1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ABSHIR HASAN AREYS, Case No.: 3:24-cv-02104-JES-DDL

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS 14 ALEJANDRO MAYORKAS, UR JADDOU, Director of USCIS, and [ECF No. 4] 15 CHRISTINE LUJAN, Director of the 16 Nebraska Service Center USCIS, 17 Defendants. 18 19

20 Before the Court is Plaintiff Abshir Hasan Areys’ (“Plaintiff”) motion for leave to 21 proceed in forma pauperis (“IFP”). ECF No. 4. For the reasons set forth below, the Court 22 GRANTS the motion to proceed IFP. 23 I. BACKGROUND 24 On May 7, 2023, Plaintiff filed a I-130, Petition for Alien Relative (“Petition”), with 25 U.S. Citizen and Immigration Services (“USCIS”), to help his wife and children immigrate 26 to the United States. ECF No. 1 at 5. Plaintiff alleges that, about a year after submitting the 27 Petition, Defendant asked for additional evidence to support his Petition. Id. At the time of 28 1 filing the complaint and 120 days since his request for evidence was received, Defendant 2 has not made any decisions on his Petition. Id. 3 On November 8, 2024, Plaintiff filed the instant complaint for writ of mandamus. 4 ECF No. 1. Plaintiff seeks relief under the Mandamus Act,

, and the 5 Administrative Procedures Act (“APA”),

, and asks the Court to order 6 Defendants Alejandro Mayorkas, Ur Jaddou, Director of USCIS, and Christine Lujan, 7 Director of the Nebraska Service Center USCIS (collectively, “Defendants”), to process 8 his Petition. 9 II. LEGAL STANDARD 10 A. Motion to Proceed in forma pauperis 11 Parties instituting a civil action must pay a filing fee of $405 unless they are granted 12 leave to proceed in forma pauperis (“IFP”) pursuant to

(a). A party need 13 not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335

(1948). “Nonetheless, a plaintiff seeking IFP status must allege poverty ‘with 15 some particularity, definiteness, and certainty.’” Escobedo v. Applebees,

, 16 1234 (9th Cir. 2015) (quoting United States v. McQuade,

(9th Cir. 17 1981)). To that end, “[a]n affidavit in support of an IFP application is sufficient where it 18 alleges that the affiant cannot pay the court costs and still afford the necessities of life.”

19 “But, the same even-handed care must be employed to assure that federal funds are not 20 squandered to underwrite, at public expense, either frivolous claims or the remonstrances 21 of a suitor who is financially able, in whole or in part, to pull his own oar.” Temple v. 22 Ellerthorp,

(D.R.I. 1984). 23 B. Screening under

(a) 24 The Court screens complaints brought by persons proceeding pro se and in forma 25 pauperis.

(e)(2). Plaintiff's complaint, or any portion thereof, is subject to 26 dismissal if it is frivolous or malicious, if it fails to state a claim upon which relief may be 27 granted, or if it seeks monetary relief from a defendant who is immune from such relief. 28

(e)(2)(B)(ii). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal,

(2009) (citing 5 Bell Atlantic Corp. v. Twombly,

(2007)). While a plaintiff's allegations 6 are taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal- 7 Mart Stores, Inc.,

(9th Cir. 2009) (internal quotation marks and citation 8 omitted). 9 To survive screening, Plaintiff's claims must be facially plausible, which requires 10 sufficient factual detail to allow the Court to reasonably infer that each named defendant is 11 liable for the misconduct alleged. Iqbal,

(quotation marks omitted); Moss 12 v. U.S. Secret Serv.,

(9th Cir. 2009). The sheer possibility that a 13 defendant acted unlawfully is not sufficient, and mere consistency with liability falls short 14 of satisfying the plausibility standard. Iqbal,

