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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-CV-21846-BLOOM/Elfenbein
BLANCA MACHADO,
Plaintiff,
v.
UNITED STATES DEPARTMENT
OF HOMELAND SECURITY, et al.,
Defendants.
___________________________________/
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
THIS CAUSE is before the Court on Defendants United States Department of Homeland
Security (“DHS”), United States Citizenship and Immigration Services (“USCIS”), Secretary of
the Department of Homeland Security Kristi Noem (“Noem”), Acting Director of USCIS Kika
Scott 	(“Scott”), 	and 	Director 	of 	the 	USCIS 	Miami 	Asylum 	Office 	Varsenik 	Papazian
(“Papazian”)’s Motion to Dismiss Complaint for Writ of Mandamus and Injunctive Relief Under
the Administrative Procedures Act (the “Motion”), ECF No. [11]. 	The Honorable Beth Bloom
referred the Motion to me “for a Report and Recommendation” (“R&R”). See ECF No. [21]. For
the reasons explained below, I respectfully RECOMMEND that the Motion, ECF No. [11], be
GRANTED in part and DENIED in part.
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I. 	BACKGROUND1
Plaintiff filed an application for asylum protection with USCIS on January 24, 2022. See
ECF No. [1] at 3. 	DHS “is the federal agency statutorily responsible for adjudicating asylum
claims from persons who are not in removal proceedings,” and “USCIS is the DHS component
that” actually adjudicates those asylum applications. See ECF No. [1] at 2. The asylum “process
includes collecting biometric data for the applicant, conducting an interview with the applicant,
and ultimately issuing a decision by an Asylum Officer adjudicating the asylum claim.” See ECF
No. [1] at 3. “Defendants currently schedule asylum interviews on a last in, first out basis.” See
ECF No. [1] at 3. This last in, first out (“LIFO”) policy “schedules asylum interviews based on
three priorities: (1) applications that were scheduled for an interview, but the interview was
rescheduled; (2) applications that have been pending 21 days or less; and (3) all other pending
asylum applications starting with newer filings and working backward to older filings.” See ECF
No. [1] at 3–4.
Plaintiff’s asylum application has been pending for more than three years, so she falls into
the third category of the LIFO policy. See ECF No. [1] at 1, 3–4. USCIS has not yet scheduled
an interview with Plaintiff, and Defendants have “unequivocally refused” Plaintiff’s request that
her “case be adjudicated as soon as possible.” See ECF No. [1] at 3. And “[b]ecause the number
of new asylum claims filed on a daily basis is larger than the number of asylum interviews
scheduled per day, Plaintiff’s application will never be scheduled for an interview or fully
1 Because the Court evaluates a motion to dismiss and a request for a writ of mandamus, it takes the details
in this section from the Complaint, see ECF No. [1], accepts them as true, and construes them in the light
most favorable to Plaintiff. See, e.g., Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir.
2016) (“In deciding a [Federal Rule of Civil Procedure] 12(b)(6) motion to dismiss, the court must accept
all factual allegations in a complaint as true and take them in the light most favorable to plaintiff.”); Cash
v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (“In resolving whether [28 U.S.C. §] 1361 [mandamus]
jurisdiction is present, allegations of the complaint, unless patently frivolous, are taken as true to avoid
tackling the merits under the ruse of assessing jurisdiction.” (citation omitted)).
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adjudicated under Defendants’ scheduling policies.” 	See ECF No. [1] at 4. 	For that reason,
Plaintiff “lacks any other effective remedy to resolve this issue without the action of the Court,”
so she filed this lawsuit against Defendants on April 22, 2025. See ECF No. [1] at 4.
