Echegoyen Cohen v. Renaud

Background

Eduardo Echegoyen Cohen filed an I-526 petition for an EB-5 immigrant investor visa on October 23, 2019. He had invested $500,000 in a limited partnership formed to invest in developing and operating a hotel project in New York City. He sought lawful permanent resident status based on that investment.

Cohen filed this lawsuit on June 7, 2021, against the director of U.S. Citizenship and Immigration Services (USCIS). The opinion explains that Tracy Renaud was initially named as the acting director and that Ur M. Jaddou was later substituted as USCIS director. Cohen sought an order requiring USCIS to adjudicate his pending petition. He alleged that the delay violated the Administrative Procedure Act (APA), which permits courts to review agency action that is unreasonably delayed, and the Mandamus Act, which allows courts in limited circumstances to compel a federal officer or agency to perform a required duty.

USCIS moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Cohen had not adequately alleged that the processing delay was unreasonable.

APA Claim

The court evaluated the alleged delay using six factors developed by the D.C. Circuit and used by courts in this district to assess unreasonable agency delay. These factors consider the agency’s governing decision-making standard, any congressional timetable, effects on health and welfare, competing agency priorities, prejudice caused by the delay, and agency misconduct.

The court held that USCIS’s “visa availability” approach was a reasonable system for prioritizing EB-5 petitions. Under that approach, USCIS gives priority to petitions for which visas are currently or soon available, then generally processes petitions on a first-in, first-out basis. The court concluded that Cohen’s allegation that visas were immediately available for applicants from El Salvador did not show that USCIS had failed to follow this system. Other petitions involving available visas could have been filed earlier and remained ahead of his petition in the queue.

The court also found that the approximately 41-month period cited by Cohen did not establish an unreasonable delay as a matter of law. Nine months of that period occurred while Congress had not renewed USCIS’s statutory authority to process regional-center EB-5 petitions, leaving approximately 32 months when USCIS could process the petition. The court further noted that USCIS reported completing 80 percent of I-526 petitions from countries other than China and India within 58.5 months.

The court treated the congressional statement that immigration benefit applications should generally be completed within 180 days as an indication of Congress’s goal, not as a binding deadline. The court found that Cohen’s alleged employment and travel restrictions slightly favored him, but that the allegations did not involve health or human-safety concerns and reflected limitations associated with the application process. The factor concerning the effect of expedited adjudication favored USCIS because moving Cohen ahead could displace other applicants and undermine the agency’s queue system. The agency-impropriety factor was neutral because Cohen did not allege misconduct, although the court stated that proving an improper motive was not required.

Balancing the factors, the court concluded that Cohen had not plausibly alleged an unreasonable delay under the APA. The court dismissed that claim without prejudice because the dismissal rested on the adequacy of his factual allegations.

Mandamus Claim

The court also dismissed Cohen’s mandamus claim. To obtain mandamus relief, a plaintiff must show a clear right to the requested relief, a plainly defined and mandatory government duty, and the absence of another adequate remedy. The court held that Cohen could not pursue mandamus because the APA offered an adequate alternative remedy, even though the court had found that he had not adequately pleaded his APA claim.

Disposition

Judge Paul A. Crotty granted USCIS’s motion to dismiss without prejudice to its renewal if Cohen’s application remained pending for an unreasonable period. The clerk was directed to close the motion and the case.