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finding no authority for "proposition that delays ranging from fifteen to twenty-eight months violate the rule-of-reason requirement"
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Case No. 21-cv-902 (CRC) Case No. 21-cv-1027 (CRC)
2021-06-29
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.
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.
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. 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.
Four plaintiffs named in the Hulli complaint joined the motion for a temporary restraining order, see Hulli Compl. ¶¶ 8–16; Hulli TRO Mot. at 5, along with the three plaintiffs named in the Baldota complaint, see Baldota Compl. ¶¶ 1, 7–9; Baldota TRO Mot. at 4–5. Since then, however, all but two have had their petitions adjudicated. See Pls. Am. Reply at 1 n.1, ECF No. 21 (hereinafter, "Reply"); Defs. Notice of Admin. Action, ECF No. 15.
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. Renaud, No. 21-cv-3115 (KVD), 2021 WL 2458356, at *4 (N.D. Cal. June 16, 2021).
Plaintiffs decline to engage with the reasoning of these decisions, instead pointing out that "different kinds of immigration petitions are subject to different legal standards" and thus "the reason for any delays may differ depending on the specific petition at issue." Reply at 2 (cleaned up). But plaintiffs provide no authority for the proposition that the unique circumstances of the EB-5 program legally mandate USCIS to prioritize EB-5 based Form I-485 petitions. In any event, plaintiffs neglect to mention that several courts that have found the first-in, first-out approach to satisfy the rule of reason have, in fact, done so in the context of the EB-5 program. See, e.g., Jain, 2021 WL 2458356, at *4 ; Desai, 2021 WL 1110737, at *5.
Plaintiffs nonetheless contend that it is the rate— rather than the order —of decisions that violates the rule of reason. Hulli Mot. for TRO at 13; Baldota Mot. for TRO at 13. To that end, plaintiffs point out that USCIS has "historically processed EB-5 I-485 applications in 8-12 months," and that "[t]here is no reason why they cannot do so for [p]laintiffs’ applications[.]" Hulli Mot. for TRO at 8; see also Baldota Mot. for TRO at 8 (same). This argument fails as well. Plaintiffs rely on processing times published by USCIS in 2018. See Hulli Mot. for TRO at 8–9; Baldota Mot. for TRO at 8–9. But as explained in Mr. Aguilera's declaration, several circumstances have contributed to delayed processing times in the past year. See Aguilera Decl. ¶¶ 21–24 (citing to visa availability, backlogs, and COVID-19 related operational constraints). Plaintiffs cite no authority for the assertion that USCIS's failure to process their applications at 2018 speeds violates the rule of reason.
Nor do plaintiffs muster any authority for the proposition that delays ranging from fifteen to twenty-eight months violate the rule-of-reason requirement. Indeed, several courts have found delays of a similar length to accord with a rule of reason. See Ghadami v. United States Dep't of Homeland Sec., No. CV 19-00397 (ABJ), 2020 WL 1308376, at *8 (D.D.C. Mar. 19, 2020) (rejecting plaintiffs’ "summar[y] alleg[ations] that the twenty-five month delay is unreasonable" and noting that "many courts evaluating similar delays have declined to find a two-year period to be unreasonable as a matter of law"). Plaintiffs’ sole case citation on this issue is this Court's decision in Liu v. Mayorkas. See Hulli TRO Mot. at 13; Baldota TRO Mot. at 13. Liu, however, does not support plaintiffs’ request for preliminary relief.
For starters, Liu was decided on the government's motion to dismiss rather than the plaintiffs’ motion for a temporary restraining order. Relatedly, unlike in Liu, the government here has filed a declaration that: (i) details the rule of reason USCIS has adhered to in adjudicating the underlying immigration petitions, see Aguilera Decl. ¶¶ 18–20; (ii) attests to various circumstances that have delayed USCIS's adjudication of the present plaintiffs’ petitions, see id. ¶¶ 21–24, 27; (iii) explains that the average completion rates cited by plaintiffs "do[ ] not correspond to ... the total processing time applicants can expect to wait for a decision on their application once USCIS accepts it," see id. ¶ 26; and (iv) avers that each movant's petition is expected to be resolved within seven to fourteen days, see id. ¶ 27. By contrast, in Liu, this Court expressly declined to consider statements by USCIS officials given the limits imposed on the Court's consideration by Rule 12(b)(6). See Liu, 2021 WL 2115209, at *4.
