Kaur v. Mayorkas

Background

Aman Kaur and Sneha Dsouza sued U.S. Citizenship and Immigration Services (USCIS), Alejandro Mayorkas in his official capacity as Secretary of the Department of Homeland Security, and Ur Mendoza Jaddou in her official capacity as USCIS Director. Kaur and Dsouza alleged that USCIS had unreasonably delayed deciding their Form I-526 petitions under the EB-5 immigrant investor program. Each had filed a petition in 2019 after making a direct $500,000 investment in a project involving two restaurants and a gas station in Dunnigan, California. They alleged that their investments met the program’s requirements and that their petitions had remained undecided for approximately 31 months when they filed the complaint.

The plaintiffs sought relief under the Administrative Procedure Act (APA), which allows courts to require an agency to act when it has unlawfully withheld or unreasonably delayed action. They also sought a court order under the federal mandamus statute requiring the defendants to decide their petitions within 15 days. The defendants moved to dismiss under Rule 12(b)(6), arguing that the complaint did not state a legally sufficient claim.

APA Claim

The court evaluated the alleged delay using six factors from Telecommunications Research & Action Center v. FCC, commonly called the TRAC factors. The factors consider whether the agency follows a reasonable decision-making approach, whether Congress indicated a timetable, whether health or welfare is affected, how expediting one case would affect competing agency priorities, the interests harmed by delay, and whether the agency acted improperly.

The court found that the first and fourth factors strongly favored the Government. Since March 2020, USCIS had used a “visa availability” approach for Form I-526 petitions: it first prioritized applications from countries where visas were available or soon would be available, and then generally processed those applications in filing-date order. The court held that this approach was a reasonable system governing USCIS’s processing times. It also concluded that ordering USCIS to decide the plaintiffs’ petitions immediately would move them ahead of other similarly situated applicants and divert agency resources from other cases.

The second factor favored the plaintiffs because a federal statute expresses Congress’s expectation that immigration benefit applications generally be processed within 180 days, although the court treated that language as nonbinding. The third and fifth factors also favored the plaintiffs slightly. The court accepted the allegations that the delay caused stress, uncertainty, and limits on travel, including Kaur’s allegation that she could not travel to India to marry without abandoning her adjustment-of-status application. But the court found that the alleged harms were largely inherent in the immigration application process and did not show that the delay had jeopardized either plaintiff’s career, ability to remain in the United States, or health.

The sixth factor was neutral. The plaintiffs’ allegation that they had paid a filing fee but had not received a decision did not plausibly suggest that USCIS had acted improperly or in bad faith. Weighing the factors together, the court concluded that the complaint did not plausibly allege an unreasonable delay under the APA.

Mandamus Claim

Mandamus is an extraordinary remedy used to compel a federal official or agency to perform a clear, nondiscretionary duty. The court dismissed the mandamus claim because it sought the same relief as the APA claim, and the plaintiffs had not established a basis for mandamus after failing to state an APA claim.

Disposition

Judge Paul A. Engelmayer granted the defendants’ motion to dismiss and dismissed the complaint, without prejudice. The court explained that the plaintiffs’ APA claims could become stronger as the petitions remained pending and said they could file an amended complaint in this case or bring a separate case. The court retained jurisdiction and ordered the parties to file joint status updates every four weeks regarding the Form I-526 petitions. The Clerk of Court was directed to terminate all pending motions.