jurisdiction-stripping language of *8 U.S.C. § 1252(a)(2)(B)+.”)
11See, e.g., Zhou 2008 WL 2413896 at *3, Duam v. Zamberry, 2007 WL 626116 at *2.
12See, e.g., Elhaouat v. Mueller, 2007 WL 2332488 at *2 (E.D.Pa.) (“In other words, an agency hasn't taken a discretionary action (or made a discretionary decision) by not acting.”)
13 See Debba v. Heinauer, 2009 WL 146039 (D.Neb.) (“Because § 1252 concerns orders of removal, this Court does not interpret § 1252(a)(2)(B)(ii) as limiting judicial review of any of the Attorney General's duties under the INA except those involving orders of removal. Dr. Debba's case does not involve an order of removal, but a delay in the review of his application for adjustment of status.”)
14 See e.g. Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1998); Raduga USA Corp. v. U.S. Department of State, 440 F.Supp.2d 1140, 1147-48 (S.D. Cal 2006); Doan v. INS, 990 F.Supp. 744, 746-47 (E.D. Mo. 1997).
15 Doan 990 F.Supp. at 1147 (quoting Romero v. Consulate of United States, Barranquilla, Colombia, 860 F.Supp. 319 (E.D.Va.1994)).
16 See Patel 134 F.3d at 932-33; Raduga 440 F.Supp.2d at 1149.
17 Patel 134 F.3d at 931-32.
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A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action.18
Such actions may also be joined with other actions per the Federal Rules of Civil Procedure as if the United States were not a party. Because the plaintiff resides outside the United States, no property is at issue, and there is no available evidence pointing to events taking place in the United States, the case will have to rely on the defendant’s residence to provide proper venue. DHS and USCIS have their headquarters in the District of Columbia, so venue is proper there. However, DHS and USCIS have offices throughout the country, including in Connecticut, leaving open a possibility of joining the local office and suing within the 2nd Circuit. Whether venue is proper depends on how the court interprets the residence requirement. There seems to be support for a broad understanding of the residence requirement in the Supreme Court case, Stafford v Briggs, where the Court wrote: “An officer of the Government while so employed may have numerous mandamus-type suits naming him or her as a party. Without doubt, under § 1391(e), venue lies in every one of the 95 federal districts, and suits may be pending in a dozen or several dozen at any one time. Even though the burden of defending multiple suits while in office may be onerous, the United States Attorney in each of the districts and the Department of Justice carry that burden.”19 However, neither the Supreme Court nor lower courts have held that the presence of a government office suffices to provide residency under the statute. Although the Court of Appeals for the 2nd Circuit has not ruled on the issue, several cases in district courts within the 2nd Circuit have held against a broad understanding of government residence.20 The court in Hartke stated, “The venue statute was not intended to permit forum-shopping, by suing a federal official wherever he could be found, or permitting test cases far from the site of the actual controversy. The statutory reference to the district in which a defendant “resides” may not reasonably be construed to include every district where some subordinate has an office.”21 Courts in other circuits have also ruled that the venue statute should not be construed to permit a government agency to be sued wherever it has offices.22 The American Law Reports entry on the construction and application of 28 U.S.C.A. §
18 28 U.S.C. 1191(e) (2006).
19 444 U.S. 527, 544 (1980).
20 See, e.g., Caremark Therapeutic Services v. Leavitt, 405 F.Supp.2d 454, 463 (S.D.N.Y. 2005) (“A federal agency does not reside in a district merely by virtue of having an office in that district.”) Davies v. Defense Logistics Agency, 825 F.Supp. 105 (E.D. Pa. 1993) (“I find no reason to contort the statutory language of 28 U.S.C. § 1391(e) to require that a federal agency be deemed to reside in a judicial district with which it has no other contact other than the fact that a regional office operates there.”); Hartke v. FAA, 369 F.Supp. 741 (E.D.N.Y. 1973).
21 Hartke 369 F.Supp. at 746.
22 See Superior Oil Co. v. Andrus, 656 F.2d 33 (3rd Cir. 1981) (“We believe there is a fundamental distinction between the terms ‘resides’ and ‘may be found’”); Reuben H. Donnelley Corp. v. FTC, 580 F.2d 264, 267 (7th Cir.
