Sychev v. Jaddou

KIRILL SYCHEV, Plaintiff, v. UR M. JADDOU, et al., Defendants.

Civil Action No. 20-3484 (CKK)

United States District Court, District of Columbia

March 30, 2022

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

In this action, Plaintiff Kirill Sychev (“Plaintiff” or “Sychev”) seeks injunctive and mandamus relief ordering officials of the United States Department of State (“State Department”) and the United States Department of Homeland Security (“DHS”) to more expeditiously act on his Form I-526 petition for an EB-5 immigrant investor visa pursuant to the Administrative Procedure Act's (“APA”) bar on “unreasonabl[e] delay[].” 5 U.S.C. § 706(1). Because DHS has already conveyed Plaintiff's visa application for processing to the State Department's National Visa Center (“NVC”), the Court shall dismiss as moot the complaint as against the DHS Defendants. As for the State Department Defendants, the Court shall order additional briefing from the parties before ruling. Accordingly, and upon review of the pleadings, ^[1] the relevant legal authority, and the record as a whole, the Court shall GRANT IN PART AND HOLD IN ABEYANCE IN PART Defendants' [15] Motion to Dismiss.

I. BACKGROUND

A. The EB-5 Immigrant Investor Program

The Immigration and Nationality Act (“INA”), U.S.C. §§ 1101 et seq., authorizes the issuance of “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). Through this process, the applicant must have also made a direct investment of at least $1, 000, 000 or an investment of $500, 000 into a “targeted employment area.” § 1153(b)(5)(C)(ii).^[2] 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).

At the time of the complaint, the law offered EB-5 applicants a second route through investing into a “regional economic center.” 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). These regional centers combine the funds of many investors and channel them to enterprises that “increase[] export sales, improve[] regional productivity, job creation, or increase[] 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).

To receive an EB-5 visa, 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, ” Mirror Lake 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, ^[3] 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 Haider v. U.S. Deo't of Homland Sec., No. 20-3808 (CKK), 2021 WL 5630794, at *2 (D.D.C. Dec. 1, 2021). Finally, a State Department consular officer conducts an interview with the applicant and ultimately approves or denies the visa. Id.

Since its inception, the Program had been repeatedly reauthorized by statute. U.S. Immigration Fund-NY LLC v. Mayorkas, No. 21-0358 (CKK), 2022 WL 715239, at *2 (D.D.C. Mar. 10, 2022). The Program, however, expired on July 21, 2022, and, for its part, DHS ceased review of Form I-526 petitions. See Id. at *3. On March 15, 2022, President Joseph R. Biden, Jr. signed the Violence Against Women Act Reauthorization Act into law, reauthorizing the Program and EB-5 visa applications tied to the program. See Violence Against Women Act Reauthorization Act of 2022, Pub. L. 117-103, 136 Stat. 49, 1075 (2022). In particular, the law forbids the denial of a Form I-526 petition on the basis of the prior lapse in the Program's statutory authorization. Id. at 1109.

B. Factual Background

Plaintiff, a citizen of the Russian Federation, submitted an I-526 petition for an EB-5 visa to DHS on March 24, 2016. Compl., Ex. A at 2. DHS approved the petition on November 16, 2018 and referred it to NVC for further processing. Compl. ¶ 9; see also Id. On May 7, 2019, Plaintiff appeared for his interview with a consular officer at the United States Embassy, Moscow (“Embassy”). Compl. ¶ 10. On June 17, 2019, the Embassy sent Plaintiff a letter informing him that his application had been sent back to USCIS for reprocessing on account of “indications that petition [sic] . . . contains inaccurate information.” Compl. Ex. B. Defendant asserts, and Plaintiff does not contest, that USCIS found no issue with his I-526 petition, reaffirming and conveying it to NVC on March 26, 2021. Opp. at 2. On April 23, 2021, however, the Embassy moved all visa processing for Russian nationals to the United States Embassy, Warsaw. State Department, Visas, available at https://ru.usembassy.gov/visas/ (last visited March 23, 2022 10:35 AM). Accordingly, should a consular officer assigned to Plaintiffs visa application schedule an interview, Plaintiff would have to travel to Poland for the interview. Due to the Russian Federation's ongoing invasion of Ukraine, Polish airspace remains closed to Russian commercial flights and other methods of travel from Russia into Western Europe remain clogged. See Antonia Mortensen and Ivana Kottasava, “Poland and the Czech Republic will close airspace for Russian airlines, ” CNN (Feb. 25, 2022 1:47 PM ET) https://edition.cnn.com/europe/live-news/ukraine-russia-news-02-25-22/h688ae817addb5fe6847b975d717fe824; Lisa Abend, “There's an Atmosphere of Fear. With Flights Banned, Russians are Fleeing by Train to Europe, ” Time (Mar. 16, 2022 8:51 AM ET) https://time.com/6157438/russians-trains-europe-ukraine/.^[4]

II. LEGAL STANDARD

A. Motion to Dismiss for Lack of Jurisdiction

On a Rule 12(b)(1) motion, the plaintiff “bears the burden of establishing jurisdiction by a preponderance of the evidence.” Bagherian, 442 F.Supp.3d at 91-92 (D.D.C. 2020); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In determining whether there is jurisdiction, the court may “‘consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.'” Coal. For Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). Courts must accept as true all factual allegations in the complaint and construe the complaint liberally, granting the plaintiff the benefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1106 (D.C. Cir. 2005); Koutny v. Martin, 530 F.Supp.2d 84, 87 (D.D.C. 2007).

However, “the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001). A court need not accept as true “‘a legal conclusion couched as a factual allegation'” or an inference “‘unsupported by the facts set out in the complaint.'” Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks omitted) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

B. Motion to Dismiss for Failure to State a Claim

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...