Jain v. Jaddou
| Decision Date | 31 March 2023 |
| Docket Number | 21-cv-03115-VKD |
| Parties | SAURABH JAIN, et al., Plaintiffs, v. UR M. JADDOU, Defendant. |
| Court | U.S. District Court — Northern District of California |
Plaintiffs are ten foreign nationals who applied for immigrant visas under the immigrant investor visa program known as “EB-5.” 8 U.S.C. § 1153(b)(5). They allege that U.S. Citizenship and Immigration Services (“USCIS”) has unreasonably delayed adjudication of their Form I-526 petitions, and they seek judicial review of the agency's action under the Administrative Procedure Act, 5 U.S.C. §§ 555(b), 706(1). Dkt. No. 1 ¶¶ 195-200.
In May 2021, plaintiffs moved for a preliminary injunction. Dkt. No 14. The Court denied the motion. Dkt. No. 33. On July 16 2021, USCIS filed a motion to dismiss plaintiffs' complaint. Dkt. No. 36. Before the Court could hear the motion, the parties stipulated to stay this case, pending Congressional reauthorization of funding for the EB-5 visa program. See Dkt. No. 38. The Court granted the stay and administratively closed the case. Dkt. Nos. 39, 41. On March 30, 2022, the Court re-opened the case, and USCIS withdrew its motion to dismiss. Dkt. Nos. 43, 44.
On August 18, 2022, USCIS moved for summary judgment. Dkt. No. 56. Plaintiffs opposed the motion and cross-moved for summary judgment. Dkt. No. 59. On November 1, 2022, the Court held a hearing on the parties' motions. Dkt. No. 64. Following the hearing, and at the Court's direction, USCIS filed a sur-reply.[1] Dkt. Nos. 66, 69.
For the reasons stated below, the Court grants USCIS's motion for summary judgment, and denies plaintiffs' cross-motion for summary judgment.
Unless otherwise indicated, the following facts are not genuinely disputed.
The EB-5 immigrant investor visa program provides a path for immigrant investors and their family members to obtain lawful permanent residence in the United States if they invest in new commercial enterprises (“NCEs”) that create full-time employment for at least 10 U.S. workers. 8 U.S.C. § 1153(b)(5). At the time relevant to these proceedings, if a non-citizen investor chose to invest in an NCE in a “targeted employment area,”[2] he or she would have to invest at least $500,000.[3] 8 U.S.C. § 1153(b)(5)(C).
One way that a non-citizen may participate in the EB-5 program is by investing in a designated “Regional Center” NCE. See Dep't of Commerce, et al., Appropriations Act, 1993, Pub. L. No. 102-395, § 610(a) (“Appropriations Act of 1993”) (Oct. 6, 1992), as amended. Multiple investors may invest in the same Regional Center, and they may satisfy the employment creation requirement by establishing that the investment will create a sufficient number of jobs indirectly, as demonstrated by accepted, reasonable methodologies.[4] See 8 C.F.R. § 204.6(m)(7)(ii).
The Regional Center program was temporary, and its continuation required reauthorization by Congress. See Appropriations Act of 1993 § 610(b). Since its advent in 1992, the program has been reauthorized many times. See Holly Straut-Eppsteiner, Congressional Research Service Report on the EB-5 Immigrant Investor Visa (updated June 8, 2021), https://crsreports.congress.gov/product/pdf/IF/IF11848.
Congressional authorization for the Regional Center program expired in accordance with its then-existing terms on June 30, 2021. Consolidated Appropriations Act of 2021, Pub. L. 116120, div. O, title I, § 104, 134 Stat. 1182, 2148 (). Once the program lapsed, USCIS stopped adjudicating Regional Center-based Form I-526 petitions. USCIS placed then-pending petitions on hold, allowing petitioners, including plaintiffs, to maintain their place in the adjudication workflow. See Dkt. No. 56-2, Ex. 11 at 4-5 (USCIS, EB-5 Reform & Integrity Act of 2022 Listening Session (Apr. 29, 2022).