In the Complaint, Plaintiff asserts two counts against Defendants. See ECF No. [1] at 4–
6. Count I asserts that Defendants have violated the Administrative Procedures Act (“APA”) by
failing to perform “their non-discretionary duty to adjudicate Plaintiff’s asylum application within
a reasonable time.” See ECF No. [1] at 5. Count II asks for mandamus relief based on Plaintiff’s
assertions that she has a right to have her asylum claim adjudicated within a reasonable time, that
Defendants have a “legal duty” to adjudicate the asylum claim in a reasonable time, and that
Defendants have breached the duty “by failing to adjudicate Plaintiff’s asylum claim, or even
schedule an interview, in over 3 years.” See ECF No. [1] at 5.
In both Counts, Plaintiff alleges the delay is “unreasonable” because it “is 26 times the
instructive deadlines set out by both Congress and DHS for performance of these duties,” it has
harmed her welfare, and her “interview will never be scheduled under current policies.” See ECF
No. [1] at 5–6. She alleges she “has exhausted all available administrative remedies,” including
by requesting that her “case be processed,” and there “are no alternative adequate or reasonable
forms of relief available to” her. 	See ECF No. [1] at 5–6. 	As relief, Plaintiff requests that
Defendants be compelled to conduct her “asylum interview within the next 30 days,” to issue a
decision on her asylum claim “in the 30 days following” that interview, and to provide “regular
status updates on” her asylum claim, including her “position in the backlog, until the claim is fully
adjudicated.” See ECF No. [1] at 7.
In response to the Complaint, Defendants filed the Motion in which they contend that
Count I should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because it fails to
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state a claim and that Count II should be dismissed under Rule 12(b)(1) because the Court lacks
subject-matter jurisdiction to adjudicate it. See ECF No. [11] at 1–2. Defendants argue Count I
fails to state a claim because Plaintiff has not identified what “instructive deadlines” they have not
met, they “are under no statutory requirement to adjudicate” her asylum application within any
specific timeframe, courts have found “similar pending times of three years or more to be
reasonable,” and Plaintiff’s “frustration is inherent in the immigration process and does not justify”
her “bypassing other applicants” who “have been waiting a similar or even longer time.” See ECF
No. [11] at 3–5.
Defendants argue the Court is without jurisdiction to consider Count II because Plaintiff
cannot prove the first or second factor of the three-factor mandamus test, as “there is no
congressional, statutory, or administrative authority establishing an asylum application must be
adjudicated within a specific timeframe,” and it is within their “discretion to determine the pace of
adjudication of asylum applications.” See ECF No. [11] at 6. Defendants also argue “Plaintiff has
an adequate alternative relief available through the APA,” which forecloses mandamus relief. See
ECF No. [11] at 7. Finally, Defendants argue that, if the Court determines it has jurisdiction to
adjudicate Plaintiff’s mandamus claim, it should deny that claim under Rule 12(b)(6) for the
reasons explained above as to her APA claim. See ECF No. [11] at 7.
In her Response, as to her APA claim (Count I), Plaintiff argues there is no confusion about
what instructive deadlines she means and that, in any event, she uses those deadlines only as an
indication of unreasonableness, not to assert any right to enforce them. See ECF No. [12] at 6. She
avers that, while Defendants have discretion over the timing of her asylum application, they do not
have discretion to hold her application indefinitely, which her central allegation under the LIFO
policy. See ECF No. [12] at 7–8. Similarly, she argues an indefinite delay is unreasonable as a
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matter of law. 	See ECF No. [12] at 8–10. 	She asserts that she is not trying to “jump the line”
impermissibly and that, regardless, that argument relies on “statements of fact not found in the
Complaint,” which is improper at the motion-to-dismiss stage. See ECF No. [12] at 11. Finally,
Plaintiff argues she has adequately alleged harm from the indefinite delay, including damage to
her mental health and financial welfare. See ECF No. [12] at 11–12.
As to her mandamus claim (Count II), Plaintiff responds that the asylum statute and
implementing regulations impose on Defendants a “clear, non-discretionary duty” to adjudicate
her application and that she alleges “not merely delay, but complete abandonment” of that duty
because the LIFO policy creates a “mathematical impossibility of adjudication.” 	See ECF No.