Plaintiffs contest various aspects of the government's explanation of why certain petitions have received delayed adjudication. See Reply at 7–8. For instance, plaintiffs argue that statements made regarding visa availability are "simply ... not true," id. at 3, that the government's claim to be following a first-in, first-out approach "lack[s] plausibility and credibility," id. at 7, and that "[i]t is difficult to give credence to the stated processing time data," id. at 7. Perhaps. But on the present motion, it is plaintiffs ’ burden to establish a likelihood of success on the merits of their mandamus claim. Arguments made in briefs disputing isolated aspects of the government's declaration fall short of carrying that heavy burden.
Indeed, since the filing of the TRO motion all but two of the plaintiffs’ pending petitions have been adjudicated. See Reply 1 n.1; see also Defs. Not. of Admin. Action. Additionally, all plaintiffs have either had their underlying I-485 petitions adjudicated or had their work and travel petitions adjudicated. See Defs. Notice of Admin. Action at 2.
In sum, plaintiffs have failed to demonstrate a likelihood of success on their claim that USCIS failed to adhere to a rule of reason in adjudicating their Form I-485 petitions. The first (and most important) TRAC factor thus favors the government.
2. Remaining factors
The Court next turns to the remaining TRAC factors, which are less significant than the first. See In re Core Commc'ns, 531 F.3d at 855.
The second TRAC factor is concerned with whether Congress has provided some indication as to the speed with which it expects the agency to act. In re United Mine Workers, 190 F.3d at 549. Plaintiffs point to 8 U.S.C. § 1571(b), which provides: "It is the sense of Congress that the processing of an immigrant benefit application should be completed not later than 180 days after the initial filing of the application[.]" This "sense of Congress" is not directed towards Form I-485 petitions in particular but rather applies generally to any "immigrant benefit application." Id. And, as the government points out, "a sense of Congress resolution is not law." Emergency Coal. to Defend Educ. Travel v. U.S. Dep't of the Treasury, 545 F.3d 4, 14 n.6 (D.C. Cir. 2008). That said, the second TRAC factor asks merely whether Congress has provided an "indication of the speed with which it expects the agency to proceed." In re United Mine Workers, 190 F.3d at 549 (emphasis added). And § 1571(b) provides such an indication, at least as a general matter: immigrant benefit applications should be resolved within one hundred and eighty days. Because plaintiffs’ petitions have remained pending for longer than that period, the second TRAC factor cuts in their favor.
Consideration of the third and fifth factor overlap. See Liu, 2021 WL 2115209, at *5. Under the third factor, courts consider whether "delays that might be reasonable in the sphere of economic regulation are less tolerable because human health and welfare are at stake." In re United Mine Workers, 190 F.3d at 549. And under the fifth factor, courts "take into account the nature and extent of the interests prejudiced by delay[.]" Id.
Here, plaintiffs’ primary argument is that they will suffer significant financial, economic, and personal hardships should they lose their eligibility to participate in the EB-5 program. See Hulli Mot. for TRO at 18–19 (arguing that "[i]f [movants] were to suddenly lose their eligibility because of the sunset, all [their] sacrifice and loss would be for nothing"); Baldota Mot. for TRO at 18–19 (same). These alleged injuries are significant. For instance, the Baldota complaint alleges that, in some cases, plaintiffs have invested their life savings into the EB-5 program, Baldota Compl. ¶ 69, and Mr. Vaidyanatha avers that he "wish[es] to continue living together" with his son, who is a U.S. citizen, Vaidyanatha Decl. 1. As explained below, however, the Court is not convinced that plaintiffs face a meaningful risk of losing their eligibility to participate in the Regional Center Program. See Section III.B infra. Plaintiffs nonetheless contend that even if they are not permanently removed from the program, the delay in processing their applications is causing them increased financial risk, lost economic opportunities, and stress. While these concerns are understandable, the Court is not convinced that they rise to the level of threat to health and human welfare that warrants a temporary restraining order. Thus, on the present record, these factors weigh slightly in favor of the government.
Additionally, Mr. Vaidyanatha contends that his family has suffered an immense personal cost surrounding their inability to travel. See Vaidyanatha Decl. 1. While an inability to travel may exact a personal cost, the Court is not convinced that it warrants preliminary relief. Cf. Liuqing Zhu v. Cissna, No. CV 18-9698 PA, 2019 WL 3064458, at *4 (C.D. Cal. Apr. 22, 2019) (inability to travel did not tilt the third and fifth TRAC factors in plaintiff's favor in the context of delayed adjudication of petition for asylum); Yueliang Zhang v. Wolf, No. 19-CV-5370 (DLI), 2020 WL 5878255, at *5 (E.D.N.Y. Sept. 30, 2020) (same). Regardless, all movants have either had their underlying I-485 petition adjudicated or had their work and travel petitions approved since the filing of this lawsuit. See Defs. Notice of Admin. Action at 1–2.
