Case Name in Immigration Case - Unavailable

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CV-24368-LENARD/Elfenbein
SAPIR COHEN,
Petitioner,
v.
U.S. DEPARTMENT OF
HOMELAND SECURITY, et al.,
Respondents.
____________________________________/
REPORT AND RECOMMENDATION ON
MOTION FOR TEMPORARY INJUNCTION AND TO EXPEDITE
THIS CAUSE is before the Court on Plaintiff Sapir Cohen’s Motion for Temporary
Injunction and to Expedite Temporary Injunction Hearing and Trial (the “Motion”). See ECF No.
[32]. The Honorable Joan A. Lenard referred the Motion “and all related motions and pleadings”
to me for “a report and recommendation.” 	ECF No. [44]. 	For the reasons explained below, I
respectfully RECOMMEND that the Motion, ECF No. [32], be DENIED.
I. 	BACKGROUND
Plaintiff “is a native and citizen of Israel” who was “granted lawful permanent resident
status on October 6, 2020, based on her marriage to a lawful permanent resident.” ECF No. [1] at
2. “She has maintained that status continuously since its grant, never departing the United States
for more than brief trips abroad.” 	ECF No. [1] at 4. 	As a lawful permanent resident, Plaintiff
received “a permanent residence card, known officially as the alien registration receipt card (Form
I-551), or colloquially as the ‘Green Card.’” ECF No. [1] at 3.
On May 9, 2024, Plaintiff “sought admission to the United States at Miami International
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Airport after a brief trip abroad lasting less than two weeks,” but, during “secondary inspection,”
U.S. Customs and Border Protection (“CBP”) “officers confiscated her Green Card without
providing any written explanation of the grounds for confiscation, presenting any evidence of
immigration violations, or completing Form I-546 with required details.”1 	ECF No. [1] at 4.
Between “May 9, 2024, and November 13, 2024,” CBP required Plaintiff “to appear for four
separate deferred inspection appointments,” but nothing was resolved during those appointments,
and Plaintiff’s Green Card was not returned. 	See ECF No. [1] at 4. 	For that reason, and “to
facilitate resolution,” Plaintiff’s immigration lawyer asked “CBP to issue a Notice to Appear in
Immigration Court” if it “had evidence of any immigration violations.” See ECF No. [1] at 4. But
CBP did not do so, and “the CBP supervisor admitted” it “lacked evidence to support such action.”
See ECF No. [1] at 4. 	Relatedly, on October 23, 2024, “Plaintiff submitted a request to CBP
seeking records related to the confiscation of” her “Green Card and any policies, procedures, or
communications regarding her case” under the Freedom of Information Act (“FOIA”). See ECF
No. [1] at 5.
On November 7, 2024, Plaintiff filed a Complaint against Defendants U.S. Department of
Homeland Security (“DHS”); Alejandro Mayorkas, in his official capacity as Secretary of DHS;
CBP; and Troy A. Miller, in his official capacity as Commissioner of CBP. ECF No. [1] at 1. The
Complaint asserts two claims. 	In Count I, Plaintiff requests a writ of mandamus “ordering the
1 A Form I-546 is “an Order to Appear-Deferred Inspection,” which is “used when an immediate decision
concerning the immigration status of an arriving traveler cannot be made at the port of entry due to a lack
of documentation. On a case-by-case basis, the port of entry may schedule the traveler to report to a
Deferred Inspection Site at a future date in order to present the necessary documentation and/or
information.” The Form I-546 explains “what information and/or documentation is required to resolve the
discrepancy.” See Deferred Inspection Sites, U.S. Customs & Border Prot., https://www.cbp.gov/about/
contact/ports/deferred-inspection-sites (last visited Jan. 30, 2026); ECF No. [1] at 7 (“CBP’s own
regulations and procedures require officers to document any retention of immigration documents on Form
I-546 with specific reasons and details for the retention.”).
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immediate return of Plaintiff’s Green Card and lawful admission of Plaintiff to the United States
nunc pro tunc, May 9, 2024,” along with a declaration that Defendants’ actions were unlawful and
an award of attorney’s fees and costs. See ECF No. [1] at 6–8. In Count II, Plaintiff asserts that
Defendants violated FOIA “by failing to make a determination on Plaintiff’s FOIA request within
twenty business days and by failing to provide any estimated date of completion.” See ECF No.