[12] at 13–14. 	She argues that Defendants’ case law and statutory authority is distinguishable
because “the issue here is not the pace at which Defendants are adjudicating Plaintiff’s asylum
application” but instead “that Defendants will never adjudicate the application because they have
relegated Plaintiff’s application to a backlog of cases to which Defendants do not dedicate
resources and mathematically will never address.” See ECF No. [12] at 15–17. Finally, she states
the Court need not decide whether the APA provides adequate alternative relief because where a
plaintiff “seeks to use the Court’s mandamus jurisdiction to compel action but not to direct the
exercise of judgement or discretion, mandamus jurisdiction is coextensive with the remedies
available under the APA.” See ECF No. [12] at 17.
In their Reply, Defendants provide a fuller description of the LIFO policy, including that
through 	the 	policy 	“USCIS 	schedules 	affirmative 	asylum 	interviews 	along 	two 	tracks
simultaneously.” See ECF No. [13] at 2. “On the second track, USCIS assigns some of its asylum
officers to complete affirmative asylum applications pending in the backlog, starting with the
oldest applications and working forward. This permits some of the oldest pending applications to
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be completed in chronological order.” See ECF No. [13] at 2. As a result, Defendants “maintain”
that Plaintiff’s application “will [be] adjudicated consistent with the LIFO policy,” which courts
have determined is an “identifiable rationale” that is reasonable as a matter of law. See ECF No.
[13] at 2. The Motion is now ripe for review.
II. 	LEGAL STANDARDS
A. Motion to Dismiss
Under Rule 12(b), a party may move to dismiss a claim on several bases, including a “lack
of subject-matter jurisdiction,” Fed. R. Civ. P. 12(b)(1), and a “failure to state a claim upon which
relief can be granted,” Fed. R. Civ. P. 12(b)(6). “The Federal Rules of Civil Procedure require the
dismissal of a claim if a court lacks subject matter jurisdiction over it.” Griffin v. IRS, 730 F. Supp.
3d 1312, 1316 (S.D. Fla. 2024) (citing Fed. R. Civ. P. 12(b)(1), (h)(3)). “A defendant can move
to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial
or factual attack.” Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232
(11th Cir. 2008). “A facial attack on the complaint requires the court merely to look and see if the
plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion.” Id. at 1232–33 (citation omitted). “By
contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction
using material extrinsic from the pleadings, such as affidavits or testimony.” Id. at 1233.
“[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations,” but “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration adopted, quotation
marks omitted). “Factual allegations must be enough to raise a right to relief above the speculative
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level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Id. (citation and footnote omitted). 	A complaint does not “suffice if it tenders naked assertions
devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration
adopted, quotation marks omitted). 	Instead, to “survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Id. (quotation marks omitted). 	“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
“The plausibility standard is not akin to a probability requirement, but it asks for more than
a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” 	Id. (citation and quotation marks omitted). 	“Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense. But where the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” 	Id.
(alteration adopted, citation and quotation marks omitted). 	And when evaluating a motion to
dismiss, “[c]ourts must liberally construe and accept as true allegations of fact in the complaint
and inferences reasonably deductible therefrom, but need not accept factual claims that are
internally inconsistent, facts which run counter to facts of which the court can take judicial notice,
conclusory allegations, unwarranted deductions, or mere legal conclusions asserted by a party.”
Campos v. INS, 32 F. Supp. 2d 1337, 1343 (S.D. Fla. 1998); see also Dusek, 832 F.3d at 1246.
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B. Subject-Matter Jurisdiction
“Federal courts are courts of limited subject-matter jurisdiction,” Hensley v. Hartford Cas.
Ins. Co., 113 F.4th 1327, 1332 (11th Cir. 2024) (quotation marks omitted), and they have an
independent obligation to determine whether subject-matter jurisdiction exists, see Cadet v.
Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004); Alfassi v. Garland, 614 F. Supp. 3d 1252, 1254
(S.D. Fla. 2022). “A district court can hear a case only if it has at least one of three types of subject
matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction
pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).”
