Liu v. Blinken

544 F.Supp.3d 1

XIAOBING LIU et al., Plaintiffs,

v.Antony J. BLINKEN et al., Defendants.

Civil Action No. 21-629 (TJK)

United States District Court, District of Columbia.

Signed June 18, 2021

Xiaosheng Huang, Law Huang International Ltd., Michael Chen, Michael Chen Law Offices, Las Vegas, NV, for Plaintiff Xiaobing Liu.

Xiaosheng Huang, Law Huang International Ltd., Las Vegas, NV, for Plaintiffs Yunchuan Wang, Weenziu Zhou, Ning Deng, Jing Li, Yiyang Shi, Scichao Zhao, Jing Dai, Hong Du, Yifan Zhou, Yong Guo, Shuguang Xin, Limin Rao, Xianmin Chen, Jing Zhao, Min Zhou, Wei Wang, Ju Wang, Xiaoyang Lyu, Cairong Yang, Ying Tang, Runze Yuan, Cheng Zhao, Jun Wang, Xingyun Huang, Yang Sun, Xiaolin Wang, Chunyan Lin, He Huang, Qianli, Ma, Xinwu Sun, Lei Tian, Jun Liu, Ximmei Song, Yunqian Zhang.

Xiaosheng Huang, Law Huang International Ltd., Las Vegas, NV, for Defendant U.S. Department of State.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

Plaintiffs, a group of Chinese citizens seeking to immigrate to the United States through the EB-5 Immigrant Investor Program, sue the Secretary of State, the State Department, and a series of unnamed government officials, alleging that Defendants are unlawfully refusing to schedule their visa interviews and delaying the adjudication of their applications. Plaintiffs also seek preliminary injunctive relief, noting that the potential expiration of the EB-5 Regional Center Program means that, unless their visa applications are adjudicated promptly, they could lose their opportunity to immigrate under the program altogether. Defendants oppose the motion and have moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim, or in the alternative, for summary judgment. For the reasons explained below, the Court will grant Defendants’ motion to dismiss and deny Plaintiffs’ motion for a preliminary injunction because they have not shown a likelihood of success on the merits.

I. Background

A. The EB-5 Program and Regional Center Program

Congress created the EB-5 Immigrant Investor Program when it passed the Immigration Act of 1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4989. The program allocates visas—in a number not to exceed 7.1 percent of all visas—to aliens "seeking to enter the United States for the purpose of engaging in a new commercial enterprise." 8 U.S.C. § 1153(b)(5)(A). To be eligible for the program during the timeframe relevant to this lawsuit, an alien must have invested $1,000,000 in an enterprise, or $500,000 in a "targeted employment area." Id. § 1153(b)(5)(C). Congress later established the Regional Center Pilot Program which relaxed certain EB-5 requirements for investments made through a geographic-based Regional Center. See Pub. L. No. 102-395, § 610, 106 Stat. 1828, 1874. Congress has reauthorized the program more than twenty times since its inception and removed the "pilot" designation in 2012. See Pub. L. No. 112-176 § 1, 126 Stat. 1325 (Sept. 28, 2012). The Regional Center Program's latest expiration date is June 30, 2021.

To obtain lawful permanent resident status through the EB-5 program, an alien investor must file a Form I-526 petition with the United States Citizenship and Immigration Services (USCIS), a component of the Department of Homeland Security. 8 C.F.R. §§ 204.6(a), (c). If USCIS determines that the alien investor meets the EB-5 requirements, it will approve the petition. See Nohria v. Renaud , No. 20-cv-2085 (BAH), 2021 WL 950511, at *2 (D.D.C. Mar. 14, 2021) (describing I-526 process). With an approved I-526 petition in hand, the alien becomes an "employment-based immigrant" under the EB-5 statute. 8 U.S.C. § 1154(a)(1)(H). An approved I-526 petition "makes a petitioner eligible for a visa, but does not automatically provide a visa." Nohria , 2021 WL 950511, at *2. The immigrant, if outside the United States, must still apply for and obtain an immigrant visa from the State Department at a consular post abroad. See 84 Fed. Reg. 35,750, 35,756 –57 (July 24, 2019) (describing EB-5 visa process); 22 C.F.R. § 42.61(a). The State Department processes the application at its National Visa Center and ensures that the applicant meets all prerequisites for visa adjudication. Nohria , 2021 WL 950511, at *2 ; 84 Fed. Reg. at 35,756. If the Center finds that an applicant is "documentarily qualified," then it forwards the application package to the consulate, which schedules a visa interview. See 84 Fed. Reg. at 35,756. After the interview, a consular officer must either grant, deny, or discontinue the visa application. See 22 C.F.R. § 42.81(a).

