PLAINTIFF v. MULLIN (2026)

ORDER

The defendants’ motion to dismiss [50] is granted. The plaintiffs’ motion to file an overlength brief and for leave to file a sur-reply [59] is granted in part and denied in part. The Court grants that motion as to the request for leave to file an overlength response brief, but denies it as to the request for leave to file a sur-reply. Civil case terminated.

STATEMENT

This case is before the Court on Defendants Markwayne Mullin (United States Secretary of Homeland Security), David Venturella (Acting Director of United States Immigration and Customs Enforcement), Rodney Scott (Commissioner of United States Customs and Border Protection), and Joseph Edlow's (Director of United States Citizenship and Immigration Services (USCIS)) motion to dismiss Plaintiffs A–K's complaint. (R. 50.) The events described below are drawn from the complaint, (R. 9,) and are presumed true in resolving this motion. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The plaintiffs entered the United States without inspection after fleeing their home country “to escape life-threatening persecution.” (R. 9 ¶ 1.)² They each filed a Form I-589 application with USCIS affirmatively seeking asylum. (Id. ¶ 2.) USCIS later issued “virtually identical” Notices of Dismissal of each plaintiff's I-589 application. (Id. ¶¶ 3, 117.) The dismissals stated that USCIS lacked jurisdiction over the applications because the plaintiffs were placed in expedited removal proceedings. (Id. ¶¶ 2–3; R. 57 at 4.) While neither side attached the dismissal notices, the plaintiffs acknowledge that they have been placed in expedited removal. (See, e.g., R. 9 ¶ 1 (alleging “the placement of Plaintiffs under Expedited Removal”); R. 57 at 4 (noting that the dismissal notices stated the plaintiffs were “placed in expedited removal proceedings”).) Since USCIS issued those dismissals, the plaintiffs expressed fear of persecution if forced to return to their home country. (R. 9 ¶¶ 32, 41, 51, 62, 65, 74, 81, 88, 96, 103, 109, 115.) Because of that, they cannot be removed unless an immigration officer determines that they do not have a credible fear of persecution. 8 U.S.C. § 1225(b)(1)(B). As of the date of the amended complaint, some plaintiffs have completed credible fear interviews, whereas others have requested but have not yet completed one. (Id.) The plaintiffs do not allege that they are in custody, though they express a fear of being detained in the future. (Id. ¶ 121.)

The plaintiffs bring three claims. First, they allege that, under the Administrative Procedure Act, 5 U.S.C. § 706 (“APA”), USCIS’ dismissal of their asylum applications was arbitrary and capricious. (Id. ¶¶ 122–24.) Second, they argue that the dismissals violate 8 C.F.R. § 208.2(a), a regulation establishing USCIS’ “initial jurisdiction” over those applications. (Id. ¶¶ 125–28.) Third, invoking the Fifth Amendment's Due Process clause, they allege that they were deprived of sufficient notice or an opportunity to be heard. (Id. ¶¶ 129–31.) The plaintiffs seek a variety of declaratory and injunctive relief, namely requesting that the Court “cancel or stay expedited removal orders,” “compel USCIS to exercise jurisdiction over their I-589 asylum applications,” restrain any official or agency from removing them until USCIS adjudicates their applications, and require USCIS to conduct a credible fear interview for the plaintiffs who have not yet had one. (See, e.g., id. ¶¶ 5–6, 120.) The defendants move to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. Fed. R. Civ. P. 12(b)(1), 12(b)(6). The plaintiffs oppose. (R. 57.)³

A motion under Rule 12(b)(1) tests the Court's subject matter jurisdiction. Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015) (citations omitted). Where the jurisdictional challenge is facial, the Court employs the “same standard used to evaluate facial challenges to claims under Rule 12(b)(6).” Id. Accordingly, the Court accepts well-pleaded factual allegations as true and draws reasonable inferences in the plaintiff's favor. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 589 (7th Cir. 2014). The plaintiffs “bear[ ] the burden of establishing that the jurisdictional requirements have been met.” Id.

Analysis

The defendants first argue that the Court lacks jurisdiction over the plaintiffs’ claims. (R. 55 at 7–11); 8 U.S.C. § 1252(a)(2)(A). Absent some exceptions,

[N]o court shall have jurisdiction to review ․ (i) any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) ․ (ii) a decision by the Attorney General to invoke the provisions of such section, (iii) the application of such section to individual aliens, including the determination made under section 1225(b)(1)(B) of this title, or (iv) ․ procedures and policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of this title.

Id. Because they have not filed habeas corpus petitions, the plaintiffs do not argue that any exception applies.⁴ Instead, they argue that their claims do not fit into § 1252(a)(2)(A)’s categories. (R. 57 at 7.) They challenge events “subsequent and independent” from the expedited removal process: USCIS’ dismissal of their I-589 applications, termination of their affirmative asylum process, failure to “continue adjudicative review” of their applications, and other “procedural injuries distinct from direct review of expedited removal determinations.” (See id. at 1–7.)

