Hulli v. Mayorkas

549 F.Supp.3d 95

Eric Sabi HULLI, et al., Plaintiffs,

v.Alejandro N. MAYORKAS, et al., Secretary of Homeland Security, Defendants.

Anvita Uday Baldota, et al., Plaintiffs,

v.Alejandro N. Mayorkas, et al., Secretary of Homeland Security, Defendants.

Case No. 21-cv-902 (CRC)

Case No. 21-cv-1027 (CRC)

United States District Court, District of Columbia.

Signed June 29, 2021

Daniel B. Lundy, H. Ronald Klasko, Klasko Immigration Law Partners, LLP, Philadelphia, PA, for Plaintiffs Eric Sabi Hulli, Rohit Vanakamamidi, Venkatachalapathy Chittoor Subramaniam Vaidyanatha, Indira Balakrishnan, Shreyas Balakrishnan Chittoor Venkatachalapathy, Anvita Uday Baldota, Srinivas Reddy Sudhireddy, Swapna Kasireddy.

H. Ronald Klasko, Klasko Immigration Law Partners, LLP, Philadelphia, PA, for Plaintiff Swarna Matsa.

Kenneth A. Adebonojo, Heather D. Graham-Oliver, U.S. Attorney's Office for the District of Columbia, Vanessa Molina, Joshua Samuel Press, Glenn M. Girdharry, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

CHRISTOPHER R. COOPER, United States District Judge

Plaintiffs in these consolidated cases are foreign nationals currently living in the United States who hope to become permanent legal residents through the EB-5 investor visa program. After meeting the program's investment requirements, each plaintiff filed a Form I-485 petition with the United States Customs and Immigration Service ("USCIS") to adjust their immigration status. When USCIS failed to adjudicate the petitions for between twelve and twenty-seven months, plaintiffs sued the agency in April 2021. The Complaint seeks mandamus relief in the form of an order compelling USCIS to decide the petitions within fifteen days. A subset of plaintiffs whose petitions still have not been fully adjudicated now move for a temporary restraining order compelling USCIS to act on their petition before June 30, 2021. The specific EB-5 program in which plaintiffs are participating is set to expire by that date absent Congressional reauthorization. Because plaintiffs establish neither irreparable injury nor likelihood of success on the merits, the Court will deny the motion.

I. Background

A. EB-5 Visa Program

The EB-5 program provides a path to lawful permanent resident status for immigrants (and their family members) who invest at least $500,000 in new commercial enterprises ("NCEs") within the United States. 8 U.S.C. § 1153(b)(5). To qualify for the program, the investments must satisfy two conditions: (1) the investor must show that the $500,000 investment occurred in a "targeted employment area," id. § 1153(b)(5)(B), (b)(5)(C) ; and (2) the investment must "create full-time employment" for at least ten United States workers, id. § 1153(b)(5)(A)(ii). Under the Regional Center Program, the job-creation requirement may be satisfied by employees hired as an indirect result of the immigrant's investment in an NCE. See Pub. L. 102-395, title VI, § 610(b), 106 Stat. 1828, 1874 (1992). The Regional Center Program is subject to Congressional reauthorization, see id., which it has received on over thirty occasions since the program was first enacted in 1992, see Memo. in Opp. to Mot. for TRO at 5–6, ECF No. 17 (hereinafter, "Opp.") (listing each instance of Congressional reauthorization); see also Aguilera Decl. ¶ 7, ECF No. 17-1. Most recently, Congress extended the program through June 30, 2021. See Consolidated Appropriations Act, 2021, Pub L. No. 116-260.

An investor seeking permanent residency through the Regional Center Program follows a multi-step process. First, he or she must petition USCIS for classification as an EB-5 investor using a Form I-526 petition. See 8 C.F.R. § 204.6(a), (c). Upon approval of the I-526, a petitioner located in the United States can apply for two-year conditional lawful permanent resident status via a Form I-485. See 8 U.S.C. § 1186b(a)(1) ; 8 C.F.R. §§ 216.1, 245.2. Once the Form I-485 is filed, the petitioner may apply for temporary work and travel authorization documents incident to a pending Form I-485 petition. See 8 U.S.C. § 1182(d)(5) ; 8 C.F.R. § 274a.12(c)(9). Upon approval of the Form I-485, the petitioner becomes a two-year conditional permanent resident. See 8 U.S.C. § 1186b(a)(1), (d)(2)(A). Finally, at the conclusion of that two-year conditional period, the petitioner may file a Form I-829 petition. See 8 C.F.R. § 216.6(c). If the Form I-829 petition is approved, the petitioner obtains permanent resident status in the United States.