Hensley, 113 F.4th at 1332 (quotation marks omitted).
“Although the APA independently does not confer subject-matter jurisdiction, 28 U.S.C.
§ 1331 confers jurisdiction on federal judges to review agency action under federal-question
jurisdiction.” Perez v. U.S. Citizenship & Immigr. Servs., 774 F.3d 960, 965 (11th Cir. 2014);
Osechas Lopez v. Mayorkas, 649 F. Supp. 3d 1278, 1287 (S.D. Fla. 2023). “The APA, however,
expressly excepts review under its provisions where ‘statutes preclude judicial review,’ or ‘agency
action is committed to agency discretion by law.’” Perez, 774 F.3d at 965 (quoting 5 U.S.C.
§ 701(a)). If a court at any time concludes it does not have subject-matter jurisdiction over a claim,
the court must dismiss that claim without prejudice. See, e.g., Fed. R. Civ. P. 12(h)(3); Mahone v.
Ray, 326 F.3d 1176, 1178 n.2 (11th Cir. 2003) (explaining a district court lacking subject-matter
jurisdiction “lacked the power to deny” a motion and was instead “obligated to dismiss” it); Mirage
Resorts, Inc. v. Quiet Nacelle Corp., 206 F.3d 1398, 1401 (11th Cir. 2000).
C. The INA and the APA
The Immigration and Nationality Act (“INA”) authorizes aliens who are physically present
in the United States to apply for asylum. See 8 U.S.C. § 1158(a)(1). The asylum statute gives the
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Attorney General the duty to “establish a procedure for the consideration of asylum applications,”
id. § 1158(d)(1), which she did through the creation of regulations, see 8 C.F.R. §§ 208.1–.25. The
asylum statute also provides that the Secretary of DHS or the Attorney General “may grant asylum
to an alien who has applied for asylum in accordance with” those “requirements and procedures,”
see 8 U.S.C. § 1158(b)(1)(A), and the regulations direct that “USCIS shall adjudicate the claim of
each asylum applicant whose application is complete,” see 8 C.F.R. § 208.9(a). And the statute
directs that “in the absence of exceptional circumstances, the initial interview or hearing on the
asylum application shall commence not later than 45 days after the date an application is filed”
and the “final administrative adjudication of the asylum application, not including administrative
appeal, shall be completed within 180 days after the date an application is filed.” See id.
§ 1158(d)(5)(A)(ii)–(iii).
Despite those seemingly mandatory deadlines, however, a later subsection explains that
nothing in § 1158(d) “shall be construed to create any substantive or procedural right or benefit
that is legally enforceable by any party against the United States or its agencies or officers or any
other person.”2 See id. § 1158(d)(7). And other provisions of the INA make clear that “no court
shall have jurisdiction to review” any “decision or action” that is “in the discretion of the Attorney
General or the Secretary of” DHS. See 8 U.S.C. § 1252(a)(2)(B)(ii). Courts in this Circuit have
construed that provision to preclude review of “discretionary decisions or actions of USCIS.” See
2 Congress seemingly confirmed that these deadlines are aspirational in a different provision enacted to help
“eliminate the current backlog in the processing of immigration benefit applications within 1 year” and
“maintain the elimination of the backlog in future years.” See 8 U.S.C. § 1571(a)(1). In § 1571, Congress
codified its sense “that the processing of an immigration benefit application should be completed not later
than 180 days after the initial filing of the application.” Id. § 1571(b) (emphasis added); see also id. § 1572
(defining “backlog” as “the period of time in excess of 180 days that such application has been pending”
and “immigration benefit application” as “any application or petition to confer, certify, change, adjust, or
extend any status granted under the” INA). As courts in this District have recognized, § 1571 “does not
impose a mandatory pace for adjudicating applications.” See, e.g., Mafundu v. Mayorkas, 699 F. Supp.
3d 1310, 1318 (S.D. Fla. 2023).