[1] at 8–9. On that claim, she asks the Court to “order Defendants to immediately conduct a search
for all records responsive to Plaintiff's FOIA request, process any responsive records, promptly
produce all non-exempt records to Plaintiff, and award Plaintiff reasonable attorneys’ fees and
costs.” See ECF No. [1] at 8–9.
About ten months after filing the Complaint — and fifteen months after CBP took
Plaintiff’s Green Card — CBP had still not returned the Green Card or brought any charges against
Plaintiff, so she filed the Motion. See ECF No. [32] at 1–2. In the Motion, Plaintiff asks the Court
to “grant temporary injunctive relief ordering the immediate return of” her Green Card and to
“expedite all proceedings in this case under 28 U.S.C. § 1657, including resolution of Plaintiff’s
Cross-Motion to Compel Production of Administrative Record and Defendants’ Motion to
Quash/Stay Discovery, to allow this case to reach trial expeditiously.” See ECF No. [32] at 2. She
argues the “unlawful retention” of her Green Card has “caused severe and ongoing harm” by
preventing her from traveling to Israel to care for her elderly mother and be present for the birth
of her sister’s child, from accessing “government services requiring proof of status,” and from
filing “her naturalization application, which she became eligible” to do in May 2025. 	See ECF
No. [32] at 2–3.
In their Response, Defendants argue that Plaintiff’s request for temporary injunctive relief
(Count I) is moot because they “have returned the Plaintiff’s green card, the sole form of relief
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sought through” that part of the Motion. 	See ECF No. [35] at 1. 	Defendants also argue that
Plaintiff’s secondary request for “expedited review of outstanding motions and an expedited trial
in this matter is similarly mooted” because, now that she has her Green Card back, she “has
obtained the relief available to her pursuant to the Administrative Procedure Act,” which
Defendants contend is the basis for Count I. See ECF No. [35] at 2. Finally, they note that they
have separately moved to dismiss Plaintiff’s FOIA claim (Count II) as moot, see ECF No. [35] at
2, because they “provided a full and final response to Plaintiff’s FOIA request” on December 9,
2024, see ECF No. [19] at 2.
In her Reply, Plaintiff “agrees that the temporary injunction seeking return of her green
card is now moot since she possesses it,” but she argues that her “request to expedite trial and
proceedings remains vital and necessary.” See ECF No. [39] at 2. This is because “Defendants
provide no explanation for the seizure, no assurance it won’t recur, and no acknowledgment of
wrongdoing,” so there is nothing preventing CBP from seizing her Green Card again which chills
“her constitutional right to travel.” See ECF No. [39] at 2. She argues that she “remains entitled
to declaratory relief, a writ of mandamus establishing her proper admission status, attorneys’ fees
and costs, and most importantly, judicial determination that will allow her to travel internationally
without fear of repeated constitutional violations.” See ECF No. [39] at 3. She asks the Court to
“expedite trial to finally resolve the legality of Defendants’ actions and prevent future harm.” See
ECF No. [39] at 3. As to the FOIA claim, Plaintiff argues it “remains pending for determination
of attorneys’ fees even after production of FOIA documents.” See ECF No. [39] at 2. The Motion
is now ripe for review.
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II. LEGAL STANDARDS
A. Mandamus
“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.” 28 U.S.C. § 1361; see also Cash v. Barnhart, 327 F.3d 1252, 1257 (11th
Cir. 2003); Osechas Lopez v. Mayorkas, 649 F. Supp. 3d 1278, 1284 (S.D. Fla. 2023). “The test
for jurisdiction is whether mandamus would be an appropriate means of relief.” Cash, 327 F.3d
at 1258 (citation omitted). “In resolving whether [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.” Id. (citation omitted). Substantively, the “writ of mandamus is an
order directing a public official or public body to perform a duty exacted by law” and “may be
issued to compel compliance with a variety of legal duties by a host of officials and bodies.”
