Unreported / Non-Citable
Background
Artem Latushkin, proceeding pro se, filed an Administrative Procedure Act (APA) action in the United States District Court for the Central District of California alleging unreasonable delay by U.S. Citizenship and Immigration Services (USCIS) in adjudicating his asylum application. The district court, presided over by Judge Fernando M. Olguin, dismissed the complaint without prejudice under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Latushkin appealed the dismissal to the Ninth Circuit, which had jurisdiction under 28 U.S.C. § 1291. The appellate panel determined the case was suitable for decision without oral argument.
The Court’s Holding
The Ninth Circuit affirmed the district court’s dismissal. The court held that Latushkin failed to allege sufficient facts to show that the delay in adjudicating his asylum application was unreasonable under the factors set forth in Vaz v. Neal, 33 F.4th 1131 (9th Cir. 2022). The court further held that the mandamus claim was properly dismissed because it sought the same relief as the APA claim, and the court may elect to analyze only the APA claim. Finally, the court held that the district court did not abuse its discretion in dismissing the complaint without leave to amend because amendment would have been futile. The court declined to consider matters not specifically raised in the opening brief or arguments raised for the first time on appeal.
Key Takeaways
- To survive a motion to dismiss an APA unreasonable delay claim, a plaintiff must allege sufficient factual matter to make the claim plausible on its face under the Vaz factors.
- A mandamus claim seeking the same relief as an APA claim may be dismissed without separate analysis because the relief is essentially identical.
- A district court may dismiss a pro se complaint without leave to amend if it determines that amendment would be futile.
- The Ninth Circuit will not consider arguments or allegations raised for the first time on appeal or not distinctly argued in the opening brief.
- The disposition is a non-precedential memorandum not appropriate for publication under Ninth Circuit Rule 36-3.
Why It Matters
This memorandum disposition reinforces the pleading standards for APA unreasonable delay claims in immigration cases, requiring plaintiffs to provide specific factual allegations rather than conclusory statements to demonstrate that agency delay is unreasonable under the TRAC/Vaz factors. It confirms that district courts have discretion to deny leave to amend when amendment would be futile, even for pro se litigants. The decision also illustrates the court’s practice of consolidating APA and mandamus claims when they seek identical relief, streamlining judicial review of agency inaction. Because the disposition is unpublished, practitioners should treat it as an application of existing pleading rules rather than new precedent. An unreasonable-delay complaint must supply facts that permit the court to assess the governing factors; relabeling the same requested relief as mandamus does not repair an inadequately pleaded APA claim. The panel also upheld denial of leave to amend on futility grounds. That aspect distinguishes the case from decisions requiring another pleading opportunity for a self-represented litigant. The memorandum does not identify additional facts that could have changed the unreasonable-delay analysis, and it declined to consider theories not distinctly presented in the opening brief or raised for the first time on appeal. Appellate briefing therefore could not substitute for allegations missing below.