In March 2022, President Biden signed a Consolidated Appropriations Act, see Pub. L. No. 117-103, which included the EB-5 Reform and Integrity Act of 2022 and provided authority for a reformed Regional Center program through September 30, 2027. See Dkt. No. 56-3, Ex. 12 (USCIS, EB-5 Immigrant Investor Program (Apr. 19, 2022)); see also 8 U.S.C. § 1153(b)(5)(E)(i). The EB-5 Reform and Integrity Act repeals prior legislation authorizing the Regional Center program, but includes certain “grandfathering” provisions which permit adjudication of Form I-526 petitions filed before March 15, 2022, according to the eligibility requirements in place at the time such petitions were filed. See Dkt. No. 56-3, Ex. 6. Accordingly, since enactment of this new legislation, USCIS has resumed processing Regional Center-based Form I-526 petitions filed on or before expiration of the statutory authorization of the legacy Regional Center program. Id.
USCIS has a backlog of pending Form I-526 petitions. Over the past few years, the pace of the agency's processing of petitions has declined and the backlog has grown. For example, USCIS completed adjudication of over 12,000 petitions in FY 2017[5] and over 15,000 petitions in FY 2018, but adjudicated only 4,492 petitions in FY 2019 and only 3,421 petitions in FY 2020. Dkt. No. 1-3 at 3 (). Meanwhile, USCIS reported average processing times of 16.6 months for petitions adjudicated in FY 2017 but 31.2 months for petitions adjudicated in FY 2020. See Historical National Median Processing Time (in Months) for All USCIS Offices for Select Forms by Fiscal Year, https://egov.uscis.gov/processing-times/historic-pt) (last visited: March 31, 2023). As of November 2022, USCIS reports processing times for immigrant investors, other than those from mainland China, ranging from 46 months (for India) to a high of 58.5 months (for the rest of the world). Dkt. No. 68 at 3-4.
Until recently, USCIS reviewed and adjudicated Form I-526 petitions on a “first in, first out” basis-i.e., the petitions were processed in the order of filing. Dkt. No. 56-3, Ex. 4, at 1-2. In the spring of 2020, USCIS announced the adoption of a “visa availability” approach to processing these petitions. Dkt. No. 56-3, Ex. 3 (“USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory”). This approach takes into account the availability of visas for an immigrant's country of chargeability (typically, the country of birth) and gives highest priority to petitions for which visas are or soon will be available.[6] See id. After considering the availability of visas, USCIS considers several other factors, including whether the relevant NCE has already been reviewed and when the petition was filed (i.e., “first in, first out”). Dkt. No. 56-3, Ex. 4 ¶¶ A1, A14 (“Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach”). The parties disagree regarding whether and to what extent USCIS deviates from this published review process.
Plaintiffs are nationals of India, the Czech Republic, Afghanistan, Nigeria, Canada, and the United Kingdom. See Dkt. No. 1-1 (plaintiffs' declarations). Each plaintiff filed a Form I-526 petition in 2019 as part of the EB-5 Regional Center program and invested at least $500,000 in an NCE in an effort to qualify for a visa. Dkt. No. 56-1 ¶ 25; Dkt. No. 1 ¶¶ 90-92 (Jain), 101-03 (Saraf), 112-14 (Bleach), 123-25 (Khan), 134-36 (Nwankor), 144-46 (Shahand), 153-55 (Arora), 162-64 (Donocik), 172-74 (Bhandari), 183-85 (Grundleger). Plaintiffs Khan, Shahand, Jain, Donocik, Bhandari, Grundleger, and Saraf currently reside in the United States in lawful nonimmigrant status. Dkt. No. 56-1 ¶ 30. The remaining plaintiffs (Arora, Bleach, and Nwankor) reside outside the United States. Id.
At the time the complaint was filed, plaintiffs' Form I-526 petitions had been pending for between 17 months and 25 months. Dkt. No. 56-1 ¶ 25; Dkt. No. 1 ¶¶ 91, 102, 113, 124, 135, 145, 154, 163, 173, 184. Now, plaintiffs' petitions have been pending for between 40 and 48 months. See Dkt. No. 56-1 ¶ 25.
A party may move for summary judgment on a “claim or defense” or “part of . . . a claim or defense.” Fed.R.Civ.P. 56(a). Summary judgment is appropriate when, after adequate discovery, there is no genuine issue as to any material facts and the moving party is entitled to judgment as a matter of law. Id.; see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003).
On an issue where the nonmoving party will bear the burden of proof at trial, the moving party may discharge its burden of production either (1) by “produc[ing] evidence negating an essential element of the nonmoving party's case” or (2) after suitable discovery, by “show[ing] that the nonmoving party does not have enough evidence of an...
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