United States v. Denson, 603 F.2d 1143, 1146 (5th Cir. 1979). 	But it “is hornbook law that
mandamus is an extraordinary remedy which should be utilized only in the clearest and most
compelling of cases.” Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969); see also Cash, 327
F.3d at 1257; Osechas Lopez, 649 F. Supp. 3d at 1284.
“Generally speaking, before the writ of mandamus may properly issue three elements must
coexist: (1) a clear right in the plaintiff to the relief sought; (2) a clear duty on the part of the
defendant to do the act in question; and (3) no other adequate remedy available.” Carter, 411 F.2d
at 773; see also Cash, 327 F.3d at 1258; Osechas Lopez, 649 F. Supp. 3d at 1284. 	Indeed, the
“writ will not issue to correct a duty that is to any degree debatable.” Denson, 603 F.2d at 1148
n.2. And “[i]n connection with the last requirement, it is important to bear in mind that mandamus
does not supersede other remedies, but rather comes into play where there is a want of such
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remedies.” Carter, 411 F.2d at 773; see also Heckler v. Ringer, 466 U.S. 602, 616 (1984);
Hollywood Mobile Ests. Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1268 (11th Cir. 2011) (“A
writ of mandamus will not be granted if alternative remedies are available.”). “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, 466 U.S. at 616). The 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)).
“Though it is a legal remedy, it is largely controlled by equitable principles and its issuance
is a matter of judicial discretion.” 	Carter, 411 F.2d at 773; see also Denson, 603 F.2d at 1146
(“The Supreme Court has repeatedly stated in general terms that issuance of a writ of mandamus
lies in large part within the discretion of the court.”); Osechas Lopez, 649 F. Supp. 3d at 1284
(“Even if all three elements are satisfied, a writ is ‘granted only in the exercise of sound
discretion.’” (quoting Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 373 (1955))). “The scope
of discretion is, however, circumscribed by the purpose for which the writ is sought. Under some
circumstances the room for judgment is narrowly constrained.” Denson, 603 F.2d at 1146. One
such situation involves the right to a jury trial: “There can be no doubt that a litigant is entitled to
a writ of mandamus to protect a clear constitutional or statutory right to a jury trial.” Id. at 1147
(quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 511 (1959) (Stewart, J., dissenting)
(rephrasing the majority’s holding)).
B. Declaratory Judgment
“In a case of actual controversy within its jurisdiction, . . . any court of the United States,
upon the filing of an appropriate pleading, may declare the rights and other legal relations of any
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interested party seeking such declaration, whether or not further relief is or could be sought. Any
such declaration shall have the force and effect of a final judgment or decree and shall be
reviewable as such.” 28 U.S.C. § 2201(a). “The Declaratory Judgment Act [is] an authorization,
not a command. It [gives] the federal courts competence to make a declaration of rights; it [does]
not impose a duty to do so.” Pub. Affs. Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962). If a
court determines it is appropriate, it “may grant declaratory relief even though it chooses not to
issue an injunction or mandamus.” Powell v. McCormack, 395 U.S. 486, 499 (1969).
“The availability of declaratory relief depends on whether there is a live dispute between
the parties, and a request for declaratory relief may be considered independently of whether other
forms of relief are appropriate.” Id. at 517–18 (citations omitted). For there to be a live dispute
such that declaratory relief is available, “there must be a substantial continuing controversy
between parties having adverse legal interests,” and the “plaintiff must allege facts from which the
continuation of the dispute may be reasonably inferred.” 	See Emory v. Peeler, 756 F.2d 1547,
1552 (11th Cir. 1985). 	The “continuing controversy may not be conjectural, hypothetical, or
contingent; it must be real and immediate, and create a definite, rather than speculative threat of
future injury.” 	Id. 	“The remote possibility that a future injury may happen is not sufficient to
satisfy the actual controversy requirement for declaratory judgments.” Id. (quotation marks
omitted); see also Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1347 (11th Cir.
1999) (noting “a perhaps or maybe chance is not enough” (quotation marks omitted)).
As a result, “[i]njury in the past . . . does not support a finding of an Article III case or
controversy when the only relief sought is a declaratory judgment.” Malowney, 193 F.3d at 1348.
