Desai v. U.S. Citizenship & Immigration Servs.

SANGHARAJ DESAI, Plaintiff, v. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Civil Action No. 20-1005 (CKK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 22, 2021

MEMORANDUM OPINION

Plaintiff Sangharaj Desai brings this action against the U.S. Citizenship & Immigration Services ("USCIS"), as well as officials of USCIS, the U.S. Department of Justice ("DOJ"), and the Federal Bureau of Investigation ("FBI") (together, "Defendants" or the "Government"), claiming that the Government's delay in adjudicating his petition for an immigrant investor visa is unreasonable. Plaintiff seeks an order under the Administrative Procedure Act ("APA") and the Mandamus Act compelling the Government to reach a decision on his visa petition within 14 days.

Before the Court is the Government's [13] Motion to Dismiss and Plaintiff's [14] Cross-Motion for Summary Judgment. Upon review of the pleadings,¹ the relevant legal authority, and the record as a whole, the Court finds that Plaintiff's Amended Complaint fails to allege a plausibleclaim of unreasonable delay. Accordingly, the Court shall grant the Government's Motion to Dismiss. Because the Court concludes that dismissal of the Amended Complaint is appropriate, it does not reach the question of summary judgment.

I. BACKGROUND

Plaintiff Sangharaj Desai is an Indian national who filed with USCIS a petition for a visa under the "EB-5" Immigrant Investor Program on May 7, 2019. Am. Compl. ¶ 30, ECF No. 12. Plaintiff is awaiting USCIS's adjudication of his petition. Because some context about the EB-5 program is helpful to understand Plaintiff's claims, the Court shall first provide background information about that program before discussing the facts pertinent to resolving the pending motions.²

A. The EB-5 Immigrant Investor Program

The Immigration and Nationality Act ("INA"), U.S.C. §§ 1101 et seq., authorizes the issuance of so-called "EB-5" visas to immigrants who have "invested" capital in a "new commercial enterprise" that "will benefit the United States economy and create full-time employment" for ten citizens or non-citizens with work authorization. 8 U.S.C. § 1153(b)(5)(A)(i)-(ii). At the time relevant to Plaintiff's Complaint, the applicant must have also made a direct investment of at least $1,000,000 or an investment of $500,000 into a "targetedemployment area." § 1153(b)(5)(C)(ii).³ A "targeted employment area" is a "rural area or an area which has experienced high unemployment." § 1153(b)(5)(B)(ii); see also 8 C.F.R. § 204.6(e) ("Targeted employment area means an area that, at the time of investment, is a rural area or is designated as an area that has experienced unemployment of at least 150 percent of the national average rate.").

USCIS allows certain "economic units" to apply for status as a "targeted employment area" and designation as a "Regional Center" through the Immigrant Investor Pilot Program. See Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act of 1993, Pub. L. No. 102-395, § 610(a), 106 Stat. 1828, 1874 (Oct. 6, 1992); 8 C.F.R. § 204.6(m). To become a "Regional Center," an economic unit must promote economic growth through "increased export sales, improved regional productivity, job creation, or increased domestic capital investment." 8 C.F.R. § 204.6(m)(3)(i). A foreign investor's investment in an approved Regional Center satisfies the EB-5 "employment-creation" requirement by creating jobs indirectly. Id. §§ 204.6(j)(4)(iii), 204.6(m)(7)(ii); see also Interim Rule, Immigrant Investor Pilot Program, 58 Fed. Reg. 44,606, 44,607 (Aug. 24, 1993).

To become a lawful permanent resident under the EB-5 Program, an applicant must first file with USCIS a petition for classification as an EB-5 investor, using a "Form I-526." See 8 C.F.R. § 204.6(a), (c). Once the Form I-526 is approved by USCIS, the applicant must still wait for a visa to become available, which, the D.C. Circuit has observed, "may take years," MirrorLake Village, LLC v. Wolf, 971 F.3d 373, 375 (D.C. Cir. 2020); see also Nohria v. Renaud, No. 20-cv-2086-BAH, 2021 WL 950511, at *2 (D.D.C. Mar. 14, 2021) ("Successful adjudication and approval of an I-526 petition makes a petitioner eligible for a visa, but does not automatically provide a visa."(emphasis added)).