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1391(e) cites only to the Hartke case as evidence that government agencies must be sued where they are headquartered unless the case qualifies under one of the other venue prongs.23 Therefore, while there is no explicit bar to claiming venue for this case in the 2nd Circuit under the general venue statute, there is scant support in case law to use against a motion to transfer venue. The benefits of bringing in the claim in the 2nd Circuit must be weighed against the possible costs and the likelihood of transfer.
III. Duty
As noted above, a writ of mandamus will only issue if the agency is found to have a “duty owed to the plaintiff.”24 The relevant section of the APA states: “The reviewing court shall—(1) compel agency action unlawfully withheld or unreasonably delayed.”25 Although the use of “or” implies that any action unreasonably delayed may be compelled, in Norton v. Southern Utah Wilderness Alliance, the Supreme Court wrote, “*T+he only agency action that can be compelled under the APA is action legally required. This limitation appears in § 706(1)'s authorization for courts to “compel agency action unlawfully withheld.”26 In a footnote, the Court continued, “Of course § 706(1) also authorizes courts to ‘compel agency action ... unreasonably delayed’-but a delay cannot be unreasonable with respect to action that is not required.”27 Therefore, in order to succeed under the APA or have a writ of mandamus issue DHS must be found to have a statutory duty to adjudicate a refugee’s application within a reasonable time. The test for determining a whether a writ of mandamus should be issued is conceptually similar to the test for APA relief so courts do not perform a separate analysis for each.28 The INA’s broad grant of discretion to the Attorney General, “*T+he Attorney General may, in the Attorney General's discretion and pursuant to such regulations as the Attorney General may prescribe, admit any refugee….,” makes it virtually impossible to locate a mandatory duty. 29 However, the Refugee Crisis in Iraq Act uses more direct, compulsory language: “The Secretary of State, in consultation with the Secretary of Homeland Security, shall establish or use existing refugee processing mechanisms in Iraq and in countries, where appropriate, in the region in which (1) aliens described in section 1243 [of this note] may apply and
1978) (“To hold that a federal agency can be sued Eo nomine wherever it maintains an office would, as a practical matter, render subsections (2), (3), and (4) superfluous.”) Kings County Economic Community Development Association v. Hardin, 333 F.Supp. 1302, 1303-04 (N.D. Cal. 1971) (“The wording of § 1391(e) would indicate that the government is now deemed to be ubiquitous . . . all that really need be done to sue in any district in the United States is to name as “a defendant” a subordinate departmental official residing there . . . .This Court is unwilling to so interpret § 1391(e). Venue . . . is in nearly all areas of the law limited to districts which have some contact with the parties or subject matter involved in the action.”).
23 Jean F. Rydstrom, Construction and Application of 28 U.S.C.A. § 1391(e) Providing for Venue and Process in Civil Actions Against Federal Officers, Employees, or Agencies, 9 A.L.R. Fed. 719 (originally published in 1971, updated weekly).
24 28 U.S.C. § 1361.
25 5 U.S.C. § 706
26 542 U.S. 55, 63 (2004).
27 Id. at n.1.
28 See, e.g., Burni v. Frazier, 545 F.Supp.2d 894, 903 (D. Minn. 2008) (“As a preliminary matter, this Court finds, as have other courts, that analysis of jurisdiction and relief under the Mandamus Act and APA is coextensive, and that there is no need to perform a separate analysis under the two acts”); Aslam v. Mukasey, 531 F.Supp.2d 736, 742 (E.D. Va. 2008) (“*A+ suit to compel agency action under the APA is conceptually similar to a petition for mandamus based on agency delay.”).
29 8 U.S.C. § 1157(c).
