                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
SHENGLI ZHANG,                )
                              )
          Plaintiff,          )
                              )
          v.                  )      Civil Action No. 07-1209 (RWR)
                              )
JANET NAPOLITANO, et al.,     )
                              )
          Defendants.         )
 _____________________________)


                       MEMORANDUM OPINION

     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.
                                  -2-

                            BACKGROUND

     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
                                 -3-

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 nondiscretionary procedural steps” within the

required time period.   (Pl.’s Mem. in Support of His Mot. for

Summ. J. (“Pl.’s Mem.”) at 4.)
                                 -4-

                            DISCUSSION

     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
                                 -5-

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 nonstatutory), 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.
                                   -6-

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
                                -7-

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.1   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



      1
      Zhang does not dispute the defendants’ assertions that he
has not left the United States and therefore is still under the
jurisdiction of the immigration court that denied his previous
asylum application and issued the order of removal against him.
                                 -8-

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 Center Counsel to

Scott A. Conwell (Feb. 19, 2008) (“Feb. 19 Letter”) at 1-2.)      The

letter further instructed Zhang that he could file a motion to

reopen or reconsider his application with the Executive Office

for Immigration Review (“EOIR”) where the immigration judge who

denied his first application sits.     (Id.)

       A.   APA

       Under the APA, a court may “compel agency action unlawfully

withheld or unreasonably delayed.”     5 U.S.C. § 706(1).   As

evidenced by the word “unlawfully,” relief under this section is

available only for agency action that is “legally required.”

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63 (2004).

Under 8 U.S.C. § 1158(a)(1), “[a]ny alien who is physically

present in the United States . . . , irrespective of such alien’s

status, may apply for asylum in accordance with” § 1158.      Under 8

U.S.C. § 1158(a)(2)(C), an alien who has previously filed for and

been denied asylum may not apply for asylum unless the alien’s

application falls within the changed circumstances exception
                                 -9-

found in 8 U.S.C. § 1158(a)(2)(D).     Under 8 U.S.C.

§ 1158(a)(2)(D), “[a]n application for asylum of an alien may be

considered, notwithstanding [§ 1158(a)(2)(C)], if the alien

demonstrates to the satisfaction of the Attorney General . . .

the existence of changed circumstances which materially affect

the applicant’s eligibility for asylum.”

     The defendants contend that applicants such as Zhang, who

are under the jurisdiction of the immigration court and seek

consideration of a second asylum application under

§ 1158(a)(2)(D) on the basis of changed circumstances, must file

the application with the immigration judge presiding over the

applicant’s case, along with a motion to reopen or reconsider the

applicant’s case.    (Defs.’ Mem. at 7, 12; Feb. 19 Letter at 1-2.)

“When a court reviews an agency’s construction of the statute

which it administers, it is confronted with two questions.”

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 842 (1985).    The first question is “whether Congress has

directly spoken to the precise question at issue.”      Id.   If it

has, “the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.”     Id. at 842-43.

However, “if the statute is silent or ambiguous with respect to

the specific issue, the question for the court is whether the

agency’s answer is based on a permissible construction of the

statute.”   Id. at 843.   When Congress has charged an agency with
                                -10-

the responsibility to implement a statute, a court “‘must defer

to the agency’s interpretation . . . if it represents a

reasonable accommodation of the conflicting policies that were

committed to the agency’s care by statute.’”      Back Country

Horsemen of Am. v. Johanns, 424 F. Supp. 2d 89, 95 (D.D.C. 2006)

(quoting New York v. EPA, 413 F.3d 3, 23 (D.C. Cir. 2005)

(internal quotation marks omitted)); see Chevron, 467 U.S. at

843-44.    Further, “judicial deference to the Executive Branch is

especially appropriate in the immigration context where officials

‘exercise especially sensitive political functions that implicate

questions of foreign relations.’”      INS v. Aguirre-Aguirre, 526

U.S. 415, 425 (1999) (quoting INS v. Abudu, 485 U.S. 94, 110

(1988)).   Zhang offers no authority to suggest the defendants’

interpretation of § 1158(a)(2)(D) is not an appropriate

interpretation of the duty imposed by the statute that takes into

account the related responsibilities of the USCIS to adjudicate

asylum applications and the EOIR to preside over removal

proceedings.   Accordingly, the USCIS’ interpretation will be

accorded deference.   Because § 1158(a)(2)(D) does not mandate

that the USCIS adjudicate an asylum application filed by an alien

under the jurisdiction of the immigration court, Zhang has not

shown that the defendants failed to take an action required by

§ 1158 and that he is entitled to injunctive relief.
                               -11-

      Zhang also alleges that he is entitled to injunctive relief

compelling the USCIS to adjudicate his new application because

the USCIS has not followed its own published procedures.    He

contends that the USCIS’ “Affirmative Asylum Procedures Manual”

binds the agency to take certain steps to process his

application, including mailing to him an Acknowledgment of

Receipt notice, forwarding his file to the appropriate office,

scheduling him for a new interview, and providing a new

adjudication.   (Pl.’s Mem. at 6-7.)   The defendants contend that

the Manual’s procedures govern only adjudication of applications

within an asylum office and do not apply when an applicant is

under the jurisdiction of the immigration court.   (Defs.’ Mem. at

7.)

