Hala v. Chief, Immigrant Inv'r Program office, U.S. Citizenship & Immigration Servs.

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WALID ABOU HALA ABOU HALA and KAREN LINDSAY EL KANTAR MENDEZ, Plaintiffs, v. CHIEF, IMMIGRANT INVESTOR PROGRAM OFFICE, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, ATTORNEY GENERAL OF THE UNITED STATES and DIRECTOR, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants.

No. 6:23-cv-1541-PGB-DCI

United States District Court, M.D. Florida, Orlando Division

September 13, 2024

ORDER

PAUL G. BYRON UNITED STATES DISTRICT JUDGE

This cause is before the Court upon Defendants Alissa Emmel as the Chief of the Immigrant Investor Program Office, U.S Citizenship and Immigration Services (“USCIS”); Alejandro Mayorkas as the Secretary of the U.S. Department of Homeland Security Merrick Garland as the Attorney General of the United States and Ur Mendoza Jaddou as the Director of USCIS' (collectively, “Defendants”) Motion to Dismiss Plaintiffs' Complaint. (Doc. 18 (the “Motion”)). Plaintiffs Walid Abou Hala Abou Hala and Karen Lindsay El Kantar Mendez (“Plaintiffs”) filed a response in opposition (Doc. 20 (the “Response”)), and the matter is now ripe for review. Upon consideration, the Motion is due to be granted in part and denied in part.

I. BACKGROUND^[1]

Plaintiffs, a married couple, are Venezuelan nationals who temporarily reside in Orlando, Florida. (Doc. 1-2, pp. 5, 12, 14). In pursuit of permanent residency in the United States (“U.S.”), Plaintiffs invested $500,000 in the U.S. government's EB-5 visa program (“EB-5 program”). (Doc. 1, ¶ 20).

Pursuant to the Immigration and Nationality Act (“INA”), the EB-5 program “makes visas available to qualified immigrant investors who will contribute to the economic growth of the [U.S.] by investing in U.S. businesses and creating jobs for U.S. workers.” (Id. ¶ 25 (citing INA § 203(b)(5))). To become an EB-5 immigrant investor (“immigrant investor”), one must “commit lawfully obtained funds to an investment project in the U.S.” (Id. ¶ 26). Upon investing, an immigrant investor may submit a Form I-526 EB-5 petition, Immigrant Petition for Alien Entrepreneur (“I-526 petition”), to USCIS. (Id. ¶¶ 1, 27). Once USCIS approves the I-526 petition, an immigrant investor “may be eligible to apply for an immigrant visa to enter the U.S. and begin their lawful permanent residency.” (Id. ¶ 27). Alternatively, if an immigrant investor is already present in the U.S. like Plaintiffs here he or she can submit a Form I-485, Application to Register Permanent Residence or Adjust Status (“I-485 application(s)”), to USCIS. (Id. ¶ 3; Doc. 1-2, p. 12; Doc. 18, p. 4). If USCIS approves the I-485 application, an immigrant investor receives a conditional permanent resident green card that is valid for two years. (Doc. 1, ¶ 28). Thereafter, to obtain an unrestricted permanent resident green card which is valid for ten years an immigrant investor must file a Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. (Id. ¶ 29; Doc. 18, p. 4).

Plaintiffs filed their I-526 petition with USCIS on November 14, 2019. (Doc. 1, ¶ 2). Plaintiffs then filed their I-485 applications on August 5, 2022.^[2] (Id. ¶ 3). Forty-five months^[3] after filing their I-526 petition, on August 11, 2023, Plaintiffs initiated this action against Defendants. (Doc. 1 (the “Complaint”)). In the Complaint, Plaintiffs allege three causes of action related to USCIS' “unreasonable delay” in adjudicating Plaintiffs' I-526 petition and I-485 applications. (Id. ¶¶ 3352).

