Palakuru v. Renaud

521 F.Supp.3d 46

Guru P. PALAKURU, Plaintiff,

v.Tracy RENAUD, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services,¹ Defendant.

Case No. 1:20-cv-02065 (TNM)

United States District Court, District of Columbia.

Signed February 22, 2021

Matthew Tony Galati, The Galati Law Firm, Elkins Park, PA, Bradley Bruce Banias, Wasden Banias LLC, Charleston, SC, for Plaintiff.

Daniel Patrick Schaefer, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Plaintiff Guru P. Palakuru sues Tracy Renaud, who currently performs the duties of Director of the U.S. Citizenship and Immigration Services ("USCIS" or "the Government"). Palakuru claims that the Government's delay in adjudicating his visa petition is unreasonable. Among other relief, he seeks an order compelling the Government to adjudicate his petition within 30 days. The Government moves to dismiss. Because Palakuru has failed to allege a plausible claim of unreasonable delay under the Administrative Procedure Act ("APA"), the Court will grant the motion.

I.

A.

This case concerns the EB-5 Immigrant Investor Program, which allows foreign investors to enter the United States "for the purpose of engaging in a new commercial enterprise" that meets certain criteria. 8 U.S.C. § 1153(b)(5)(A). To qualify, the investment must "create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters)." Id. § 1153(b)(5)(A)(ii). The investment must also be at or above a certain dollar amount. See id. § 1153(b)(5)(C) ; 8 C.F.R. § 204.6(f).

Aside from creating jobs directly by hiring employees, foreign investors can invest in a "regional center" designated by USCIS that is designed to create jobs indirectly through economic growth. See 8 C.F.R. § 204.6(m) ; see also id. § 204.6(e) (defining a "[r]egional center" as "any economic unit, public or private, which is involved with the promotion of economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment").

Foreign investors may petition to be classified as an EB-5 immigrant by using a Form I-526. See id. § 204.6(a), (c). The approval of the Form I-526 is the first step towards becoming a lawful permanent resident. Def.’s Mem. Supp. Mot. to Dismiss ("Def.’s Mem.") at 8, ECF No. 9-1.² An approved Form I-526 allows the foreign investor and his dependent family members to obtain "legal U.S. resident" status "on a conditional basis for two years." Wang v. USCIS , 375 F. Supp. 3d 22, 26 (D.D.C. 2019).

USCIS generally processes petitions according to a "first-in, first-out" method, but prioritizes petitions from countries "where visas are immediately available, or soon available" based on per-country limits.³ This process allows visa petitioners from countries where visas are immediately available to more efficiently use their country's annual allotment of visas. See USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory, supra note 3.

Palakuru is a citizen and national of India who resides in the United States. Compl. ¶ 1, ECF No. 1. He alleges that he invested the required amount "into a new commercial enterprise in the United States"—specifically, a regional center in New York—"that created at least ten jobs for lawful United States workers." Id. ¶¶ 9, 60. Palakuru filed his Form I-526 petition in October 2018, so his petition has been pending for over two years. See id. ¶ 61.

He sues claiming that the Government's delay in addressing his petition constitutes unreasonable delay under the APA. Id. ¶¶ 87–108. Palakuru "demands discovery" and asks the Court to compel the Government to adjudicate his petition "within 30 days." Id. ¶¶ 107, 114. He also seeks fees under the Equal Access to Justice Act. Id. ¶¶ 109–12. The Government moves to dismiss. Def.’s Mot. to Dismiss, ECF No. 9; Def.’s Mem. The motion is ripe.⁴

II.

To defeat a Rule 12(b)(6) motion, a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (cleaned up). The plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court must "treat the complaint's factual allegations as true and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged." L. Xia v. Tillerson , 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up). But the Court need not credit legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "In determining whether a complaint fails to state a claim," the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice." Trudeau v. FTC , 456 F.3d 178, 183 (D.C. Cir. 2006) (cleaned up).

III.