The fourth factor is concerned with "the effect of expediting delayed action on agency activities of a higher or competing priority." TRAC, 750 F.2d at 80. The Circuit has highlighted the importance of this factor when conducting the TRAC analysis. See Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003) (reiterating "the importance of competing priorities in assessing the reasonableness of an administrative delay") (cleaned up). "Most courts have found that the fourth TRAC factor weighs heavily in the agency's favor when a judicial order putting plaintiffs at the head of the line would simply move all others back one space and produce no net gain." Jain, 2021 WL 2458356, at *6. So too here. Plaintiffs suggest that adjudicating their petitions "should not have any meaningful impact on competing priorities" because they have been waiting for periods that exceed the "average person-hours involved" in adjudicating the underlying petitions. Hulli Mot. for TRO at 16; see also Baldota Mot. for TRO at 17 (same). This argument misses the point. The fourth factor asks whether the Court's order will have the effect of delaying adjudication for other petitioners in the queue. The amount of time that plaintiffs have been awaiting adjudication says nothing of that possibility.
Plaintiffs also assert, without any supporting evidence, that "others have been improperly placed in front of [p]laintiffs[.]" Reply at 10. But even if they are correct, plaintiffs overlook the possibility that the Court's order would also place them in front of individuals that are properly before them in the queue.
Finally, the sixth TRAC factor, the appearance of impropriety, also tilts in the government's favor. Plaintiffs’ allegations of bad faith amount to bald assertions that USCIS's claimed processing times are "likely inflated." Hulli Mot. for TRO at 11; see also Baldota Mot. for TRO at 11 (same). Such conclusory statements fail to establish a likelihood of success.
In sum, all but the second TRAC factor favors the government. Plaintiffs have thus failed to establish a likelihood of success on the merits of their claim that USCIS has unlawfully delayed adjudication of their immigration petitions.
B. Irreparable Harm
Next, the Court considers whether plaintiffs have established that they will suffer irreparable injury absent preliminary relief. This showing requires that irreparable injury be likely as opposed to merely possible. Winter, 555 U.S. at 22, 129 S.Ct. 365. The movants have failed to make that showing, and denial of their motion for a temporary restraining order is warranted on that independent basis. See Chaplaincy of Full Gospel Churches, 454 F.3d at 297.
Movants’ theory of irreparable harm is that they will become ineligible to participate in the Regional Center Program on June 30, 2021. See Hulli TRO Mot. at 18–19; Baldota TRO Mot. at 18–19. But this injury is not likely to occur given Congress's long history of reauthorizing the Regional Center Program. In fact, legislation has already been introduced in both houses of Congress that would reauthorize the program. See S.831, 117th Cong. (2021); H.R. 2901, 117th Cong. (2021). If history is any guide, that legislation is likely to pass—the program has been reauthorized thirty-two times since its advent in 1992. See Opp. at 5–6.
Perhaps recognizing that the program is not in permanent jeopardy, plaintiffs also argue that they will be injured by any lapse in Congressional reauthorization. See Reply at 11 (arguing that any lapse would "prolong[ ] the harms [p]laintiffs are facing"). But a temporary restraining order is reserved for those plaintiffs likely to suffer irreparably absent preliminary relief. And here, the government has averred that should there be any lapse in authorization, USCIS will adhere to its typical practice of holding pending I-485 petitions in abeyance until the program receives reauthorization. Aguilera Decl. ¶ 26. Meanwhile, individuals with approved I-526 petitions and pending I-485 petitions (such as plaintiffs) will remain eligible to apply for work and travel authorization documents. Id. ¶ 10. Plaintiffs attempt to cast doubt on the agency's assurances on the grounds that "it is not clear" that the government's declarant, Mr. Aguilera, "has the authority to bind the agency, make policy decisions, or set procedures[.]" Reply at 11. Yet movants do not dispute the legal basis for Mr. Aguilera's statements. See 8 U.S.C. § 1182(d)(5) ; 8 C.F.R. §§ 274a.12(c)(9), 245.2(a)(4). And Mr. Aguilera, who is a Supervisory Immigration Services Officer at USCIS's California Service Center, where plaintiffs’ petitions are pending, appears competent to testify about plaintiffs’ immigration status. See Aguilera Decl. ¶¶ 1–3 (averring that he has "access to the official records and databases of USCIS[,]" has "reviewed agency records and databases" regarding the plaintiffs in this case, and "could and would competently testify" if called as a witness). Plaintiffs’ bald assertions as to Mr. Aguilera's level of authority at USCIS do not undermine the competence of his sworn declaration.
IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that [8] Plaintiffs’ Motion for a Temporary Restraining Order is DENIED.
SO ORDERED .