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Hasan v. Wolf, 550 F. Supp. 3d 1342, 1345 (N.D. Ga. 2021).
Relatedly, the APA provides that “within a reasonable time, each agency shall proceed to
conclude a matter presented to it.” See 5 U.S.C. § 555. If an agency fails to do so, or if a party is
“adversely affected or aggrieved by agency action within the meaning of a relevant statute,” that
party “is entitled to judicial review.” See id. § 702 (providing that a “person suffering legal wrong
because of agency action, or adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review”); id. § 704 (noting that “final agency action for
which there is no other adequate remedy in a court” is “subject to judicial review”). As part of its
judicial review, a court “shall . . . compel agency action unlawfully withheld or unreasonably
delayed.” See id. § 706.
But § 706 “empowers a court only to compel an agency to perform a ministerial or non-
discretionary act, or to take action upon a matter, without directing how it shall act.” See Norton
v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (quotation marks omitted). And “APA review
does not apply when ‘(1) statutes preclude judicial review; or (2) agency action is committed to
agency discretion by law.’” Kanapuram v. Dir., U.S. Citizenship & Immigr. Servs., 131 F.4th 1302,
1306 (11th Cir. 2025) (quoting 5 U.S.C. § 701(a)). “Congress has given the agencies wide
discretion in the area of immigration processing.” Echeverri v. U.S. Citizenship & Immigr. Servs.,
No. 23-CV-21711-RAR, 2023 WL 5350810, at *6 (S.D. Fla. Aug. 21, 2023) (citation omitted).
Indeed, the Eleventh Circuit recently held “that § 1252(a)(2)(B)(ii) precludes jurisdiction over
challenges to USCIS delays in adjudicating” other kinds of immigration applications. See
Kanapuram, 131 F.4th at 1305–06 (analyzing application for lawful permanent resident status).
D. Mandamus
“A district court may issue a writ of mandamus to compel a government agency to perform
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a duty pursuant to the Mandamus Act.” 	Osechas Lopez, 649 F. Supp. 3d at 1284; see also 28
U.S.C. § 1361 (“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.”). “However, a district court can issue a writ of mandamus only if:
(1) the plaintiff clearly has a right to the relief that is being sought, (2) the defendant has a clear
duty to act in the situation, and (3) there is no other adequate remedy available.” Osechas Lopez,
649 F. Supp. 3d at 1284; see also Cash, 327 F.3d at 1258. “Put another way, a writ of mandamus
‘is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief
and only if the defendant owes him a clear nondiscretionary duty.’” 	Cash, 327 F.3d at 1258
(quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)); see also Hollywood Mobile Ests. Ltd. v.
Seminole Tribe of Fla., 641 F.3d 1259, 1268 (11th Cir. 2011) (A “district court may grant a petition
for a writ of mandamus if the defendant owes the plaintiff a clear nondiscretionary duty and the
plaintiff has exhausted all other avenues of relief.” (quotation marks omitted)).
“Mandamus is ‘an extraordinary remedy which should be utilized only in the clearest and
most compelling of cases.’” Osechas Lopez, 649 F. Supp. 3d at 1284 (quoting Cash, 327 F.3d at
1257). “A writ of mandamus will not be granted if alternative remedies are available.” Hollywood
Mobile, 641 F.3d at 1268; see also Heckler, 466 U.S. at 616; Cash, 327 F.3d at 1258. 	Indeed,
“[e]ven if all three elements are satisfied, a writ is ‘granted only in the exercise of sound
discretion.’” Osechas Lopez, 649 F. Supp. 3d at 1284 (quoting Whitehouse v. Ill. Cent. R.R. Co.,
349 U.S. 366, 373 (1955)); see also Cash, 327 F.3d at 1257–58 (“Although the issuance of a writ
of mandamus is a legal remedy, it is largely controlled by equitable principles and its issuance is
a matter of judicial discretion.” (citation omitted)). “The test for jurisdiction is whether mandamus
would be an appropriate means of relief.” 	Cash, 327 F.3d at 1258 (citation omitted). 	And the
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plaintiff “bears the burden of showing that the right to issuance of the writ is ‘clear and
indisputable.’” Osechas Lopez, 649 F. Supp. 3d at 1284 (quoting Carpenter v. Mohawk Indus. Inc.,