Two Seventh Circuit cases involving § 1252(a)(2)(A) are pertinent in assessing the plaintiffs’ argument that they challenge only USCIS’ dismissals, not the expedited removal process or the workings of § 1225(b). In Dubey v. Dep't of Homeland Security, the Seventh Circuit held that a plaintiff could not evade the jurisdictional bar by challenging events or justifications underlying an expedited removal order. 154 F.4th 534, 536–37 (7th Cir. 2025). Similarly, in Odei v. U.S. Dep't of Homeland Security, the Seventh Circuit held that “in deciding whether § 1252(a)(2)(A)’s jurisdictional bar applies, the specific nature of a claimant's statutory challenge simply doesn't matter.” 937 F.3d 1092, 1095 (7th Cir. 2019). Together, the cases reflect that while the plaintiffs may characterize their claims how they please, if the claims necessarily challenge substance within § 1252(a)(2)(A), the Court lacks jurisdiction.

The parties do not cite a case from or within the Seventh Circuit involving claims in a posture like those brought by these plaintiffs. However, several out-of-circuit district courts have decided cases under similar facts and postures. In S.W. v. Noem, a Kenyan citizen filed an I-589 asylum application that USCIS dismissed because he was placed in expedited removal. No. 25 CV 9264, 2025 WL 3754067, at *1–2 (S.D.N.Y. Dec. 29, 2025). He then sued under the APA and the due process clause, arguing that the dismissal of his asylum application violated both. Id. at *3. There, the “central allegation of the Complaint is that USCIS wrongfully dismissed S.W.’s affirmative asylum application on the grounds that he had been placed in expedited removal proceedings,” which required review of “the validity of defendants’ invocation and application of expedited removal proceedings to S.W.” Id. at *4–6. Because that ran headlong into § 1252(a)(2)(A)’s jurisdictional bar, the court dismissed the claims for lack of jurisdiction. Id. at *6–7. The plaintiff in Arora v. U.S. Dep't of Homeland Security similarly had his I-589 application dismissed because he was notified that he was subject to expedited removal. No. 25 CV 7064, 2025 WL 3641586, at *1 (N.D. Cal. Dec. 16, 2025). That court dismissed the plaintiff's claims for lack of jurisdiction because at their core, the claims “challenge[d] Defendants’ authority to subject him to the expedited removal process.” Id. So, too, in Singh v. U.S. Dep't of Homeland Security, No. 25 CV 8180, 2025 WL 3241157 (N.D. Cal. Nov. 20, 2025).

With the Seventh Circuit's § 1252(a)(2)(A) decisions in mind, the Court finds the reasoning of these district courts persuasive and adopts it. Here, the plaintiffs’ first two claims allege that USCIS’ conduct was arbitrary and capricious and contrary to pertinent regulation because USCIS dismissed the plaintiffs’ asylum applications instead of adjudicating them. (R. 9 ¶¶ 123–28.) Their due process claim alleges that those dismissals forced them into “prolonged procedural limbo ․ without a full and fair hearing ․ or a genuine opportunity to present their asylum claims.” (Id. ¶ 131.) As in the cases discussed above, the plaintiffs acknowledge that USCIS dismissed their applications because the plaintiffs were “placed in expedited removal proceedings.” (R. 57 at 4; see also R. 9 ¶ 1.) Because that decision forms the basis of USCIS’ dismissal of the plaintiffs’ affirmative asylum applications, the plaintiffs’ claims necessitate resolution of whether USCIS properly placed them in expedited removal and an inquiry into the application and implementation of that decision to these plaintiffs. The Court lacks jurisdiction to do so. 8 U.S.C. § 1252(a)(2)(A).

The plaintiffs’ characterization of their claims as challenges to “unlawful agency conduct antecedent to [ ] discretionary decisions” also fails. (R. 57 at 14.) The Seventh Circuit found this type of argument barred by § 1252(a)(2)(A). Dubey, 154 F.4th at 536–37 (holding that a challenge to events “antecedent” to an expedited removal order is barred). The plaintiffs also point to an “absence of any functioning adjudicative forum following” the dismissal of their I-589 applications and other “procedural injuries.” (R. 57 at 1–5.) First, the Seventh Circuit has found a constitutional challenge to the procedures and manner used to invoke expedited removal to be barred by § 1252(a)(2)(A). See Khan v. Holder, 608 F.3d 325, 329–30 (7th Cir. 2010). Further, the alternative forum here is the credible fear process, which is underway for some plaintiffs and requested by others. It is the decision to invoke expedited removal that placed the plaintiffs in the alleged “procedural limbo,” and the Court cannot intervene in that decision. See, e.g., S.W., 2025 WL 3754067, at *7 (dismissing identical due process challenge for lack of jurisdiction). And because the credible fear process is part of the “procedures and policies” implementing expedited removal, the Court lacks authority to dictate how it proceeds. The plaintiffs cite no authority, binding or persuasive, supporting their position that § 1252(a)(2)(A) is inapplicable to their claims. Because at their core these claims involve collateral attacks on the workings of the expedited removal process, the Court lacks jurisdiction over them.