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interview for admission to the United States as refugees.”30 Section 1243 indicates that “Iraqis who establish to the satisfaction of the Secretary of State that they are or were employed in Iraq by … (B) an organization or entity closely associated with the United States mission in Iraq that has received United States Government funding through an official and documented contract, award, grant, or cooperative agreement” are among the intended beneficiaries of the statute.31 Unlike the original INA, which provided only that the Attorney General may allow refugees to enter, the Refugee Crisis in Iraq Act requires DHS to ensure that specific Iraqis can apply and interview for refugee status. To allow for DHS to withhold a decision indefinitely runs counter to the statute’s purpose to alleviate the refugee crisis and aid specific subsets of Iraqis like those who were affiliated with the U.S. mission. Based on the above, a duty to adjudicate an application is best located in the Iraqi Refugee Crisis Act. The existing refugee applicant processing regulations are as follows:
(a) Forms. Each applicant who seeks admission as a refugee shall submit an individual Form I-590 (Registration for Classification as Refugee). Additionally, each applicant 14 years old or older must submit completed forms G-325C (Biographical Information) and FD-258 (Applicant Card).
(b) Hearing. Each applicant 14 years old or older shall appear in person before an immigration officer for inquiry under oath to determine his/her eligibility for admission as a refugee.
(c) Medical examination. Each applicant shall submit to a medical examination as required by sections 221(d) and 234 of the Act.
(d) Sponsorship. Each applicant must be sponsored by a responsible person or organization. Transportation for the applicant from his/her present abode to the place of resettlement in the United States must be guaranteed by the sponsor.32
Although the statutes and regulations do not explicitly state that DHS must adjudicate an application or provide a time frame for adjudication, an Executive Branch agency, in the absence of a particular time frame, courts have held agencies to the APA’s standard of reasonableness.33 The APA
30 Pub.L. 110-181, § 1242 (emphasis added).
31 Pub.L. 110-181, § 1243.
32 8 C.F.R. § 207.2. The other regulations cover eligibility, waivers of inadmissibility, approved applications, waiting lists and priority handling, control over refugee numbers, derivatives of refugees, physical presence in the United States, and termination of refugee status. See 8 C.F.R. §§ 207.1 – 207.9.
33 See, e.g., Aslam. 531 F.Supp.2d at 743 (“The INA mandates no particular time frame in which the Secretary must complete his review of adjustment of status application. Nevertheless, as an agency of the Executive Branch, the Department of Homeland Security is subject to the catchall time requirement of the APA.”). But see Burni 545 F.Supp.2d at 903-04. Although the court decides to “*join+ a growing number of district courts in concluding that the USCIS has a duty to adjudicate adjustment of status applications once they have been submitted and that the APA requires the applications to be adjudicated in a reasonable time,” they acknowledge that “*d+istrict courts
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standard states: “With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.”34 Although there is no direct precedent to cite for a mandamus/APA action for refugee processing, the naturalization cases provide support for such a duty: “CIS simply does not possess unfettered discretion to relegate aliens to a state of 'limbo,' leaving them to languish there indefinitely. This result is explicitly foreclosed by the APA."35 And as the district court in Elhaouat v. Mueller noted, “Norton did not hold, however, that the presence of a specific time frame was sine qua non for a Section 706(1) action. And as the Court has repeatedly emphasized, imposing such a requirement would effectively nullify the APA's overarching imperative that agencies conclude matters presented to them within a reasonable period of time.”36 Based on the precedent from naturalization cases, the requirements of the APA arguably make adjudication of a refugee’s application within a reasonable time a statutory duty.
IV. Standard of Review
1. Legal Basis for Reviewing Unreasonable Delays
The Administrative Procedure Act (“APA”) empowers a reviewing court to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1); see also 5 U.S.C. § 555(b) (“With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it”). This judicial discretion is limited by doctrines of “finality” and “ripeness.” The former doctrine stems from the APA, which only permits review for “final agency action” or where otherwise permitted by statute. 5 U.S.C. § 706. As interpreted by the Supreme Court, it generally requires that reviewed decisions “mark the consummation of the agency’s decisionmaking process” and result in “legal consequences.” Bennett v. Spear, 520 U.S. 154, 178 (1997). The latter doctrine, meanwhile, requires that the court weigh “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). While these doctrines normally limit the review of agency action that has not yet completed the decision-making process, the D.C. Circuit has asserted that, “At some point administrative delay amounts to a refusal to act, with sufficient finality and ripeness to permit judicial review.” Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1100 (D.C. Cir. 1970). Precisely when this occurs appears to be at the discretion of the court, in invoking the above tests.