541 F.3d 1048, 1055 (11th Cir. 2008)).
The Eleventh Circuit has made clear that when a plaintiff “has sued under the APA,” he
“cannot satisfy the requirements for mandamus relief” because the APA “provides an adequate
remedy.” See Serrano v. U.S. Atty. Gen., 655 F.3d 1260, 1264 (11th Cir. 2011) (finding plaintiff
had “not demonstrated that he lack[ed] an adequate alternative remedy for obtaining relief”).
Indeed, the “availability of relief under the” APA “forecloses a grant of a writ of mandamus.” See
Hollywood Mobile, 641 F.3d at 1268. 	For that reason, courts in this District regularly dismiss
mandamus claims for lack of subject-matter jurisdiction when the plaintiff also has a claim under
the APA. See, e.g., Mafundu v. Mayorkas, 699 F. Supp. 3d 1310, 1313–14 (S.D. Fla. 2023);
Nascimento v. U.S. Dep’t of Homeland Sec., 689 F. Supp. 3d 1245, 1248–49 (S.D. Fla. 2023);
Osechas Lopez, 649 F. Supp. 3d at 1284–86 & n.3; Alfassi, 614 F. Supp. 3d at 1255–56; Grinberg
v. Swacina, 478 F. Supp. 2d 1350, 1354 (S.D. Fla. 2007); Marmol v. McHenry, No. 25-CV-20499,
2025 WL 1865120, at *3 (S.D. Fla. July 7, 2025). And the Eleventh Circuit regularly affirms those
dismissals. 	See, e.g., Serrano, 655 F.3d at 1264 (“Because [plaintiff] has an adequate remedy
available to him, the district court properly dismissed his request for mandamus relief.”).
III. 	DISCUSSION
To recap, Defendants argue Plaintiff’s APA claim in Count I should be dismissed under
Rule 12(b)(6) for failing to state a claim, and her mandamus claim in Count II should be dismissed
under Rule 12(b)(1) for lack of subject-matter jurisdiction or alternatively under Rule 12(b)(6) for
failure to state a claim. 	Because Defendants’ arguments on Count II primarily challenge the
Court’s power to hear the claim, the Court begins with that Count.
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A. Mandamus Claim (Count II)
Starting with Plaintiff’s mandamus claim, abundant precedent makes clear that the Court
does not have jurisdiction to decide it. Indeed, the Court can issue a writ of mandamus here only
if Plaintiff has a clear right to the relief she seeks, Defendants have a clear duty to provide it, and
she has no other adequate remedy. See Cash, 327 F.3d at 1258; Osechas Lopez, 649 F. Supp. 3d
at 1284. Plaintiff cannot meet any of those requirements.
First, the relief Plaintiff seeks is that Defendants be compelled to conduct her asylum
interview within the next 30 days, to issue a decision on her asylum claim in the 30 days following
that interview, and to provide regular status updates on her asylum claim, including her position
in the backlog, until the claim is fully adjudicated. See ECF No. [1] at 7. But while Defendants
have a clear and mandatory duty to adjudicate her asylum application eventually, see 5 U.S.C.
§ 555; 8 C.F.R. § 208.9(a), they do not have a clear and mandatory duty to adjudicate it within her
“preferred timeframe,” see Mafundu, 699 F. Supp. 3d at 1314. Despite the mandatory language in
§ 1158(d) establishing statutory deadlines of 45 days to schedule an interview and 180 days to
adjudicate an asylum claim, see 8 U.S.C. § 1158(d)(5)(A)(ii)–(iii), a later portion of that subsection
makes clear that those deadlines do not “create any substantive or procedural right or benefit that
is legally enforceable by any party against the United States or its agencies or officers,” see id.
