Vafaei v. United States Citizenship & Immigration Servs.

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BAKTASH VAFAEI, Plaintiff, v. U.S. CITIZENSHIP & IMMIGRATION SERVICES, et al., Defendants.

Civil Action No. 22-1608 (CKK)

United States District Court, District of Columbia

March 21, 2024

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

On June 7, 2022, Plaintiff Baktash Vafaei filed a [1] Complaint for Mandamus and Declaratory Judgment (the “Complaint” or “Compl.”), seeking a judgment from the Court compelling Defendants U.S Citizenship & Immigration Services (“USCIS”) USCIS Director Ur Jaddou, Secretary of Homeland Security Alejandro Mayorkas, and USCIS Chief Alissa Emmel (collectively, the “Defendants”) to process his I-526 visa petition. Plaintiff seeks relief under the Administrative Procedure Act (“APA”), 5 U.S.C §§ 555, 706, and the Mandamus Act, 28 U.S.C. § 1361, based on allegations that Defendants have unreasonably delayed the adjudication of his petition. Pending before the Court is Defendants' [5] Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”). Plaintiff opposes this motion. See Pl.'s Resp., ECF No. 6. Upon review of the pleadings,^[1]the relevant legal authority, and the record as a whole, the Court shall GRANT Defendants' [5] Motion to Dismiss and DISMISS Plaintiff's [1] Complaint for Mandamus and Declaratory Judgment.

I. BACKGROUND

This case concerns the EB-5 Immigrant Investor Program, which permits 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 [or children]).” Id. § 1153(b)(5)(A)(ii). The investment must be at or above a certain monetary amount. Id. § 1153(b)(5)(C). 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).

To obtain lawful permanent resident status through the EB-5 program, a foreign investor must file a Form I-526 petition with USCIS. Id. § 204.6(a). If USCIS determines that the foreign investor meets the EB-5 requirements, it will approve the petition. See, e.g., Nohria v. Renaud, No. 20-cv-2085, 2021 WL 950511, at *2 (D.D.C. Mar. 14, 2021) (BAH) (describing I-526 process). Once the I-526 petition is approved by USCIS, the applicant must still wait for a visa to become available, which, as acknowledged by the D.C. Circuit, “may take years.” Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 375 (D.C. Cir. 2020); see also Nohria, 2021 WL 950511, at *2 (“Successful adjudication and approval of an I-526 petition makes a petitioner eligible for a visa, but does not automatically provide a visa.”).

Congress designed the Regional Center Program as a “pilot” program in 1992, which it has “periodically reauthorized.” Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 337 (D.C. Cir. 2023). The program's statutory authorization, however, expired on July 1, 2021. Id. This expiration of statutory authorization resulted in a nine-month lapse until March 2022, when Congress passed the EB-5 Reform and Integrity Act of 2022, extending the program's authorization through September 2027. Id.; see Pub. L. No. 117-103, Div. BB, § 103, 136 Stat. 1070, 1075 (2022). During this nine-month period from July 2021 to March 2022, USCIS “paused adjudicating I-526 petitions.” Da Costa, 80 F.4th at 338; Defs.' Mot. at 14 (“USCIS placed pending I-526 petitions on hold during the sunset of the statutory authorization[.]”).

Plaintiff Baktash Vafaei is a citizen and resident of Germany. Compl. ¶ 7. His country of birth is Iran. Pl.'s Resp. at 5. On November 8, 2019, Plaintiff invested $500,000 in CMB Infrastructure Investment Group 71, LP, a new commercial enterprise formed to accept up to $27.5 million from EB-5 investors “for the development and construction of a housing complex” for university students in Seattle, Washington. Compl. ¶¶ 22-23. Shortly thereafter, on November 20, 2019, Plaintiff filed a I-526 petition with USCIS. Id. ¶ 24. Since November 2019, Plaintiff's petition has been awaiting adjudication with USCIS. Id. ¶ 26.

Plaintiff filed this lawsuit in June 2022. See generally id. He alleges that the delay in adjudicating his I-526 petition has caused him to “suffer[] a continued harm” and “severely prejudices [his] interests both financially and with respect to his immigration goals.” Id. ¶¶ 27, 68. Plaintiff argues that Defendants' delay in adjudication is unreasonable under the Mandamus Act and the APA. Id. ¶¶ 56-74.

II. LEGAL STANDARD

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 Rule 12(b)(6) motion, 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. “[T]he 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) (PLF).

In determining whether a complaint survives a Rule 12(b)(6) motion, 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 the Court may take judicial notice.” Palakuru v. Renaud, 521 F.Supp.3d 46, 49 (D.D.C. 2021) (TNM) (quotation cleaned up) (quoting Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006)). The Court may take judicial notice of information published on official public websites of government agencies. Devani v. U.S. Citizenship & Immigr. Servs., No. 22-cv-01932, 2023 WL 2913645, at *3 n.1 (D.D.C. Apr. 12, 2023) (DLF) (citing Arab v. Blinken, 600 F.Supp.3d 59, 63, n.1 (D.D.C. 2022) (BAH)).

III. DISCUSSION

Plaintiff argues that Defendants' delay in adjudicating his I-526 petition is unreasonable under the APA and the Mandamus Act. Compl. ¶¶ 56-74. Courts review claims of unreasonable delay in processing immigration petitions according to the “same [standard] under both § 706(1) of the APA and the Mandamus Act.” Skalka v. Kelly, 246 F.Supp.3d 147, 152 (D.D.C. 2017) (RJL). Although a court may order an agency “to perform a [mandatory] act, [i.e.,] to take action upon a matter,” a court may not decide “how [the agency] shall act.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004).

To determine whether a plaintiff has sufficiently alleged that agency action has been “unreasonably delayed,” courts apply the familiar “TRAC” factors laid out in Telecommunications Research & Action Center v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984):

(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) (internal quotation marks omitted). Whether a delay is unreasonable “cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful, but will depend in large part . . . upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003).

In his opposition to Defendants' motion to dismiss, Plaintiff indicates that the TRAC methodology is inappropriate at the motion to dismiss stage, in large part because “discovery into facts relevant to the TRAC factors is necessary[.]”^[2]Pl.'s Resp. at 4; id. at 3 (claiming “the current judicial trend finds that motions to dismiss are inappropriate for unreasonable delay cases”). Some district courts have concluded that it is inappropriate to decide unreasonable delay claims at the motion to dismiss stage. See Thomas v. Pompeo, 438 F.Supp.3d 35, 44 (D.D.C. 2020) (ESH) (concluding that “any determination of whether defendants have unreasonably delayed adjudication . . . is premature at this juncture”). However, the majority of authority in this jurisdiction demonstrates that it is appropriate to apply the TRAC factors at the motion to dismiss stage. See, e.g., Bagherian v. Pompeo, 442 F.Supp.3d 87, 94 (D.D.C. 2020) (JDB) (applying...