That is because “a declaration” about something that occurred to a plaintiff “in the past” would be
“nothing more than a gratuitous comment without any force or effect.” See id. (quotation marks
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omitted). 	For that reason, if a plaintiff “requests a declaration from this Court related to past
conduct alone, such declaratory relief is moot.” See Creedle v. Miami-Dade Cnty., 349 F. Supp.
3d 1276, 1292 (S.D. Fla. 2018).
“Suits for declaratory judgment are a statutory creation enacted by Congress in the
Declaratory Judgment Act and are neither inherently legal nor equitable in nature. When
determining whether a declaratory judgment action is legal or equitable, courts have examined the
basic nature of the issues involved to determine how they would have arisen had Congress not
enacted the Declaratory Judgment Act.” Gulf Life Ins. Co. v. Arnold, 809 F.2d 1520, 1523 (11th
Cir. 1987) (citations and quotation marks omitted). 	“The fact that the action is in form a
declaratory judgment case should not obscure the essentially legal nature of the action” if the
“questions involved are traditional common-law issues.” See Simler v. Conner, 372 U.S. 221, 223
(1963).
Thus, as a procedural mechanism, the Declaratory Judgment Act “preserves the right to
jury trial for both parties,” see Beacon Theatres, 359 U.S. at 504 (holding that if a party “would
have been entitled to a jury trial” if it had sued the opposing party, “it cannot be deprived of that
right merely because” the opposing party “took advantage of the availability of declaratory relief
to sue . . . first”), because “the Seventh Amendment right to a jury trial is not abridged when
equitable and legal claims are joined in the same action,” see Stewart v. KHD Deutz of Am. Corp.,
75 F.3d 1522, 1527 (11th Cir. 1996). But it “does not create a right to a jury trial.” See Sunshine
Co. Food Distrib., Inc. v. U.S.C.I.S., 362 F. App’x 1, 4 (11th Cir. 2010). 	Instead, to determine
whether a party has the right to a jury trial in an action for declaratory relief, courts look to “the
substantive dimension of the claim asserted.” See Simler, 372 U.S. at 222; id. at 223 (noting that
questions involving “traditional common-law issues . . . should have been submitted to a jury”).
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C. The Court’s Authority to Expedite Trial
“Notwithstanding any other provision of law, each court of the United States shall
determine the order in which civil actions are heard and determined, except that the court shall
expedite the consideration of . . . any action for temporary or preliminary injunctive relief, or any
other action if good cause therefor is shown.” 28 U.S.C. § 1657(a). “For purposes of” § 1657(a),
“‘good cause’ is shown if a right under the Constitution of the United States or a Federal Statute”
would “be maintained in a factual context that indicates that a request for expedited consideration
has merit.” Id.
D. Admission of Aliens to the United States
“[A]t the nation’s borders, the [DHS] has broad powers to require basically any proof it
needs before allowing a party to leave or enter the U.S.” See In re Candiotti, 729 F. Supp. 840,
844 (S.D. Fla. 1990). 	As part of those powers, DHS requires all aliens “who are applicants for
admission or otherwise seeking admission or readmission to or transit through the United States”
to “be inspected by immigration officers.”2 	See 8 U.S.C. § 1225(a)(3); Zardui-Quintana v.
Richard, 768 F.2d 1213, 1216 (11th Cir. 1985). “Each alien seeking admission at a United States
port-of-entry must present whatever documents are required and must establish to the satisfaction
of the inspecting officer that the alien is not subject to removal under the immigration laws,
Executive Orders, or Presidential Proclamations, and is entitled, under all of the applicable
provisions of the immigration laws and this chapter, to enter the United States.” 8 C.F.R.
§ 235.1(f)(1); see also 8 U.S.C. §§ 1101(a)(27)(A), 1181(b). Relevant here, “[a] person claiming
to have been lawfully admitted for permanent residence must establish that fact to the satisfaction
of the inspecting officer and must present proper documents.” 8 C.F.R. § 235.1(f)(1)(i). For an
2 “An alien . . . who arrives in the United States . . . shall be deemed for purposes of this chapter an applicant
for admission.” See 8 U.S.C. § 1225(a)(1).