B. Plaintiffs’ EB-5 Investments and Visa Applications

According to the Amended Complaint, Plaintiffs are a group of thirty-eight Chinese citizens seeking to immigrate into the United States. ECF No. 27 ("Am. Compl.") ¶ 7. Plaintiffs each invested the requisite amount for participation in the EB-5 program and the USCIS has approved each investor's Form I-526 petition. Id. ¶ 15. Their applications became documentarily complete between December 2019 and May 2021, and they are now at various stages of processing at the U.S. Consulate General in Guangzhou, China. Id. ¶ 9, 16–53. Most Plaintiffs are awaiting visa interviews, one of the final steps in the visa process. Id.

While Plaintiffs’ visa applications were pending, the COVID-19 pandemic hit. On January 31, 2020, former President Donald Trump issued Presidential Proclamation 9984 ("the Proclamation") suspending the entry of individuals from China into the United States. See Proclamation No. 9984, 85 Fed. Reg. 6,709. The Proclamation exempted "any alien whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees."

85 Fed. Reg. at 6711. Soon after, in March 2020, the Secretary of State "suspended all routine visa services," providing only "emergency" and "mission critical" services. Am. Compl. ¶¶ 10, 58. In July 2020, the Secretary of State announced that the State Department would also "begin providing additional services, culminating eventually in a complete resumption of routine visa services." Am. Compl. ¶ 10. Plaintiffs allege that the U.S. Consulates in China issued no EB-5 visas between March 20, 2020, and the filing of this suit in March 2021. Id. They suggest that this suspension was based on Defendants’ interpretation of the Proclamation. Am. Compl. ¶¶ 71.

Since Plaintiffs sued, though, on April 8, 2021, the Secretary of State determined that the travel of immigrants and others is in the national interest for purposes of the national interest exception under Presidential Proclamation 9984.¹ Because EB-5 visas are immigrant visas, this determination applies to Plaintiffs’ visa applications. The scheduling of the backlog of visa interviews is now proceeding subject to a scheme that prioritizes certain types of immigrant visas, particularly those related to family reunification.² EB-5 visas fall into the last category for prioritization, "tier four," but the State Department's plan "instructs posts to schedule and adjudicate some cases in Tier Three and Tier Four each month." Id.

Plaintiffs filed this suit against the Secretary of State, the State Department, and a series of unnamed government officials ("Defendants") on March 9, 2021, see ECF No. 1, and moved for a preliminary injunction a month later, see ECF No. 10. They seek an injunction preventing Defendants from implementing or enforcing Presidential Proclamation 9984 against them and requiring Defendants to immediately "re-initiate" processing of their visas. ECF No. 10 at 23. After some difficulty effecting proper service, Plaintiffs served Defendants on May 18. ECF No. 20. In response, Defendants moved to dismiss, or in the alternative, for summary judgment. ECF No. 23. On June 3, Plaintiffs also amended their complaint to remove three applicants Defendants identified as having received their visas. ECF No. 24. On June 11, the Court held a hearing on the motion for a preliminary injunction.³

II. Legal Standards

A. Motion for Preliminary Injunction

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20, 129 S.Ct. 365. The last two factors merge where plaintiffs seek preliminary relief against the government. Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Before Winter , these factors were "evaluated on a ‘sliding scale’ " so that "an unusually strong showing on one of the factors" could make up for a weaker showing on another. Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1291 (D.C. Cir. 2009) (quoting Davenport v. Int'l Brotherhood of Teamsters , 166 F.3d 356, 361 (D.C. Cir. 1999) ). That said, the D.C. Circuit "has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a ‘more demanding burden’ requiring plaintiffs to independently demonstrate both a likelihood of success on the merits and irreparable harm." Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers , 205 F. Supp. 3d 4, 26 (D.D.C. 2016) (quoting Sherley v. Sebelius , 644 F.3d 388, 392 (D.C. Cir. 2011) ). Thus, "without a likelihood of success on the merits, Plaintiffs are not entitled to a preliminary injunction regardless of their showing on the other factors." Brown v. FEC , 386 F. Supp. 3d 16, 24 (D.D.C. 2019) (citing Ark. Dairy Coop Ass'n, Inc. v. U.S. Dep't of Agric. , 573 F.3d 815, 832 (D.C. Cir. 2009) ).

B. Motions to Dismiss

A motion to dismiss...