(quotation marks omitted); 15 Moss, 572 F.3d at 969. 16 III. DISCUSSION 17 A. Motion to Proceed in forma pauperis 18 Plaintiff states that he is an unemployed undergraduate student pursuing a Bachelor 19 of Science degree. ECF No. 4 at 5. He receives quarterly financial aid in the amount of 20 $750.00 and receives $400.00 a month in gifts. Id. at 1-2. Plaintiff has $0 cash, $2000.00 21 in his checking account, and $86.00 in savings. Id. at 3. Plaintiff incurs monthly expenses 22 including rent, utilities, food, clothing, laundry, insurance, and transportation totaling 23 $740.00. Id. at 4. In addition, Plaintiff states he supports his family who live outside of the 24 United States. 25 Upon review of Plaintiff’s IFP application, the Court finds that Plaintiff has 26 sufficiently shown that he is unable to pay the fees associated with commencing this 27 lawsuit. Therefore, the Court GRANTS Plaintiff’s motion to proceed in forma pauperis. 28 // 1 B. Screening under

(a) 2 A writ of mandamus is proper for the purpose of “compel[ing] an officer or 3 employee of the United States or any agency thereof to perform a duty owed to the 4 plaintiff.”

. “The extraordinary remedy of mandamus ... will issue only to 5 compel the performance of ‘a clear nondiscretionary duty.’” Pittston Coal Grp. v. Sebben, 6

(1988) (quoting Heckler v. Ringer,

(1984)). Plaintiff must 7 show that (1) his “claim is clear and certain; (2) the official's duty is non-discretionary, 8 ministerial, and so plainly prescribed as to be free from doubt; and (3) no other adequate 9 remedy is available.” Lucatero v. United States INS,

(9th Cir. 10 2003); Patel v. Reno,

(9th Cir. 1997). Importantly, a mandamus petition 11 compelling an agency to execute nondiscretionary duties seeks the same relief afforded by 12 the APA. R.T. Vanderbilt Co. v. Babbit,

, 1065 (9th Cir. 1997) (recognizing 13 “mandamus relief and relief under the APA are ‘in essence’ the same ...”). Therefore, courts 14 can analyze a mandamus claim through an APA framework if the APA provides an 15 adequate remedy. 16 Here, Plaintiff seeks the same outcome under both statutes: for this Court to compel 17 Defendants to process his I-130 petition, so that he can be reunited with his wife and 18 children who live abroad. ECF No. 1 at 5. Because Plaintiff's request under the Mandamus 19 Act and APA are the same, the Court finds that the latter provides an adequate remedy for 20 all of Plaintiff's claims and employs an APA analysis accordingly. The APA requires 21 administrative agencies to adjudicate “matter[s] presented to [them]” within a “reasonable 22 time.”

(b). When an agency fails to execute this duty, a “reviewing court 23 shall ... compel agency action unlawfully withheld or unreasonably delayed.”

706(1). To evaluate whether such a delay is unreasonable, the Court applies the six “TRAC” 25 factors, named after the balancing test, announced in Telecomms. Rsch. & Action Ctr. 26 (“TRAC”) v. F.C.C.,

, 79-80 (D.C. Cir. 1984). In re A Cmty. Voice,

779, 783-84 (9th Cir. 2017) (citation omitted). The TRAC factors are: 28 1 (1) the time agencies take to make decisions must be governed by a “rule of reason|”’;] (2) where Congress has provided a timetable or other indication of the speed 3 with which it expects the agency in the enabling statute, that statutory scheme A may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are 5 less tolerable when human health and welfare are at stake; 6 (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; 7 (5) the court should also take into account the nature and extent of the interests g prejudiced by the delay; and (6) the court need not “find any impropriety lurking behind agency lassitude 9 in order to hold that agency action is ‘unreasonably delayed.’” 10 |! Vaz v. Neal, 33 F.Ath 1131, 1137 (9th Cir. 2022) (quoting TRAC, 750 F.2d at 80). 1 The Court has conducted a preliminary review of Plaintiff's complaint. It is not clear 12 || from the face of the complaint whether the delay in adjudicating Plaintiff's I-130 petition 13 || was unreasonable under the factors set forth in TRAC. However, the Court preliminarily 14 || assesses that Plaintiff's complaint states a cognizable claim. Accordingly, the Court finds 15 |! that the complaint survives § 1915 screening. 16 IV. CONCLUSION 17 Accordingly, Plaintiff's Motion to Proceed in forma pauperis, ECF No. 4, is 18 || GRANTED. 19 IT IS SO ORDERED. 20 Dated: December 11, 2024 A ; 21 ~Snr~_—J,. 22 Honorable James E. Sunmons Jr. 23 United States District Judge 24 25 26 27 28