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“arriving alien applying for admission” as “a lawful permanent resident returning to an
unrelinquished lawful permanent residence in the United States,” proper documents include a
“valid, unexpired Form I–551, Permanent Resident Card” (a Green Card) “if seeking readmission
after a temporary absence of less than 1 year.” See id. § 211.1(a)(2).3
“[I]n the case of an alien who is an applicant for admission, if the examining immigration
officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for” removal proceedings. See 8 U.S.C. § 1225(a)(2)(A);
Zardui-Quintana, 768 F.2d at 1216. Despite that decree, however, DHS may in its “discretion
parole” an alien “into the United States temporarily under such conditions as” it “may prescribe.”
See 8 U.S.C. § 1182(d)(5)(A); Gonzalez ex rel. Gonzalez v. Reno, 86 F. Supp. 2d 1167, 1176 &
n.6 (S.D. Fla. 2000) (“The decision to grant parole in lieu of detention pending removal is a matter
within the discretion of the” DHS.), aff’d sub nom. Gonzalez v. Reno, 212 F.3d 1338 (11th Cir.
2000).4
E. Attorney’s Fees Under FOIA
“The court may assess against the United States reasonable attorney fees and other
litigation costs reasonably incurred in any case under this section in which the complainant has
substantially prevailed.” 5 U.S.C. § 552(a)(4)(E)(i). As the language of the statute makes clear,
3 Along with proper documents, DHS may also “require an alien seeking admission to be photographed”
and to “provide other biometrics, documentation of immigration status in the United States,” and “such
other evidence as may be requested to determine the alien’s identity and admissibility and/or whether the
alien has properly maintained immigration status while in the United States.” Id. § 235.1(f)(1)(ii)–(iii).
4 Indeed, a “district director may, in his or her discretion, defer the inspection of” any alien “to another
Service office or port-of-entry,” 8 C.F.R. § 235.2(a), including the “place where the alien is seeking
admission” or the “place of the alien’s residence or destination in the United States, if the examining
immigration officer has reason to believe that the alien can overcome a finding of inadmissibility by . . .
[p]resenting additional evidence of admissibility not available at the time and place of the initial
examination,” id. § 235.2(b)(3).4 See Gonzalez, 86 F. Supp. 2d at 1176. The deferral lasts “for the period
of time necessary to complete the deferred inspection.” See 8 C.F.R. § 235.2(c).
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whether an award of attorney’s fees is appropriate in a FOIA claim is a discretionary decision
made by the court. See Clarkson v. I.R.S., 678 F.2d 1368, 1371 (11th Cir. 1982) (“[I]n the context
of FOIA litigation, an award of attorney fees and costs is proper only where the party seeking the
award has ‘substantially prevailed’ in the litigation and where the court, in its discretion,
determines that such an award is justified in a particular case.”); Lovell v. Alderete, 630 F.2d 428,
431 (5th Cir. 1980) (“It is clear that an attorney’s fees award under the FOIA . . . is discretionary
rather than presumptive.”).
To exercise that discretion, courts use a two-step process. First, they assess whether “a
plaintiff has substantially prevailed and thus become eligible for an award of attorney’s fees.” See
Lovell, 630 F.2d at 431; 5 U.S.C. § 552(a)(4)(E)(ii) (defining “substantially prevailed”). 	If so,
they then “determine whether the plaintiff is entitled to the award in light of [four] criteria.” See
Lovell, 630 F.2d at 431–32. Parties believing they should be awarded attorney’s fees under FOIA
generally request those fees through a motion to the court. See, e.g., Ray v. U.S. Dep’t of Just., 87
F.3d 1250, 1251 (11th Cir. 1996) (“As a prevailing party, Ray filed a motion for attorney’s fees
under FOIA.”); Clarkson, 678 F.2d at 1370; St. Andrews Park, Inc. v. U.S. Dep’t of Army Corps
of Eng’rs, 299 F. Supp. 2d 1264, 1273 (S.D. Fla. 2003) (granting FOIA claim and ordering that
“any motions for attorneys’ fees and costs be filed” within 30 days).