In Count I, Plaintiffs allege Defendants violated the Administrative Procedure Act (“APA”) 5 U.S.C. §§ 555(b), 551(13), 702, 706(1) for failing to adjudicate Plaintiffs' I-526 petition and I-485 applications “within a reasonable time.” (Id. ¶¶ 33-41). In Count II, Plaintiffs allege Defendants violated the APA, 5 U.S.C. § 706(2)(A), through their “arbitrary, capricious, ultra vires, and otherwise unlawful acts of refusal to timely adjudicate Plaintiffs' I-526 petition and I-485 applications.” (Id. ¶¶ 42-44). In Count III, Plaintiffs allege a claim for mandamus relief under 28 U.S.C. § 1361, requesting that the Court issue an Order compelling Defendants to adjudicate Plaintiffs' I-526 petition within fourteen days and to adjudicate Plaintiffs' I-485 applications within one hundred and twenty days. (Id. ¶¶ 45-52). Finally, Plaintiffs vaguely mention declaratory relief in their request for the Court to declare Defendants' delays as “unreasonable and in violation of the APA and the INA.” (Id. at p. 13).

Defendants filed the instant Motion, and Plaintiffs filed a response in opposition. (Docs. 18, 20). The matter is thus ripe for review.

II. STANDARD OF REVIEW

A. Subject Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a party may challenge subject matter jurisdiction on facial or factual grounds. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). For facial challenges as here, the court looks to the face of the complaint and determines whether the plaintiff sufficiently alleges standing. Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys. Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008). In doing so, the court is limited to the complaint's allegations and exhibits, which the court must accept as true. Id. at 1232. Factual challenges, in contrast, allow a court “to consider extrinsic evidence such as deposition testimony and affidavits.” Carmichael, 572 F.3d at 1279.

B. Failure to State a Claim

A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Thus, to survive a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is plausible on its face when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The court must view the complaint in the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint in the plaintiff's favor. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam). However, though a complaint need not contain detailed factual allegations, pleading mere legal conclusions, or “a formulaic recitation of the elements of a cause of action,” is not enough to satisfy the plausibility standard. Twombly, 550 U.S. at 555. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations,” and the court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 679; Papasan v. Allain, 478 U.S. 265, 286 (1986).

In sum, the court must: reject conclusory allegations, bald legal assertions, and formulaic recitations of the elements of a claim; accept well-pled factual allegations as true; and view well-pled allegations in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 678-79.

III. DISCUSSION

In the Motion, Defendants first argue that Plaintiffs' mandamus claim under Count III should be dismissed under both Rule 12(b)(1) and Rule 12(b)(6). (Doc. 18, pp. 13-18). Defendants then contend that Plaintiffs' APA claims under Counts I and II should be dismissed pursuant to Rule 12(b)(6). (Id. at pp. 18-23). The Court addresses Plaintiffs' claims in the same order.

A. Count III: Mandamus Relief Claim

As an initial matter, the Court clarifies Plaintiffs' requested mandamus relief. Plaintiffs correctly assert that 8 C.F.R. § 103.2(b)(19) requires Defendants to “produce a written decision on all petitions and applications submitted to it.” (Doc. 20, p. 13; see Doc. 1, ¶ 47). However, with respect to Count III, Plaintiffs do not allege that Defendants refused to adjudicate their petition and applications. (See Doc. 1, ¶¶ 45-52; see also Doc. 1-2, pp. 3, 8-9 (providing USCIS' notices of receipt informing Plaintiffs that their I-526 petition is “in process” and that USCIS is “currently processing” the I-485 applications)). Rather, “Plaintiffs challenge only the reasonableness of Defendants' delay or inaction.” (Doc. 1, ¶ 49). Moreover, Plaintiffs request that the Court compel Defendants' adjudication of the I-526 petition within fourteen days and of the I-485 applications within one hundred and twenty days. (Doc. 1, p. 13). Accordingly, Plaintiffs' requested relief is that the Court compel Defendants to adjudicate Plaintiffs' I-526 petition and I-485 applications within a certain time frame. (Id.); see also Osechas Lopez v. Mayorkas, 649 F.Supp.3d 1278, 1285 (S.D. Fla. 2023) (finding that the question is not whether there is a non-discretionary duty to adjudicate, “rather, the Court must determine whether Defendants have a non-discretionary duty to act to adjudicate Plaintiff's I-526 petition in a certain time frame, whether general, reasonable, or even the more specific period of ‘180 days.'” (emphasis in original) (citing 8 U.S.C. § 1571(b))).

Under the Mandamus Act, “district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “[M]andamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases.” Hakki v Sec'y Dep't of Veteran Affs., 7 F.4th 1012, 1036-37 (11th Cir. 2021) (citing Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003)). “Mandamus relief is only appropriate when: ...