      A court generally “accords substantial deference to an

agency’s interpretations of its own regulations” or procedures.

Nat’l Wildlife Fed. v. Browner, 127 F.3d 1126, 1129 (D.C. Cir.

1997) (citing Auer v. Robbins, 519 U.S. 542, 561 (1997) and

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)).

“The agency’s interpretation must be given controlling weight

unless it is plainly erroneous or inconsistent with the

regulations.”   Thomas Jefferson Univ., 512 U.S. at 512 (internal

quotation marks omitted).

      The USCIS’ Manual sets forth its process for adjudicating an

asylum application, including an application filed by “an
                               -12-

applicant who was previously denied asylum by an IJ [immigration

judge] or the BIA.”   (Pl.’s Reply Ex. “Affirmative Asylum

Procedures Manual” (November 2007) (“2007 Manual”) at 127.)     The

parties do not dispute that the USCIS did not follow the listed

steps for processing an application.   However, the Manual also

indicates that there are limits to the USCIS’ jurisdiction to

consider new applications.   In the section explaining who is

eligible to file an application with the asylum office, the

Manual states that “[a]n asylum office may consider a new

affirmative asylum application from an applicant who was

previously denied asylum by an asylum officer as long as the

applicant remains within the jurisdiction of the Asylum Division

pursuant to 8 C.F.R. § 208.2.”2   (Pl.’s Reply Ex. 2007 Manual at

128.)3   In addition, in the section labeled “Jurisdiction,” the

Manual states that “[i]n most cases in which an applicant is

denied asylum by an IJ or BIA, the Asylum Division does not have


     2
      An earlier version of the Manual was in effect when Zhang’s
application was filed. Nonetheless, the 2003 version of the
Manual in effect when Zhang’s second asylum application was filed
contained a substantially similar provision limiting the USCIS’
jurisdiction when an applicant is under the jurisdiction of the
immigration court. It stated: “An asylum applicant may apply for
asylum after the issuance of a final denial, or dismissal of a
motion to reopen or reconsider by the asylum office as long as
s/he is not under the jurisdiction of the Immigration Court.”
(Pl.’s Mot. for Summ. J. Ex. “Affirmative Asylum Procedures
Manual (February 2003)” at 7.)
     3
      Subsection (b) of 8 C.F.R. § 208.2 lists categories of
applicants who fall under the “exclusive jurisdiction” of the
immigration court. See 8 § 208.2(b).
                                -13-

jurisdiction over a subsequently filed application, because

necessarily a charging document had been served on the applicant

and filed with EOIR.”   (Id.)   Thus, the language in the Manual

that Zhang contends binds the USCIS to adjudicate his application

expressly limits any duty to adjudicate to circumstances where

the USCIS has jurisdiction over the application.    It is

undisputed that the USCIS has informed Zhang that it determined

it lacked jurisdiction over his application because he is still

under the jurisdiction of the immigration court.    There is

nothing in the excerpts Zhang presents as relevant that requires

the defendants to take any further action after concluding it

lacks jurisdiction over the application.4    Because Zhang has not

shown that the defendants failed to take an action legally

required of them, he has not shown he is entitled to relief under

the APA.

     B.    Mandamus

     Mandamus relief under 28 U.S.C. § 1361 is similarly

unavailable.   “Mandamus is a ‘drastic’ remedy, ‘to be invoked

only in extraordinary circumstances.’”    Fornaro v. James, 416

F.3d 63, 69 (D.C. Cir. 2005) (quoting Allied Chem. Corp. v.

Daiflon, Inc., 449 U.S. 33, 34 (1980)).     “‘Mandamus is available

only if: (1) the plaintiff has a clear right to relief; (2) the



     4
      The complaint does not seek review of the USCIS’
determination of its jurisdiction to process the application.
                                -14-

defendant has a clear duty to act; and (3) there is no other

adequate remedy available to the plaintiff.’”    Id. (quoting Power

v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002) (internal

quotation marks omitted)).   “The party seeking mandamus ‘has the

burden of showing that its right to issuance of the writ is clear

and indisputable.’”   Power, 292 F.3d at 784 (quoting N. States

Power Co. v. U.S. Dep’t of Energy, 128 F.3d 754, 758 (D.C. Cir.

1997) (internal quotation marks omitted)).   For the reasons

discussed above, Zhang has not established that the defendants

have any outstanding duty to act on the asylum application he

filed with USCIS.   Accordingly, Zhang has failed to show that he

is entitled to the relief sought by the complaint or that there

is any genuine factual dispute that precludes entry of judgment

for the defendants.   Thus, the defendants’ motion for summary

judgment will be granted, the plaintiff’s motion for summary

judgment will be denied, and the defendant’s motion to dismiss

will be denied as moot.

                             CONCLUSION

     Because Zhang has not established that the defendants have

any unfulfilled duty to act after determining the USCIS lacks

jurisdiction over his second asylum application, the defendants’

motion for summary judgment will be granted.    The plaintiff’s

motion for summary judgment will be denied, and the defendants’
                              -15-

motion to dismiss will be denied as moot.   A final order

accompanies this Memorandum Opinion.

     SIGNED this 30th day of March, 2009.



                                      /s/
                              RICHARD W. ROBERTS
                              United States District Judge