III. 	DISCUSSION
As explained above, Plaintiff seeks several forms of relief in the Motion: a temporary
injunction ordering Defendants to return her Green Card, an order expediting all the proceedings
in this case under § 1657, and an expedited determination of entitlement to attorney’s fees and
costs. See ECF No. [32] at 2, 9. But Plaintiff admits in her Reply that Defendants have finally
returned her Green Card, so that facet of the Motion is now moot. See ECF No. [39] at 2 (“Plaintiff
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agrees that the temporary injunction seeking return of her green card is now moot since she
possesses it.”). 	Accordingly, I respectfully RECOMMEND that Plaintiff’s request within the
Motion for a temporary injunction ordering Defendants to return her Green Card be DENIED AS
MOOT.
Even so, Plaintiff argues that her “request to expedite trial and proceedings remains vital
and necessary” because Defendants have not explained why they took her Green Card, admitted it
was wrong, or assured her they will not take it again, which chills her constitutional right to travel.
See ECF No. [39] at 2. For that reason, Plaintiff reiterates her request for a declaration on an
expedited basis that Defendants’ actions were unlawful and further refines her request for
mandamus to focus on the “establish[ment of] her proper admission status,” see ECF No. [39] at
3 — that is, she asks the Court to order Defendants to deem her “lawful[ly] admi[tted] . . . to the
United States nunc pro tunc, May 9, 2024,” see ECF No. [1] at 8. 	She also argues that her
entitlement to attorney’s fees and costs remains live for both claims. See ECF No. [39] at 2–3.
The Court can expedite any action “if good cause therefor is shown.” See 28 U.S.C.
§ 1657(a). Good cause exists if a constitutional or statutory right is involved and “factual context”
indicates that “a request for expedited consideration has merit.” See id. But before it can determine
whether there is merit to Plaintiff’s expedition request, the Court must first decide whether any
triable issues remain live for decision.
Looking first to Count II, Plaintiff alleges a FOIA violation based on Defendants’ failure
to resolve her FOIA request within the required timeframe. See ECF No. [1] at 8–9. 	But as
Defendants explained in their Response and associated Motion to Dismiss Count II, they “provided
a full and final response to Plaintiff’s FOIA request” on December 9, 2024. See ECF No. [19] at
2; ECF No. [35] at 2. As a result, Defendants argue Plaintiff’s FOIA claim is moot, see ECF No.
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[35] at 2, which Plaintiff seems to concede in her Reply by acknowledging that “Count II remains
pending for determination of attorneys’ fees even after production of FOIA documents,” see ECF
No. [39] at 2.
A determination of attorney’s fees in the FOIA context is a discretionary decision made by
the Court using a two-part test. See 5 U.S.C. § 552(a)(4)(E)(i)–(ii); Clarkson, 678 F.2d at 1370;
Lovell, 630 F.2d at 431–32. For that reason, it is typically presented to the Court in a motion, see
Ray, 87 F.3d at 1251; Clarkson, 678 F.2d at 1370; St. Andrews Park, 299 F. Supp. 2d at 1273, or,
as here, in the plaintiff’s request for relief in the complaint, see ECF No. [1] at 9. An issue that is
at the Court’s discretion is not a triable issue. And because Plaintiff’s request for FOIA attorney’s
fees is not a triable issue, it cannot support a conclusion that there is good cause for expediting a
trial here. See 28 U.S.C. § 1657(a). Likewise, because Plaintiff’s request for FOIA attorney’s fees
will not resolve her fears or “prevent future harm” to her, see ECF No. [39], at 3, it cannot support
a conclusion that there is good cause for expediting any other proceedings short of trial either.
Accordingly, I respectfully RECOMMEND that Plaintiff’s request to expedite trial and
proceedings be DENIED as it relates to FOIA attorney’s fees. Plaintiff may bring that request the
traditional way, through a motion the Court will decide in due course.5
Returning to Count I, which Plaintiff frames as a claim for a “Writ of Mandamus,” ECF
No. [1] at 6, the Court has already concluded that the primary relief Plaintiff requested through
that Count — physical possession of her Green Card — was mooted when Defendants returned it
to her, leaving no triable issue on that subject. That leaves two final requests: (1) a declaration
5 The same is true of Plaintiff’s request for attorney’s fees on Count I. Although Plaintiff has not supported
that request with any law demonstrating fee shifting is appropriate in the mandamus or declaratory relief
context, see generally ECF No. [1]; ECF No. [32]; ECF No. [39], to the extent she believes she is entitled
to attorney’s fees on Count I, she can do so by way of motion, which the Court will decide in due course.
