Nadhar v. Renaud
| Decision Date | 11 June 2021 |
| Docket Number | No. CV-21-00275-PHX-DLR,CV-21-00275-PHX-DLR |
| Parties | Maria Robien Nadhar, et al., Plaintiffs, v. Tracy Renaud, Defendant. |
| Court | U.S. District Court — District of Arizona |
Plaintiffs are ten foreign nationals who have sued Defendant Tracy Renaud, the Acting Director of the United States Citizenship and Immigration Services ("USCIS"), alleging that USCIS has unreasonably delayed adjudicating their Form I-526 immigrant investor visa petitions in violation of the Administrative Procedures Act ("APA"). (Doc. 7.) At issue is Plaintiffs' motion for a preliminary injunction (Doc. 20), which is fully briefed (Docs. 26, 31) and will be denied.1
The EB-5 Immigrant Investor Program allots visas to foreign nationals who have invested a certain amount of capital in new commercial enterprises that create at least ten full-time jobs for United States citizens or those lawfully authorized to work in the country. 8 U.S.C. § 1153(b)(5). Foreign investors seeking EB-5 visas must petition USCIS for classification as an EB-5 investor using Form I-526. 8 C.F.R. § 204.6(a). "Successful adjudication and approval of an I-526 petition makes a petitioner eligible for a visa, but does not automatically provide a visa." Nohria v. Renaud, No. 20-cv-2085, 2021 WL 950511, at *2 (D.D.C. Mar. 14, 2021). Instead, an approved Form I-526 allows a foreign investor to apply for two-year conditional lawful permanent resident ("LPR") status. 8 U.S.C. § 1186b(a). After two years, a petitioner seeking permanent LPR status Wang v. USCIS, 375 F. Supp. 3d 22, 26 (D.D.C. Apr. 19, 2019).
The Immigration and National Act places annual per-country caps on employment-based visas. 8 U.S.C. § 1152. When demand exceeds the supply of visas, a waiting list forms. A petitioner's place on this waiting list is typically determined by the date her petition was filed, known as the "priority date." 8 U.S.C. § 1153(e); 22 C.F.R. § 42.54. A petitioner becomes eligible for a visa when her priority date is listed for her country and visa category in the State Department's monthly Visa Bulletin. See Nohria, 2021 WL 950511, at *2.
Until recently, USCIS managed Form I-526 petitions on a first-in, first-out ("FIFO") basis. In March 2020, however, USCIS instituted a new "visa availability" process. USCIS now prioritizes the petitions of immigrants from countries where visas are immediately or soon-to-be available. Among Form I-526 petitions designated for priority, USCIS then factors in whether the underlying commercial enterprise has been reviewed.At that point, petitions are adjudicated on a FIFO basis. Under the previous FIFO method, approved petitions sometimes sat unused while the applicant waited for a visa. According to USCIS, this new process allows petitioners from countries where visas are immediately available to better use their annual allotment of visas. (Doc. 15 at 5-6); See Citizenship and Immigration Servs., USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory, https://www.uscis.gov/news/news-releases/uscis-adjusts-process-for-managing-eb-5-visa-petition-inventory (last visited June 11, 2021).
This lawsuit was filed on February 12, 2021 by four EB-5 Program participants. (Doc. 1.) An amended complaint was filed on March 10, 2021, adding six more plaintiffs. (Doc. 7.) According to the amended complaint, Plaintiffs each filed a Form I-526 petition that remains unadjudicated by USCIS, and each is eligible to immediately apply for LPR status upon approval of their petitions. At the time of the filing of the amended complaint, Plaintiffs' petitions had been pending for between 15 and 52 months (three more months have since lapsed). Plaintiffs allege that the delays they have experienced are part of a deliberate slowdown in the processing of Form I-526 petitions. Plaintiffs note that, in recent years, USCIS has received fewer Form I-526 petitions and has increased its staffing, yet it has adjudicated fewer and fewer petitions and has steadily increased its estimated processing times. Plaintiffs also allege that USCIS has reassigned staff away from processing Form I-526 petitions and has given preferential, expedited treatment to petitioners who have invested in certain projects that ostensibly are deemed to be in the national interest. According to Plaintiffs, these allegations collectively demonstrate that USCIS has a common policy or practice to withhold or delay the adjudication of Form I-526 petitions.
The specific EB-5 Program in which Plaintiffs are participating is scheduled to expire on June 30, 2021 unless reauthorized by Congress. (Doc. 20-1 at 2-3.) Accordingly, Plaintiffs have moved for a preliminary injunction in the form of an order directing USCIS to adjudicate their petitions by June 20, 2021. Plaintiffs argue that, in the absence of a preliminary injunction, they "will lose the immigrant visa they filed for years ago." (Id. at16.)
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20. These elements may be balanced on a sliding scale, whereby a stronger showing of one element may offset a weaker showing of another. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131, 1134-35 (9th Cir. 2011). However, the sliding-scale approach does not relieve the movant of the burden to satisfy all four prongs for the issuance of a preliminary injunction. Id. at 1135. When "a party seeks mandatory preliminary relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely cautious about issuing a preliminary injunction." Martin v. Int'l Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984). Generally, "mandatory injunctions are not granted unless extreme or very serious damage will result and are not issued in doubtful cases[.]" Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (internal quotation and citation omitted).
The APA requires an agency to act on a matter presented to it within a reasonable time. 5 U.S.C. § 555(b). Courts may "compel agency action unlawfully withheld or unreasonably delayed." Id. § 706(1). To determine whether an agency action has been unreasonably delayed, the Court considers In re Natural Resources Defense Council, Inc., 956 F.3d 1134, 1138 (9th Cir. 2020). These factors are:
Desai v. USCIS, No. 20-1005 (CKK), 2021 WL 1110737, at *4 (D.D.C. Mar. 22, 2021) (citations omitted).
The first TRAC factor is the most important, and it favors Defendant. USCIS's visa availability approach to prioritizing Form I-526 adjudications constitutes a rule of reason, as several other courts have persuasively recognized. See, e.g., Desai, 2021 WL 1110737, at *5; Thakker v. Renaud, No. 20-cv-1133 (CKK), 2021 WL 1092269, at *6 (D.D.C. Mar. 22, 2021); Nohria, 2021 WL 950511, at *6 n.5; Palakuru v. Renaud, No. 1:20-cv-02065 (TNM), 2021 WL 674162, at *4 (D.D.C. Feb. 22, 2021). Plaintiffs argue that, although USCIS has articulated a rule of reason, it is not applying that rule because it is processing fewer and fewer petitions. Plaintiffs have raised fair concerns about a precipitous decline in productivity at USCIS, but it does not necessarily follow that these declines are attributable to USCIS not following its rule of reason. Plaintiffs bear the burden of establishing a likelihood of success on the merits, and at present they are have not made a strong enough showing that USCIS is deliberately withholding or delaying adjudication of Form I-526 petitions.
The fourth TRAC factor, which courts also weigh heavily in unreasonable delay cases, likewise favors Defendant. Were the Court to order Defendant to expedite the processing of Plaintiffs' petitions, the effect likely would be to move Plaintiffs to the frontof the line and all other similarly situated petitioners back. See Palakuru, 2021 WL 674162, at *5. Although Plaintiffs allege that they have been treated differently than similarly situated petitioners, they do not provide evidence to support this allegation.2 Nor have Plaintiffs shown that there is something special about their petitions that justifies leapfrogging over other similarly situated petitioners who have not sued.
The second TRAC factor slightly favors Plaintiffs. "It does...
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