United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
filed a Complaint for Writ of Mandamus on February 16, 2017.
(Filing No. 1.) He has been granted leave to proceed in forma
pauperis. (Filing No. 5.) The court now conducts an initial
review of Plaintiff's Complaint to determine whether
summary dismissal is appropriate under 28 U.S.C. §
SUMMARY OF COMPLAINT
December 23, 2016, Plaintiff filed an I-765 Application for
Employment Authorization with the U.S. Citizenship and
Immigration Services (“USCIS”) office in Lincoln,
Nebraska. (Filing No. 1 at CM/ECF pp. 4, 6.) He alleges that
he filed the employment application while his asylum
application was pending. (Id.) Plaintiff alleges
that USCIS failed to grant or deny his employment
authorization application within 30 days of filing such
application in violation of the relevant federal regulation.
(Id.) He initially sought a writ of mandamus to
compel USCIS to consider his employment authorization
application. (Id.) However, Plaintiff has since
filed additional documentation showing that he received a
work permit on February 28, 2017, and that he declined a job
offer from Hy-Vee on January 31st because he did not have a
work permit. (Filing No. 6.) On March 1, 2017, Plaintiff
moved his family to a homeless shelter. (Id.)
Plaintiff now seeks damages to reimburse him for lost income
and for “moral injury” caused by moving his
family to a homeless shelter and “living on low
funds.” (Id.) Plaintiff names the United
States Department of Homeland Security (“DHS”),
USCIS, USCIS Nebraska Processing (Service) Center, John F.
Kelly (Secretary of DHS), Lori Scialabba (Acting Director of
USCIS), and Donald Neufeld (Associate Director of Service
Center Operations) as defendants in his Complaint. (Filing
No. 1; Filing No. 6.)
APPLICABLE STANDARDS OF REVIEW
court is required to review in forma pauperis complaints to
determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e). The court must dismiss
a complaint or any portion of it that states a frivolous or
malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
plaintiffs must set forth enough factual allegations to
“nudge their claims across the line from conceivable
to plausible, ” or “their complaint must be
dismissed.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 569-70 (2007); see also Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (“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.”).
essential function of a complaint under the Federal Rules of
Civil Procedure is to give the opposing party ‘fair
notice of the nature and basis or grounds for a claim, and a
general indication of the type of litigation
involved.'” Topchian v. JPMorgan Chase Bank,
N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting
Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir.
1999)). However, “[a] pro se complaint must be
liberally construed, and pro se litigants are held to a
lesser pleading standard than other parties.”
Topchian, 760 F.3d at 849 (internal quotation marks
and citations omitted).
court finds Plaintiff's request to compel USCIS to
consider his employment authorization application moot.
See similarly, In re Davis, 10 Fed.Appx. 69
(4th Cir. 2001) (petition for a writ of mandamus alleging
undue delay in acting upon petitioner's motion was moot
because the district court entered a final order denying
relief). However, the court finds that Plaintiff's claims
for monetary damages are not moot. See, e.g.,
Watts v. Brewer, 588 F.2d 646, 648 (8th Cir. 1978)
(holding the plaintiff's release from prison
“mooted his claims for declaratory and injunctive
relief but [did] not moot[ ] his claims for monetary
misconstrues the applicable law. An individual seeking asylum
shall submit an employment authorization application
“no earlier than 150 days after the date on which a
complete asylum application submitted in accordance with
§§ 208.3 and 208.4 has been received.” 8
C.F.R. § 208.7(a)(1). If an asylum application is not
denied, the USCIS “shall have 30 days from the date of
filing of the request employment authorization to grant or
deny that application, except that no employment
authorization shall be issued to an asylum applicant prior to
the expiration of the 180-day period following the filing of
the asylum application . . . .” Id.
(emphasis added); see also 8 U.S.C.A. §
1158(d)(2) (“An applicant for asylum is not entitled to
employment authorization, but such authorization may be
provided under regulation by the Attorney General. An
applicant who is not otherwise eligible for employment
authorization shall not be granted such authorization prior
to 180 days after the date of filing of the application for
asylum.”). Accordingly, USCIS could not issue Plaintiff
a work permit 30 days from the date of his employment
authorization application unless 180 days passed
after the date that Plaintiff filed his asylum application.
The court does not know when Plaintiff filed his asylum
application nor if it was filed in accordance with
§§ 208.3 and 208.4 nor if Plaintiff caused or
requested any delays in the process. See §
208.7(a)(2) (setting forth when time periods begin and
reasons for extension).
Plaintiff's claims for monetary damages fail for two
primary reasons. First, the “Asylum procedure”
under which Plaintiff sought employment authorization does
not create a private right of action. See 8 U.S.C.A.
§ 1158(d)(7). The question whether Congress intended to
create a private right of action is “definitely
answered in the negative where a statute by its terms grants
no private rights to any identifiable class.”
Gonzaga Univ. v. Doe, 536 U.S. 273, 283-84 (2002).
Second, Plaintiff's claims are barred by sovereign
immunity because he cannot sue an agency of the United
States. See FDIC v. Meyer, 510 U.S. 471,
486 (1994) (stating Bivens action for damages is not
actionable directly against agencies of the United
THEREFORE ORDERED that:
action is ...