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that Defendants’ actions were unlawful and (2) “a writ of mandamus establishing her proper
admission status.” See ECF No. [39] at 3. As the Court understands the latter request, Plaintiff
wants an order requiring Defendants to deem her lawfully admitted to the United States retroactive
to May 9, 2024. See ECF No. [1] at 8. The Court will address each request in turn to determine
whether a triable issue exists.
Starting with Plaintiff’s request for a declaration that Defendants’ retention of her Green
Card under the facts of this case was unlawful, the Court first notes that Plaintiff cites no law
indicating a party can obtain declaratory relief by way of mandamus.6 See generally ECF No. [1];
ECF No. [32]; ECF No. [39]. And the Court’s own research suggests she cannot. That is because
mandamus allows courts to “compel an officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 (emphasis added); see also
Denson, 603 F.2d at 1146. 	A declaration about the lawfulness or unlawfulness of Defendants’
actions will not compel them to perform anything, let alone a duty owed to Plaintiff.
Even assuming mandamus could in some circumstances provide a path to declaratory
relief, however, that path has not been cleared here. “The availability of declaratory relief depends
on whether there is a live dispute between the parties,” Powell, 395 U.S. at 517–18, and a live
dispute requires “a substantial continuing controversy between parties having adverse legal
interests,” see Emory, 756 F.2d at 1552. 	For that reason, neither the “remote possibility that a
future injury may happen,” id., nor “[i]njury in the past,” Malowney, 193 F.3d at 1348, is sufficient
to satisfy the actual controversy requirement for declaratory relief.
Here, Plaintiff asks the Court for a declaration that Defendants’ actions were unlawful.
6 Although Plaintiff alleges the Court has jurisdiction over her lawsuit in part because it is “a civil action
seeking, in addition to other remedies, a declaratory judgment” under 28 U.S.C. §§ 2201–02, see ECF No.
[1] at 2, she does not assert an independent claim under the Declaratory Judgment Act, see generally ECF
No. [1]. But the Court’s analysis and conclusion would be the same even if she had.
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From the words of that request alone, it is clear Plaintiff wants a declaration about something that
occurred in the past, which the Eleventh Circuit has explained would be “nothing more than a
gratuitous comment without any force or effect.” See id. (quotation marks omitted). 	Because
Plaintiff “requests a declaration from this Court related to past conduct alone,” see Creedle, 349
F. Supp. 3d at 1292, she has not alleged “facts from which the continuation of the dispute may be
reasonably inferred,” see Emory, 756 F.2d at 1552, so “such declaratory relief is moot,” see
Creedle, 349 F. Supp. 3d at 1292. 	Accordingly, to the extent Plaintiff could even obtain
declaratory relief through mandamus, I respectfully RECOMMEND that Plaintiff’s request for
an expedited trial to obtain a declaration that Defendants’ actions were unlawful be DENIED AS
MOOT.7
Finally, as to Plaintiff’s request for “a writ of mandamus establishing her proper admission
status,” see ECF No. [39] at 3 — or, put differently, for an order requiring Defendants to deem her
lawfully admitted to the United States retroactive to May 9, 2024, see ECF No. [1] at 8 — that is
something the Court could, in theory, accomplish through mandamus, as it could compel
Defendants to update their records accordingly.8 See 28 U.S.C. § 1361; see also Denson, 603 F.2d
7 Though Plaintiff argues “nothing prevents” Defendants from seizing her Green Card again and her worry
about that “future harm” has chilled her constitutional right to travel, see ECF No. [39] at 2–3, she does not
ask the Court for a declaration that it would be unlawful for Defendants to confiscate her Green Card again
under similar circumstances. Even if she had asked for a declaration about Defendants’ future conduct,
however, the Court would recommend denying the request because that possibility is nothing more than a
“speculative threat of future injury.” See Emory, 756 F.2d at 1552. And “a perhaps or maybe chance is not
enough” to establish a live controversy. See Malowney, 193 F.3d at 1347 (quotation marks omitted).
