Jain v. Jaddou

Background

The ten plaintiffs are foreign nationals who filed Form I-526 petitions under the EB-5 immigrant investor program. That program can lead to lawful permanent residence when an investor makes the required investment and creates at least ten full-time jobs. Each plaintiff filed a petition in 2019 through the Regional Center program and invested at least $500,000. The plaintiffs are nationals of India, the Czech Republic, Afghanistan, Nigeria, Canada, and the United Kingdom.

The Regional Center program’s authorization expired on June 30, 2021. USCIS stopped adjudicating Regional Center petitions during the lapse and placed pending petitions on hold. Congress reauthorized a reformed program in March 2022, and USCIS resumed processing qualifying petitions filed before the lapse. When the complaint was filed, the plaintiffs’ petitions had been pending between 17 and 25 months. By the time of the summary-judgment proceedings, they had been pending between 40 and 48 months.

The plaintiffs claimed that USCIS had unreasonably delayed adjudicating their petitions, in violation of the Administrative Procedure Act. They sought an order declaring the delays unreasonable and requiring USCIS to adjudicate their petitions within 30 days. USCIS moved for summary judgment, and the plaintiffs filed a cross-motion for summary judgment.

Summary-judgment record

The plaintiffs argued that USCIS had not produced an adequate administrative record. The court rejected that argument because this lawsuit sought to compel agency action that had not yet occurred, rather than challenge a final agency decision. The court also noted that it had told the plaintiffs they could seek additional discovery through a specific procedure under Federal Rule of Civil Procedure 56(d), but they did not file that motion. The court therefore rejected the request to deny USCIS summary judgment on the ground that the record was incomplete.

Unreasonable-delay analysis

The Administrative Procedure Act allows a court to compel an agency to act when the agency has a clear and mandatory duty to take a discrete action and has unreasonably delayed doing so. The parties agreed that USCIS had a mandatory duty to adjudicate the plaintiffs’ petitions. The disputed issue was whether the delay was unreasonable.

The court applied the six factors from Telecommunications Research & Action Center v. Federal Communications Commission, commonly called the TRAC factors:

1. Rule of reason. The court found that USCIS’s visa-availability approach was a reasonable, fair, and orderly method for processing Form I-526 petitions. The approach considers visa availability by country, whether the relevant commercial enterprise has already been reviewed, and filing order. The first factor favored USCIS.

2. Congressional indication of timing. Congress had not imposed a binding deadline for deciding these petitions. But the court found that congressional provisions indicated an expectation that adjudications would generally occur in months, not years. Because the plaintiffs had waited 40 to 48 months, or 32 to 40 months excluding the period when the program lacked authorization, this factor favored the plaintiffs.

3. Health and welfare interests. The plaintiffs described economic, lifestyle, and immigration-related harms, including difficulty supervising investments, stress, and inability to obtain some benefits associated with permanent residence. The court found that these interests did not rise to the level of serious health or welfare concerns supporting relief. The third factor favored USCIS.

4. Effect of expediting the plaintiffs’ petitions. Ordering USCIS to decide the plaintiffs’ petitions within 30 days would move them ahead of other petitioners, including some who had waited longer. The court found that such an order would interfere with USCIS’s ability to set priorities and allocate resources. The fourth factor favored USCIS.

5. Interests harmed by delay. The court considered this factor together with the health-and-welfare factor and reached the same conclusion: the plaintiffs had not shown interests sufficiently serious to favor expedited relief. The fifth factor favored USCIS.

6. Impropriety. The plaintiffs argued that USCIS had acted improperly by suspending processing during the authorization lapse, expediting petitions connected to the Appalachian EB-5 Regional Center, diverting adjudication resources to fraud-detection personnel, and failing to track processing metrics in the manner the plaintiffs preferred. The court found no evidence that the authorization lapse made the suspension unlawful, no evidence that the Appalachian Center decisions were a political favor, and no showing that USCIS unlawfully diverted adjudication resources or violated a requirement concerning metrics. The court also found no evidence of bad faith or utter indifference to a statutory deadline. This factor did not favor the plaintiffs.

Disposition

The court concluded that the first, third, fourth, and fifth factors favored USCIS; the second favored the plaintiffs; and the sixth did not affect the analysis. On the summary-judgment record, the court held that USCIS’s delay was not unreasonable as a matter of law and that the plaintiffs were not entitled to relief under the Administrative Procedure Act. Judge Demarchi granted USCIS’s motion for summary judgment and denied the plaintiffs’ cross-motion for summary judgment.