§ 1158(d)(7). “Therefore, those ‘deadlines’ do not create a private right of action.” See Marmol,
2025 WL 1865120, at *3. 	For that reason, Plaintiff cannot meet the first two requirements for
mandamus relief (a clear right to the relief she seeks and Defendants’ clear duty to provide it). See
id.; Cash, 327 F.3d at 1258.
Second, even if Plaintiff could meet the first two requirements, she still could not meet the
third one. Mandamus relief will not be granted if alternative remedies are available, and Plaintiff
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has an alternative remedy here: her APA claim. See Heckler, 466 U.S. at 616; Serrano, 655 F.3d
at 1264; Hollywood Mobile, 641 F.3d at 1268; Cash, 327 F.3d at 1258. While Plaintiff argues that,
under the circumstances here, mandamus jurisdiction is coextensive with the remedies available
under the APA, see ECF No. [12] at 17, that proposition does not give the Court subject-matter
jurisdiction over her mandamus claim, see Grinberg, 478 F. Supp. 2d at 1355. Instead, it supports
“assess[ing] the merits of both claims . . . under the APA.” See id.
As a result, this Court joins its colleagues in concluding that it does not have subject-matter
jurisdiction to decide Plaintiff’s mandamus claim. See, e.g., Mafundu, 699 F. Supp. 3d at 1313–
14; Nascimento, 689 F. Supp. 3d at 1248–49; Osechas Lopez, 649 F. Supp. 3d at 1284–86 & n.3;
Alfassi, 614 F. Supp. 3d at 1255–56; Grinberg, 478 F. Supp. 2d at 1354; Marmol, 2025 WL
1865120, at *3. Accordingly, I respectfully RECOMMEND that the Motion, ECF No. [11], be
GRANTED as to Count II and that Count II be DISMISSED. See Serrano, 655 F.3d at 1264;
Hollywood Mobile, 641 F.3d at 1268; Fed. R. Civ. P. 12(h)(3); Mahone, 326 F.3d at 1178 n.2.
B. APA Claim (Count I)
Moving to the APA claim, Plaintiff’s central allegation is that, under the LIFO policy,
Defendants will never adjudicate her asylum application because that policy does not merely delay
adjudication but instead makes adjudication mathematically impossible. See ECF No. [1] at 5–6;
ECF No. [12] at 13–17. Plaintiff argues that distinction differentiates her claim from the claims
of other plaintiffs who have challenged the pace or timing of Defendants’ adjudication of their
immigration applications because she alleges Defendants’ indefinite delay is, in effect, a complete
abandonment of their statutory duty to adjudicate her application. See ECF No. [1] at 5–6; ECF
No. [12] at 13–17; cf. 5 U.S.C. § 555; 8 U.S.C. § 1158(d)(5)(A)(ii)–(iii). The Court agrees.
While the law supports a conclusion that the pace and timing of adjudicating immigration
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applications are entirely within Defendants’ discretion, see, e.g., Kanapuram, 131 F.4th at 1305–
06; Alfassi, 614 F. Supp. 3d at 1256; Grinberg, 478 F. Supp. 2d at 1355; Hasan, 550 F. Supp. 3d
at 1349, the same is not true as it relates to Defendants’ statutory duty to adjudicate immigration
applications. On that point, Plaintiff is correct that Defendants’ duty is nondiscretionary. 	See 5
U.S.C. § 555 (requiring agencies to conclude matters presented to them); 8 C.F.R. § 208.9(a)
(requiring USCIS to adjudicate complete asylum applications); Girges v. Sec’y, Dep’t of
Homeland Sec., No. 22-CV-158-GAP-LHP, 2022 WL 2774211, at *3 (M.D. Fla. June 8, 2022)
(“Congress did not leave the adjudication of asylum applications to the Government’s discretion.”
