Behring Regional Center LLC v. Mayorkas

Background

The EB-5 immigrant-investor visa program allows qualifying immigrants to seek permanent residency by investing in commercial enterprises and creating jobs in the United States. A regional center is an entity that pools investments and directs them toward projects intended to promote economic growth and job creation.

Congress created the regional-center program in 1992 as a pilot program through an appropriations law. Congress repeatedly extended the program, and more than 600 regional centers were operating by 2021. In March 2022, Congress enacted the Reform and Integrity Act, which reauthorized and substantially changed the program, including by adding oversight and anti-fraud requirements.

After the Act took effect, U.S. Citizenship and Immigration Services (USCIS) announced that regional centers previously authorized under the 1992 law were no longer authorized. USCIS created a new process for prospective regional centers to seek authorization. Behring Regional Center, which operated under the earlier program, sued under the Administrative Procedure Act (APA), arguing that USCIS wrongly interpreted the Act as automatically ending existing regional centers’ authorization.

Behring sought a preliminary injunction, which is temporary court-ordered relief intended to preserve the parties’ positions while litigation continues. The requested injunction would prevent USCIS from treating Behring and other previously authorized regional centers as deauthorized. Behring had also submitted a new application under the agency’s process, but USCIS had not ruled on it.

Court’s Analysis

To obtain a preliminary injunction, Behring had to show a likelihood of success on the merits, likely irreparable harm without relief, a favorable balance of hardships, and that an injunction would serve the public interest.

The court found that Behring made an “exceedingly strong showing” that USCIS violated the APA. The Integrity Act requires new regional-center proposals to meet various requirements, but it does not clearly say whether those requirements apply by forcing already existing centers to start over. Other provisions recognize the continuing validity of certain previously approved business plans and provide ways to regulate, suspend, or terminate existing centers. The court also found that the Act’s title—“Reauthorization and Reform of the Regional Center Program”—supported the view that Congress had not clearly ordered the automatic deauthorization of existing centers.

USCIS relied primarily on the Act’s repeal of the earlier statutory language. The court concluded that this reliance placed too much weight on the word “repeal.” The court held that the Act was silent or ambiguous about the status of existing regional centers and that USCIS had not considered the competing interests or independently decided how those centers should be treated. Instead, USCIS acted on an erroneous view that the Act compelled deauthorization. The court therefore found that Behring was very likely to succeed on its claim that the agency’s action was arbitrary and capricious under the APA.

The court also found irreparable harm. Behring said that the agency’s decision prevented it from raising capital or making financing commitments for new projects and threatened its continued existence. The court further determined that financial losses could be irreparable because Behring could not recover damages from the federal government absent a waiver of sovereign immunity.

Finally, the court found that the balance of hardships and public interest favored relief. The public has an interest in requiring agencies to follow the APA and faithfully apply Congress’s laws. The court concluded that immigration-related administrative interests did not outweigh that concern here.

Ruling and Remedy

The court granted Behring’s motion for a preliminary injunction. USCIS was preliminarily enjoined from treating previously designated regional centers as deauthorized based on its interpretation of the Integrity Act. The injunction applied to the previously designated regional centers generally, not only to Behring, because limiting relief to Behring would give it an unfair advantage and would not match the likely remedy if the agency’s action were ultimately set aside.

The injunction requires the centers to be permitted to operate within the framework created by the Integrity Act. The order specifically stated that USCIS must process new I-526 petitions from immigrants investing through previously authorized regional centers, as it would for a newly approved regional center. The agency may still take reasonable steps to ensure that existing regional centers comply with the Act.

The injunction remains in place until the earlier of a ruling on summary judgment by the court or a reasoned agency decision about how the Integrity Act applies to existing regional centers. Judge Vince Chhabria did not finally decide which treatment the agency must adopt after that process; he ruled that USCIS could not deauthorize the centers without reasoned decision-making consistent with the APA.