Examining the relief the plaintiffs seek reinforces that conclusion. The plaintiffs ask the Court to, among other things, “cancel or stay expedited removal orders,” “compel USCIS to exercise jurisdiction over” their I-589 applications, “[d]eclare that USCIS retains jurisdiction over” those applications, restrain any government official or agency from taking the plaintiffs into custody, and more. (R. 9 at 20–21; see also id. ¶ 5.) But because USCIS invoked expedited removal as the basis for the dismissals, granting such relief would necessarily require the Court to decide that the plaintiffs are not properly subject to expedited removal. That is barred by § 1252(a)(2)(A). While USCIS is vested “initial jurisdiction” over asylum applications, its jurisdiction is displaced upon commencement of expedited removal proceedings. See 8 U.S.C. § 1225(b)(1)(B); 8 C.F.R. §§ 208.2(a), 235.3(b)(4); see also M.T. v. Edlow, No. 25 CV 2431, 2025 WL 3760738, at *3 (D. Md. Dec. 30, 2025) (“In summary, once the government commences expedited removal proceedings against an individual, USCIS no longer has the authority to adjudicate that individual's separate, affirmative application for asylum.”). To reinstate USCIS jurisdiction over the applications and compel USCIS to adjudicate the merits of them would require the Court to undo the decision to place the plaintiffs in expedited removal. This means that the Court cannot grant the plaintiffs’ the relief they seek without running into § 1252(a)(2)(A).

Further, the Court lacks jurisdiction to enjoin future enforcement action, as that may interfere with at least the “implementation or operation of an order of removal” or the “procedures and policies” related to expedited removal proceedings. See 8 U.S.C. §§ 1252(a)(2)(A)(i), (iv). Moreover, federal courts lack jurisdiction over “any cause or claim by or on behalf of any” individual “arising from the decision or action ․ to commence proceedings, adjudicate cases, or execute removal orders.” Id. § 1252(g). An order enjoining future arrest, dictating the timing of some plaintiffs’ forthcoming credible fear interviews, or other enforcement action would arise from the invocation of expedited removal and is therefore barred. See also M.T., 2025 WL 3760738, at *3 (dismissing claims similar to these plaintiffs’ as independently barred by § 1252(g)).

A few loose ends remain. First, the plaintiffs allege that USCIS has a “nationwide and systemic policy” of improperly dismissing I-589 applications “in violation of statutory, regulatory, and constitutional protections.” (R. 9 ¶ 119.) The defendants argue that Congress has channeled this kind of challenge to expedited removal practices to the United States District Court for the District of Columbia. (R. 55 at 11–12); 8 U.S.C. § 1252(e)(3)(A). The plaintiffs do not respond. The Court agrees that this kind of challenge must be brought in that court. 8 U.S.C. § 1252(e)(3)(A). Second, while the plaintiffs’ complaint cites the Mandamus Act one time, 28 U.S.C. § 1361, (R. 9 ¶ 9,) the plaintiffs do not argue it as a basis for jurisdiction in their response. In any event, mandamus actions must involve “a clear nondiscretionary duty,” and the plaintiffs do not explain what that duty is. Cossio v. Air Force Ct. of Crim. Appeals, 129 F.4th 1013, 1021 (7th Cir. 2025) (quoted source omitted). USCIS owes no such duty to adjudicate the plaintiffs’ I-589 applications, as it lacks jurisdiction over the applications given the plaintiffs are in expedited removal proceedings. Further, the plaintiffs allege that they are at various stages of the credible fear process, which suggests that the duty to carry out that process is underway.

For the reasons stated above, the Court grants the defendants’ motion to dismiss under Rule 12(b)(1). Because the Court lacks subject matter jurisdiction, it need not reach the rest of the defendants’ arguments in favor of dismissal. Last, the Court denies the plaintiffs’ motion, (R. 59,) as to their request to file a sur-reply. The plaintiffs request an opportunity to address the defendants’ motion to strike their overlength response brief, respond to arguments that the plaintiffs failed to rebut in their response, and clarify “post-complaint procedural developments.” (Id.) Because the Court is not striking the overlength brief and the plaintiffs had the opportunity to address the other arguments in their response but did not, the Court denies their request for leave to file a sur-reply.

FOOTNOTES

2.   For ECF filings, the Court cites to the page number(s) in the document's ECF header unless citing to a particular paragraph or other page designation is more appropriate.

3.   The plaintiffs filed a 20-page brief without prior Court approval, which violates Local Rule 7.1. However, the Court grants the plaintiffs’ motion for leave nunc pro tunc to file an oversized brief and considers the plaintiffs’ brief in full in resolving this motion. (See R. 59.)

4.   Notably, the plaintiffs do not invoke an exception that allows a court to inquire “whether such an order [of expedited removal] in fact was issued.” 8 U.S.C. 1252(e)(5). Given this, the plaintiffs’ allegations, and their description of the dismissal notices, the Court does not understand the plaintiffs to challenge whether USCIS issued expedited removal orders.

JEREMY C. DANIEL, United States District Judge