Upon a finding of constructive finality and ripeness along these lines, a court may review the timeliness of the agency’s response and at times compel a decision or urge expedition. The D.C. Circuit has previously described this authority as follows:
around the country are split on the issue of whether jurisdiction lies to entertain a claim for failure to timely adjudicate an adjustment of status application.”
34 5 U.S.C. § 555(b) (emphasis added).
35 Kim. v. Ashcroft, 340 F.Supp.2d 384, 393 (S.D.N.Y. 2004); see also Young Tang v. Chertoff, 493 F.Supp.2d 148, 150 (D. Mass. 2007) (“The duty to act is no duty at all if the deadline is eternity.")
36 2007 WL 2332488 at n.10 (E.D. Pa.).
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[W]hen delay is extremely lengthy or when exigent circumstances render it equivalent to a final denial of petitioners' request, . . . the court can undertake review as though the agency had denied the requested relief and can order an agency to either act or provide a reasoned explanation for its failure to act. When agency recalcitrance is in the face of a clear statutory duty or is of such magnitude that it amounts to an abdication of statutory responsibility, the court has the power to order the agency to act to carry out its substantive statutory mandates. . . . And even when agency delay or recalcitrance does not rise to a level that justifies either of the above courses, [the APA] empowers the court to evaluate the pace of the agency decisional process and to order expedition if the pace lags unreasonably.
Public Citizen Health Research Group v. FDA, 740 F.2d 21, 32 (D.C. Cir. 1984) (citations and quotations omitted).
However, in Norton v. Southern Utah Wilderness Alliance, 545 U.S. 55 (2004), the Supreme Court unanimously established a high threshold for the two latter forms of relief. The Court indicated that these APA provisions were simply intended to codify existing standards for writs of mandamus, and thus should be interpreted in light of the requirements that such writs only be issued to compel a “precise, definite act . . . about which *an official+ had no discretion whatever” under the original statutory authority. Id. at 63 (citations and quotations omitted). Consequently, the Court finds that “a claim under [5 U.S.C.] § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. These limitations rule out several kinds of challenges.” Id. This same limitation similarly applies to situations of delay, as the Court maintains that “a delay cannot be unreasonable with respect to action that is not required.” Id. at n.1.
Combined, these doctrines yield two high thresholds that a plaintiff must pass before they can challenge agency inaction or delay. First, under Southern Utah Wilderness Alliance, they must identify a pre-existing legal obligation outside of the APA that requires them to eventually act on the pending decision (though not necessarily within a specified timeframe). Second, once they identify this underlying obligation, the plaintiffs must establish that the delays they have experienced are egregious enough to justify constructive finality and ripeness and warrant the court’s intervention, either to review and expedite the agency’s decisionmaking process or to compel the agency to make a decision.
2. Demonstrating Unreasonable Delay
While determining whether or not a given delay passes the standard necessary for a writ of mandamus—as required under Southern Utah Wilderness Alliance above—remains largely at the discretion of the court, the D.C. Circuit provided a set of factors that warrant consideration in Telecommunications Research & Action Center (TRAC) v. FCC, 750 F.2d 70 (D.C. Cir. 1984), derived from its prior precedent on delays and related issues of review. Therein it stated the following:
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Although this court has decided several cases involving claims of unreasonable delay, we have not articulated a single test for when the writ should issue. On reading these cases together, however, one can discern the hexagonal contours of a standard. Although the standard is hardly ironclad, and sometimes suffers from vagueness, it nevertheless provides useful guidance in assessing claims of agency delay: (1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
Id. at 79-80 (citations and quotations omitted). The central element of this test is the “rule of reason” described in the first factor, which has been described as a means of ensuring that “the interests of regulatory beneficiaries can be protected from the adverse effects of delays in agency action.” Public Citizen Health Research Group v. Commissioner, FDA, 740 F.2d 21, 32 (D.C. Cir. 1984). These adverse effects have been described in Potomac Electric Power Co. v. ICC: “excessive delay saps the public confidence in an agency's ability to discharge its responsibilities and creates uncertainty for the parties, who must incorporate the potential effect of possible agency decisionmaking into future plans.” 702 F.2d 1026, 1034 (D.C. Cir. 1983). Factors two, three, and five arguably are factors that aver against a finding of reasonableness, on the basis of a statutorily required timeframe, associated risks to human welfare, and the interests of the applicants. Factor four avers in favor of a finding of reasonableness by encouraging the court to evaluate the other compelling interests facing the agency. Factor six rules a particular requirement—impropriety by the agency—as either a necessary or sufficient factor for establishing unreasonable delay.