Because the INA limits the total number of visas available each fiscal year and allots percentages of visas by country and type of visa,⁴ when the demand for visas is higher than the supply, visa petitions are queued based on their "priority date"—typically the date the visa petition was filed with USCIS. 8 U.S.C. § 1153(e); 8 C.F.R. § 204.6(d). A petitioner then becomes eligible for a visa when the "priority date" is listed for the applicant's country and visa category in the State Department's monthly Visa Bulletin. See Am. Compl. ¶¶ 23-34.

USCIS historically processed I-526 Forms according to a "first in, first-out" method. See Am. Compl. ¶ 26; Defs.' Mot. at 5.⁵ However, effective March 2020, USCIS adopted a new policy to prioritize petitions from nationals of countries "where visas are immediately available, or soon available" based on the per-country limits. See Am. Compl. ¶ 26; Defs.' Mot. at 5-6. As applied to the EB-5 investor program, this process allows the USCIS Immigrant Investor Program Office ("IPO")—which handles investor program applications—to "designate particular petitions to prioritize for processing by factoring in the availability of EB-5 immigrant visas and determining whether a visa is available or soon to be available to a petitioner." Nohria, 2021 WL 950511, at *3. The IPO makes this determination by taking into account the petitioner's country of birth andthe availability of visas for that country (as set out in the Visa Bulletin). Id. Once a petition is designated for priority, it goes through the "first-in, first-out" process among other similarly-designated visas. Id. Plaintiff also provides information in his Amended Complaint about the "mandatory criminal and national security background checks" conducted by the FBI of any individual who submits a visa petition to USCIS. See Am. Compl. ¶¶ 39-44. According to Plaintiff, as of 2009 (more than 10 years ago), the FBI indicated that most background check requests associated with visa petitions were completed within, at most, three months. Id. ¶ 44. Once a Form I-526 is approved by USCIS, it is sent to the National Visa Center for processing.⁶

B. Factual Background

Plaintiff filed a Form I-526 with USCIS on May 7, 2019, based on his investment of $500,000 in a regional center. Am. Compl. ¶ 30, Ex. E at 5-6. As of the date of his Amended Complaint, Plaintiff had been waiting more than one year for a decision by USCIS on his I-526 petition. Id. ¶ 35. Plaintiff contends that under the "Visa Availability" approach adopted by USCIS, he should be given priority processing because his assigned "priority date" is "current" based on the State Department Visa Bulletin. Id. ¶¶ 67, 76.

Plaintiff's four-count complaint includes claims under the APA and Mandamus Act. Plaintiff claims that USCIS's delay in adjudicating his I-526 petition and the FBI's delay in completing the requisite background check are "unreasonable" under the APA. See Am. Compl. ¶¶ 57-69; 81-91 (Counts I & III). He also seeks mandamus relief against officials of USCIS, DOJ,and FBI to compel them to "perform their dut[ies]" related to the adjudication of his petition and completion of the associated background check. Id. ¶¶ 70-80; 92-101 (Counts II & IV). The Government moved to dismiss Plaintiff's Amended Complaint, arguing that it fails to state a claim of "unreasonable" delay. See Defs.' Mot. at 1. Plaintiff cross-moved for summary judgment, contending that the "undisputed facts" demonstrate that he is entitled to judgment as a matter of law that the Government's delay in adjudicating his visa petition is "unreasonable." See Pl.'s Cross-Mot. & Opp'n at 1.

II. LEGAL STANDARD

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint is not sufficient if it "tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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." Iqbal, 556 U.S. at 678. "In evaluating a motion to dismiss, the Court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of plaintiff." Nat'l Postal Prof'l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 27 (D.D.C. 2006).

When considering a Rule 12(b)(6) motion, courts may consider "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint" or "documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss." Wardv. D.C. Dep't of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted) (quoting Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002); Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). The court may also consider documents in the public record of which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).

III. DISCUSSION

The Government argues that Plaintiff's Amended Complaint should be dismissed pursuant to Federal Rule of...