The Government argues that Palakuru's complaint must be dismissed because it fails to state a claim of unreasonable delay. See Def.’s Mem. at 13. The Court agrees.

The APA "imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time,’ and authorizes a reviewing court to ‘compel agency action unlawfully withheld or unreasonably delayed.’ " Mashpee Wampanoag Tribal Council, Inc. v. Norton , 336 F.3d 1094, 1099 (D.C. Cir. 2003) (quoting 5 U.S.C. §§ 555(b), 706(1) ). Courts in this circuit consider six factors (the " TRAC factors") when evaluating unreasonable-delay claims:

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 consider 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.

Telecomms. Rsch. & Action Ctr. v. FCC , 750 F.2d 70, 80 (D.C. Cir. 1984) (" TRAC ") (cleaned up). The D.C. Circuit has emphasized that "[r]esolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the particular facts and circumstances before the court." Mashpee , 336 F.3d at 1100.

A.

For starters, the Court rejects Palakuru's argument that the Government's "motion is premature." Pl.’s Resp. to Def.’s Mot. to Dismiss ("Pl.’s Resp.") at 10, ECF No. 10. True, some courts have held that it is inappropriate to decide unreasonable-delay claims at the motion-to-dismiss stage before discovery. See, e.g. , Thomas v. Pompeo , 438 F. Supp. 3d 35, 44 (D.D.C. 2020) ("conclud[ing] that any determination of whether defendants have unreasonably delayed adjudication ... is premature at this juncture" because the inquiry is "fact intensive" (cleaned up)). But the weight of authority appears to cut in the opposite direction. See, e.g. , Sarlak v. Pompeo , No. 20-cv-35-BAH, 2020 WL 3082018, at *5 (D.D.C. June 10, 2020) (acknowledging the plaintiffs’ argument that applying the TRAC factors at the motion-to-dismiss stage was premature, but deciding that "[n]evertheless, in cases like this one involving claims of unreasonably delayed waiver determinations, the TRAC factors have been generally employed at the motion to dismiss stage to determine whether a plaintiff's complaint has alleged facts sufficient to state a plausible claim for unreasonable administrative delay" (cleaned up)); see also Ghadami v. DHS , No. 19-cv-00397-ABJ, 2020 WL 1308376, at *7 n.6 (D.D.C. Mar. 19, 2020) (acknowledging the split in authority but deciding that "it is appropriate for the Court to apply the factors at th[e] [motion-to-dismiss] stage"); Didban v. Pompeo , 435 F. Supp. 3d 168, 176–77 (D.D.C. 2020) (applying the TRAC factors at the motion-to-dismiss stage); Bagherian v. Pompeo , 442 F. Supp. 3d 87, 95–96 (D.D.C. 2020) (same); Skalka v. Kelly , 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017) (same).

It is appropriate now to consider whether Palakuru's complaint meets Rule 12(b)(6)’s pleading standards. As another judge in this district put it after acknowledging the split in authority, "the Court is not determining whether there has been an unreasonable delay; rather, it is determining whether plaintiffs’ complaint has alleged facts sufficient to state a plausible claim for unreasonable administrative delay." Ghadami , 2020 WL 1308376, at *7 n.6. The Government's motion is thus timely.⁵

B.

Applying the TRAC factors, the Court determines: (1) that the Government's adjudication of petitions is governed by a rule of reason and that any indication from Congress does not suggest otherwise; (2) that the effect of expediting Palakuru's petition would undermine the Government's competing priorities; and (3) that the rest of the TRAC factors do not warrant granting Palakuru the relief he seeks.⁶

1.

The first TRAC factor is the "most important." In re Core Commc'ns, Inc. , 531 F.3d 849, 855 (D.C. Cir. 2008). It requires an inquiry into whether there is "any rhyme or reason" for the Government's delay—in other words, "whether the agency's response time ... is governed by an identifiable rationale." Ctr. for Sci. in the Pub. Interest v. FDA , 74 F. Supp. 3d 295, 300 (D.D.C. 2014). The Court finds that the...