Keller Wurtz v. United States Citizenship and Immigration Services

Background

Ana Ingrid Keller Wurtz alleged that she filed a Form I-526 petition for an EB-5 investor visa on June 29, 2018, after investing $500,000 in a hotel project in Oregon. She alleged that USCIS had not acted on the petition during the following two years, even though USCIS had approved other investors’ petitions involving the same project and had granted the project “exemplar” status. She sought an order requiring USCIS to act on her petition within 15 days.

Keller Wurtz brought one claim under the Administrative Procedure Act and the federal mandamus statute. The Administrative Procedure Act allows a court to require an agency to act when it has unlawfully withheld or unreasonably delayed required action. The opinion uses “USCIS” to refer collectively to the defendants, including USCIS, Acting Secretary of Homeland Security Chad Wolf, and Senior Official Performing the Duties of the Director of USCIS Kenneth Cuccinelli in their official capacities.

Keller Wurtz alleged that the delay prevented her from traveling internationally, caused her to miss business travel, and prevented her from visiting her elderly father in Mexico. She also alleged that renewing the passport stamp for her temporary E-2 visa could require her to remain in Mexico for months and that renewal was uncertain.

Motion to Dismiss

USCIS moved to dismiss under Rule 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. USCIS argued that courts had found immigration-processing delays of up to four years reasonable, that Keller Wurtz’s application was within normal processing times, and that requiring expedited processing could delay other applications.

Keller Wurtz argued that Congress had stated an expected 180-day processing period for immigration-benefit applications, that USCIS’s processing times had increased, and that the complaint showed no justification for the alleged two-year period of inaction.

Court’s Analysis

The court applied the factors commonly called the TRAC factors to assess whether an agency’s delay may be unreasonable. Those factors address the agency’s general timing rule, any congressional timetable, the interests harmed by delay, the effect of expedited action on competing agency priorities, and whether improper conduct is involved.

The court held that the complaint was sufficient to proceed. It found that the first factor—a general rule of reason—favored Keller Wurtz because the complaint alleged about two years of inaction despite the project’s exemplar approval, and nothing in the complaint showed that the inaction was reasonable. The court also found that the congressional 180-day goal favored Keller Wurtz, although it was not mandatory.

The court found that the nature of Keller Wurtz’s alleged interests also favored her, though not as strongly as in cases involving persecution, medical consequences, or more severe harm. The effect of granting relief on other applications was neutral because the pleadings did not establish that USCIS was processing applications at a reasonable pace or prioritizing them reasonably. The absence of an allegation of improper conduct did not require dismissal because improper motive is not necessary to establish unreasonable delay.

The court emphasized that it was considering only the complaint and facts subject to judicial notice. It stated that the precise sources of the delay and whether the delay was actually unreasonable would be better considered on a fuller evidentiary record. The court did not resolve disputed factual issues.

Disposition

Chief Magistrate Judge Joseph C. Spero denied USCIS’s motion to dismiss. The claim therefore was not dismissed at the pleading stage; the order did not itself require USCIS to decide Keller Wurtz’s application within a particular deadline.