B. Plaintiffs’ Allegations

The present motion involves seven participants in the Regional Center Program who filed I-485 Petitions between twelve and twenty-five months prior to initiating this lawsuit.¹ See Hulli Compl. ¶¶ 8–13, ECF No. 1; Baldota Compl. ¶¶ 1, 7–9, ECF No. 1. Approximately three months have passed since plaintiffs filed suit. Thus, the movants have been awaiting adjudication of their Form I-485 petitions for between fifteen and twenty-eight months. Plaintiffs’ complaint alleges that USCIS has unlawfully delayed adjudicating their petitions and requests that the Court compel USCIS to resolve them within fifteen days. See Hulli Compl. ¶ 130; Baldota Compl. ¶ 82. In support of that request, plaintiffs allege that the delay has jeopardized the substantial financial investments they made pursuant to the immigrant investor program as well as their opportunity to become permanent residents in the United States. See Hulli Compl. ¶¶ 69–70, 117–18; Baldota Compl. ¶¶ 2–4, 68–70. Movants argue that these risks warrant issuance of a temporary restraining order requiring that adjudication occur before June 30, 2021, on which date the Regional Center Program is set to expire absent congressional reauthorization.

II. Legal Standard

A temporary restraining order "is an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion." Postal Police Officers Ass'n v. United States Postal Serv., 502 F. Supp. 3d 411, 418 (D.D.C. 2020) (Cooper, J.) (quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004) ). To warrant such extraordinary relief, moving parties must show: (1) that they are likely to succeed on the merits of their claims; (2) that they are likely to suffer irreparable harm absent preliminary relief; (3) that the balance of the equities tilts in their favor; and (4) that consideration of the public interest favors preliminary relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The D.C. Circuit has suggested but not held that a movant's failure to establish a likelihood of success on the merits categorially precludes preliminary relief. See Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) ; see also Postal Police Officers, 502 F. Supp. 3d at 418 (citing Sherley for the same). The Circuit has made clear, however, that movants are barred from receiving such relief should they fail to establish irreparable injury. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) ; see also D.A.M. v. Barr, 474 F. Supp. 3d 45, 55–56 (D.D.C. 2020) (Cooper, J.).

III. Analysis

The Court begins with the likelihood of success on the merits before turning to irreparable injury.

A. Likelihood of Success on the Merits

Courts evaluating agency delay apply the six so-called " TRAC factors" set forth in Telecomms. Rsch. & Action v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (" TRAC"); see, e.g., Jingjing Liu v. Mayorkas, No. 20-cv-654, 2021 WL 2115209, at *3 (D.D.C. May 25, 2021) (Cooper, J.). The six TRAC factors are:

(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 with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not "find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed."

In re United Mine Workers of Am. Int'l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting TRAC, 750 F.2d at 80 ).

1. Rule of reason

Among the six TRAC factors, the first is "most important," In re Core Commc'ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008). Here, it favors defendants. Plaintiffs contend that "it is nearly impossible to decipher what rule of reason the agency has adopted in delaying an adjudication o[f] the [p]laintiffs’ Form I-485s for 20-28 months." Hulli Mot. for TRO, at 8, ECF No. 8 (emphasis in original); see also Baldota Mot. for TRO at 7, ECF No. 9 (arguing that "it is nearly impossible to decipher what rule of reason the agency has adopted in delaying an adjudication on the [p]laintiffs’ Form I-485s for nearly fifteen (15) months.") (emphasis in original). The government responds that the rule of reason is satisfied by USCIS's "first in, first out" processing system, with a priority for petitions for which there is an available visa. See Opp. at 10–11; see also Aguilera Decl. ¶¶ 18–20.

The first-in, first-out approach described by the government provides an "identifiable rationale" for its adjudication and, thus, satisfies the rule of reason for purposes of opposing plaintiffs’ temporary restraining order. Desai v. U.S. Citizenship & Immigr. Servs., No. CV 20-1005 (CKK), 2021 WL 1110737, at *5 (D.D.C. Mar. 22, 2021). Indeed, "all of the district courts that have considered this question have concluded that the visa availability approach satisfies the rule of reason." Jain v....