Sheiner v. Mayorkas

Background

Gabrielle Helen Sheiner alleged that U.S. Citizenship and Immigration Services (USCIS) unreasonably delayed deciding her Form I-526 immigrant-investor petition. She filed the petition on June 14, 2019, after investing $500,000 in a new commercial enterprise through the EB-5 Regional Center Program. According to the complaint, the investment was connected to a project in a targeted employment area.

Sheiner alleged that her petition had been pending for approximately forty-five months when she filed this action. She stated that the delay prevented her from applying for conditional lawful permanent resident status and created uncertainty about her future, career, and investment. She also alleged that USCIS had reduced its processing rate, increased processing times, and allowed its backlog to grow despite having more staff and fewer incoming petitions.

She asserted claims under the Administrative Procedure Act, which allows a court to require an agency to act when it has unlawfully withheld or unreasonably delayed action. She also sought an order under the Mandamus Act requiring USCIS to adjudicate her petition. USCIS moved to dismiss the complaint for failure to state a legally sufficient claim under Federal Rule of Civil Procedure 12(b)(6).

The court’s analysis of the delay claim

The court applied the six-factor test from Telecommunications Research and Action Center v. FCC, commonly called the TRAC factors, to decide whether the alleged agency delay was unreasonable.

The first factor asks whether the agency’s timing is governed by a reasonable method. The court held that USCIS’s “visa availability” system qualified as a reasonable method. Under that system, USCIS prioritized petitions from countries where visas were available or expected to become available and generally processed qualifying petitions in filing order. The court rejected Sheiner’s arguments that her Canadian citizenship, the approval of the related enterprise, USCIS’s general processing rate, and the overall waiting time showed an unreasonable delay. The court also found that her allegations did not plausibly show that USCIS was failing to follow its stated system.

The second factor considers whether Congress indicated how quickly the agency should act. The court found that this factor favored Sheiner because federal law expressed a congressional goal of completing immigration-benefit applications within 180 days, and other statutory provisions identified processing goals of up to 240 days. The court nevertheless treated those timeframes as nonbinding and held that they did not automatically make the delay unreasonable.

The court considered the third and fifth factors together because they concern the interests harmed by delay. The court held that these factors favored USCIS. Although Sheiner alleged uncertainty about her future, career plans, and investment, the court found that she had not alleged significant harm to her health or welfare. It also concluded that the risks associated with a material change to the investment were inherent in the EB-5 application process and affected other investors as well.

The fourth factor considers whether giving one applicant faster treatment would interfere with agency priorities or disadvantage other applicants. The court held that this factor favored USCIS because ordering faster action on Sheiner’s petition could move her ahead of other petitioners. The court rejected her argument that USCIS could instead be ordered to increase its overall processing rate, finding that she had not plausibly alleged unreasonable agency delay on a broader scale.

The sixth factor asks whether the agency acted improperly, although a finding of improper conduct is not required to establish unreasonable delay. The court treated this factor as neutral because Sheiner’s allegations of intentional delay were not supported by enough factual detail to be plausible.

Overall, the first, third, fourth, and fifth factors favored USCIS; the second favored Sheiner; and the sixth was neutral. The court therefore granted USCIS’s motion to dismiss the Administrative Procedure Act claim.

Mandamus claim and disposition

The court also dismissed Sheiner’s mandamus claim. Mandamus is an extraordinary court order requiring a federal official or agency to perform a duty owed to the plaintiff. The court held that Sheiner had not exhausted other available remedies because relief remained available under the Administrative Procedure Act. It also relied on the principle that a mandamus claim duplicating an Administrative Procedure Act claim should be dismissed.

The court granted USCIS’s motion to dismiss both claims, directed the Clerk to terminate the motion, and closed the case. The opinion does not state that the dismissal was with or without prejudice.