The opinion of the court was delivered by: Richard W. Roberts United States District Judge
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.
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 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 non-discretionary procedural steps" within the required time period. (Pl.'s Mem. in Support of His Mot. for Summ. J. ("Pl.'s Mem.") at 4.)
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 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 non-statutory), 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. 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 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.*fn1 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 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 ...