8 But what the Court could do in theory is different than what the Court should do in practice. While the
Court was not tasked with deciding the merits of Plaintiff’s mandamus claim, it notes Plaintiff does not
appear to have demonstrated that her right to the writ is clear and indisputable. See Osechas Lopez, 649 F.
Supp. 3d at 1284. 	The decision to temporarily parole an alien into the country and require a deferred
inspection, including the duration of the deferral, is left to the discretion of DHS and its employees, see 8
U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 235.2(a), (c); Gonzalez, 86 F. Supp. 2d at 1176 & n.6, so there does not
seem to be a clear right to the relief sought or a clear duty to do the act in question, see Carter, 411 F.2d at
773; Cash, 327 F.3d at 1258. Particularly considering that “mandamus is an extraordinary remedy which
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at 1146. 	So the Court must decide whether Plaintiff’s entitlement to such a writ of mandamus
presents a triable issue. The Court finds that it does not.
First, nothing in the mandamus statute grants parties the right to a trial. 	See 28 U.S.C.
§ 1361. Second, as already explained, though mandamus “is a legal remedy, it is largely controlled
by equitable principles,” and “its issuance is a matter of judicial discretion.” Carter, 411 F.2d at
773; see also Whitehouse, 349 U.S. at 373; Denson, 603 F.2d at 1146; Osechas Lopez, 649 F.
Supp. 3d at 1284. 	And a matter of judicial discretion is not a triable issue. 	While courts have
recognized that litigants are entitled to a writ of mandamus to protect a clear constitutional or
statutory right to a jury trial, see Denson, 603 F.2d at 1147, they have not said that the request for
a writ of mandamus itself somehow creates a right to a trial.
Even reasoning by analogy to declaratory relief, which is similar in the sense that both
remedies involve a mix of law and equity, see Carter, 411 F.2d at 773; Arnold, 809 F.2d at 1523,
the most the Court could conclude is that a mandamus claim may preserve the right to a trial, see
Beacon Theatres, 359 U.S. at 504, not that it creates the right to a trial, see Sunshine Co. Food,
362 F. App’x at 4. In the declaratory relief context, courts look to “the substantive dimension of
the claim asserted” to determine whether a party has the right to a trial, not to the name the party
gives the cause of action. See Simler, 372 U.S. at 222–23; Arnold, 809 F.2d at 1523. Doing so
here reveals that no right to trial attaches, as the substantive dimension of Plaintiff’s mandamus
claim does not involve “traditional common-law issues,” see Simler, 372 U.S. at 223, but instead
involves agency discretion, see 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 235.2(a), (c); Gonzalez, 86
F. Supp. 2d at 1176 & n.6.
should be utilized only in the clearest and most compelling of cases.” Carter, 411 F.2d at 773; see also
Cash, 327 F.3d at 1257; Osechas Lopez, 649 F. Supp. 3d at 1284.
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For all those reasons, the Court concludes that Plaintiff’s request for a writ of mandamus
requiring Defendants to deem her lawfully admitted to the United States retroactive to May 9,
2024, see ECF No. [39] at 3; ECF No. [1] at 8, is not a triable issue.9 And because it is not, that
issue cannot support a conclusion that there is good cause for expediting a trial here. See 28 U.S.C.
§ 1657(a). Similarly, because Plaintiff has not explained how she has a clear right to a mandamus
order regarding her lawful admission status, her request for such an order cannot support a
conclusion that there is good cause for expediting any other proceedings short of trial either.
Accordingly, I also respectfully RECOMMEND that Plaintiff’s request to expedite trial and
proceedings be DENIED as it relates to her claim for a writ of mandamus requiring Defendants to
deem her lawfully admitted to the United States retroactive to May 9, 2024.
IV. 	CONCLUSION
For the reasons explained above, I respectfully RECOMMEND that the Motion, ECF No.
[32], be DENIED.
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
Joan A. Lenard, 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
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.
9 The Court notes Plaintiff does not point the Court to any law that would support concluding she has the
right to a trial on this issue. See generally ECF No. [32]; ECF No. [39]. Nor does she even request a trial
in her Complaint. See generally ECF No. [1].
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RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on January 30, 2026.
_____________________________________
MARTY FULGUEIRA ELFENBEIN
UNITED STATES MAGISTRATE JUDGE
cc: All Counsel of Record
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