(footnote omitted)). “The Government simply does not possess unfettered discretion to relegate
aliens to a state of limbo, leaving them to languish there indefinitely. To conclude otherwise would
be to nullify critical provisions of the APA and the text of the asylum statute.” Girges, 2022 WL
2774211, at *3 (citation and quotation marks omitted).
Because Defendants must at some point adjudicate Plaintiff’s asylum application, see 5
U.S.C. § 555; 8 C.F.R. § 208.9(a), and because Plaintiff alleges under the LIFO policy that they
never will, ECF No. [1] at 5–6; ECF No. [12] at 13–17 (alleging Defendants relegated her
application to a backlog of cases to which they do not dedicate resources and which, therefore,
they mathematically will never address), Plaintiff has alleged Defendants have failed to perform a
nondiscretionary duty. While Defendants explain in their Reply that the LIFO policy actually has
two tracks and that Plaintiff’s application ultimately will be adjudicated through one of those
tracks, see ECF No. [13] at 2, at this stage of the litigation, the Court must accept Plaintiff’s factual
allegations as true and take them in the light most favorable to her.3 See Dusek, 832 F.3d at 1246;
3 While the Court typically does not consider materials outside the Complaint when evaluating a motion to
dismiss, it can consider any documents “incorporated in the complaint by reference,” see Saunders v. Duke,
766 F.3d 1262, 1270 (11th Cir. 2014), and any documents incorporated by reference within the motion if
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Campos, 32 F. Supp. 2d at 1337. And accepting as true that Defendants are following a policy that
makes the adjudication of Plaintiff’s asylum application a “mathematical impossibility,” see ECF
No. [12] at 13–14, Plaintiff has adequately stated a claim on which relief could be granted. See 5
U.S.C. §§ 555, 706; 8 C.F.R. § 208.9(a); Norton, 542 U.S. at 64 (noting § 706 empowers courts to
compel 	an 	agency 	to 	perform 	a 	non-discretionary 	act). 	Accordingly, 	I 	respectfully
RECOMMEND that the Motion, ECF No. [11], be DENIED as to Count I.
IV. 	CONCLUSION
For the reasons explained above, I respectfully RECOMMEND that the Motion, ECF No.
[11], be GRANTED in part and DENIED in part. Specifically, I RECOMMEND that Count
II be DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction and that
Count I be allowed to proceed, requiring Defendants to file their Answer and Affirmative Defenses
within 20 days of the Court’s Order.
The Parties will have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation within which to file written objections, if any, with the Honorable
Beth Bloom, United States District Judge. 	Failure to timely file objections shall bar the Parties
from a de novo determination by the District Judge of an issue covered in the Report and shall bar
the Parties from attacking on appeal unobjected-to factual and legal conclusions contained in this
they are “central to the plaintiff’s claim” and their “authenticity” is “not challenged,” see Day v. Taylor,
400 F.3d 1272, 1276 (11th Cir. 2005). Here, the parameters of the LIFO policy are not fully set out in the
Complaint, but the policy is referenced in the Complaint. Defendants purport to set out the policy in its
entirety in their Reply; however, because sur-replies are not typically allowed, it is unclear to the Court
whether the authenticity of the policy in the Reply is unchallenged. But even if the Court had authority to
consider the LIFO policy set forth in the Reply in deciding the Motion, nothing in the LIFO policy itself
demonstrates that Plaintiff’s allegation of mathematical impossibility is “internally inconsistent” with that
policy, see Campos, 32 F. Supp. 2d at 1343; therefore, the Court must credit Plaintiff’s allegation at this
stage, see id. at 1337; Dusek, 832 F.3d at 1246; cf. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205–06
(11th Cir. 2007) (noting that if a document attached to the motion to dismiss “contradict[s] the general and
conclusory allegations of the pleading, the” attached document “govern[s]”).
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Report except upon grounds of plain error if necessary in the interest of justice. 	See 28 U.S.C.
§ 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th
Cir. 1989); 11th Cir. R. 3-1.
RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on November 12, 2025.
_____________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE
cc: All Counsel of Record
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