A cursory survey of precedent that has invoked this standard reveals no cases related to refugee applications. However, there have been a number of cases filed by individuals applying for permanent resident status or other immigration-related status adjustments who have been held up for a significant period by security clearances and background checks. These are reasonable analogies to the situation faced by refugee applicants—particularly because the security checks involved are similar to those required for refugee status, see Daraji v. Monica, 2007 U.S. Dist. LEXIS 76205 (E.D. Pa. 2007), at *3 n.2—and thus may inform evaluations of the unreasonableness of delay in their applications. In one recent case, Daraji v. Monica, 2008 U.S. Dist. LEXIS 4288 (E.D. Pa. 2008), the District Court for the Eastern District of Pennsylvania surveyed several recent decisions on the matter, and found that a number of
Iraqi Refugee Assistance Project
Urban Justice Center
courts applying the TRAC v. FCC standards to residency status cases have found a delay of two years to be “presumptively unreasonable.” Id. at *15. The District Court for the District of Columbia came to a similar conclusion in Liu v. Novak, 509 F. Supp. 2d 1, 10 (D.D.C. 2007), regarding a four year delay in another plaintiff’s application for permanent residency. In that case, the court interestingly maintained that the government’s failure to provide information favoring a finding of reasonableness under TRAC v. FCC factor four was determinative in its conclusion. See id. This appears to represent a shift in the burden for persuasion away from the plaintiff and towards the government once the former establishes a case against reasonableness.
3. Application to Mr. Case
In the case at hand, Mr. seems well suited to make an argument against reasonableness under the TRAC v. FCC test given the twenty month delay in his application for resettlement. Under the first factor’s “rule of reason,” the interests of Mr. and his family are clearly suffering from the government’s delay, as it inhibits them from relocating out of Jordan or seeking better conditions elsewhere while his application for resettlement is pending. While there is no statutorily mandated timeline for completion to fall under factor two, the fact that Mr. is disabled and that he and his family are living in near-destitute conditions without access to many basic social services strongly argues against a finding of unreasonableness on the basis of human welfare concerns under factor three. And the exceedingly limited legal rights provided to Mr. and his family remain in Jordan effectively compromises any number of his interests, providing ample basis for satisfying factor five. And while there is insufficient evidence to launch an allegation of impropriety under factor six, the government has publicly provided little to no information under factor four regarding what impact expediting Mr. file will have on its other institutional interests. While this case may on its face seem a strong one, it is weakened somewhat by the fact that most relevant and analogous precedent addresses delays of significantly greater length, from two to four years. That said, the fact that Mr. and his family are facing far worse conditions than the typical applicant for permanent residency may aver in favor of a slightly lower duration requirement for unreasonable delay in his case.
That said, the high threshold issues of finality, ripeness, and an underlying legal obligation face major obstacles to Mr. case. While a case can be made under the first two considerations that the hardship faced by Mr. and his family warrant findings of constructive finality and ripeness, there appears to be a limited statutory basis upon which he can rest an argument that the government has an underlying legal obligation to complete his application. (This topic is addressed in a companion memorandum.) While Mr. has the makings of a reasonable—if not strong—case under conventional doctrines of unreasonable delay, an inability to identify such an obligation would likely prevent it from ever reaching court
