Van Nu Tu Truong v. United States Citizenship & Immigration Servs.

• Decision Date: 01 December 2022
• Docket Number: Civil Action 21-316 (RC)
• Parties: VAN NU TU TRUONG, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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VAN NU TU TRUONG, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

Civil Action No. 21-316 (RC)

United States District Court, District of Columbia

December 1, 2022

MEMORANDUM OPINION

RE DOCUMENT NO.: 32

Denying Plaintiff's Motion for Limited Discovery and Ordering Defendants to File Motion for Summary Judgment

RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Van Nu Tu Truong challenges under the Administrative Procedure Act (“APA”) the denial of her immigration petition through the EB-5 visa program by United States Citizenship and Immigration Services (“USCIS” or the “agency”). Specifically, Plaintiff requests that the Court vacate USCIS's denial of Plaintiff's I-526 petition for classification as an EB-5 investor because: (1) USCIS's denial of Plaintiff's petition was arbitrary and capricious agency action that misapplied 8 C.F.R. § 204.6(e) and that was not supported by substantial evidence; (2) USCIS impermissibly applied a new agency policy and practice retroactively to Plaintiff's petition; and (3) USCIS promulgated a substantive rule of general applicability without the required notice-and-comment rulemaking. Compl. ¶¶ 6, 10, 50-72, ECF No. 1. Although Defendants filed the administrative record in this matter on May 6, 2022, Admin. R., ECF No. 31, Plaintiff filed a renewed motion for leave to propound “limited” discovery, arguing that hers is “the rare APA case” in which extra-record discovery should be permitted, Pl.'s Renewed Mot. for Discovery at 9, ECF No. 32 (citation omitted).

For the reasons detailed below, the Court finds that Plaintiff's request for discovery is premature. Despite Plaintiff's assertion that effective judicial review would not be possible based on the record in this case, it appears that the Court may not in fact need to address Plaintiff's contention that USCIS promulgated a new agency policy or practice, but may instead decide the matter on other grounds that the parties would more thoroughly address at the summary judgment stage. The Court therefore directs Defendants to submit their motion for summary judgment on or before 45 days from the date of this Opinion, subject to the directions provided below regarding certain issues that Defendants must address in that motion in the interest of more effective briefing from both parties.

II. BACKGROUND

A. Statutory and Regulatory Background

Through the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, Congress amended the Immigration and Nationality Act (“INA”) and created the EB-5 visa program, allotting “employment creation” visas to immigrants who invest in a “new commercial enterprise” (“NCE”) that “will benefit the United States economy by creating full-time employment” for at least ten individuals “lawfully authorized to be employed in the United States.” 8 U.S.C. § 1153(b)(5)(A). Prior to the Department of Homeland Security's (“DHS”) rule change in 2019 amending the regulations governing the EB-5 program and raising the investment thresholds for applicants, applicants seeking lawful permanent residence through the EB-5 program only qualified if they invested capital of at least one million dollars-or at least $500,000, if invested in a high unemployment or rural area (“targeted employment areas,” or “TEAs”)-in a new commercial enterprise. See 84 Fed.Reg. 35750, 35751 (July 24, 2019). The INA and its implementing regulations define the term “capital” so as to exclude “assets directly or indirectly acquired by unlawful means.” 8 U.S.C. § 1153(b)(5)(D)(ii)(III)(aa); 8 C.F.R. § 204.6(e) (“Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.”).

In 1992, Congress created a “pilot immigration program,” Dep'ts of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1993, Pub. L. No. 102-395, § 610, 106 Stat. 1828, 1874 (Oct. 6, 1992), which set aside EB-5 visas for “individuals who invest in new commercial enterprises through DHS-designated regional centers,” 82 Fed.Reg. 3211, 3212 (Jan. 11, 2017). Following the creation of this program, EB-5 applicants could apply either through the standard EB-5 visa pathway or the “Regional Center Program.” Cong. Rsch. Serv., R44475, EB-5 Immigrant Investor Visa, at 5-6 (2021), https://sgp.fas.org/crs/homesec/R44475.pdf.

To apply for an EB-5 visa, applicants must, among other steps, submit USCIS Form I-526 and furnish the required fees, initial evidence, and supporting documentation. 8 C.F.R. § 204.6(a); Defs.' Opp'n to Pl.'s Mot.for Leave for Discovery (“Defs.' First Opp'n”) at 5, ECF No. 11. Specifically, as relevant here, applicants must provide evidence that they have invested or are actively in the process of investing “lawfully obtained capital” (or, if investing in a regional center, “capital obtained through lawful means”). 8 C.F.R. § 204.6(j). The regulations further specify that:

(3) To show that the petitioner has invested, or is actively in the process of investing, capital obtained through lawful means, the petition must be accompanied, as applicable, by:

(i) Foreign business registration records; (ii) Corporate, partnership (or any other entity in any form which has filed in any country or subdivision thereof any return described in this subpart), and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed within five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner;

(iii) Evidence identifying any other source(s) of capital; or

(iv) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States within the past fifteen years.

Id. § 204.6(j)(3).^[1] If denied, the applicant is notified of the reasons for the denial and has the right to appeal the denial to USCIS's Administrative Appeals Office (“AAO”). Id. § 204.6(k).

B. Factual Background

Currently before this Court is Plaintiff's second attempt at seeking discovery, Pl.'s Renewed Mot. for Discovery, ECF No. 32, following this Court's denial without prejudice of Plaintiff's first such attempt, see Truong v. USCIS., No. 21-cv-316, 2022 WL 888192 at *4 (D.D.C. Mar. 25, 2022). The Court presumes familiarity with its prior opinion but reiterates the claims and some of the facts relevant to this Opinion.

Plaintiff filed her I-526 petition for an EB-5 visa in December 2016, Compl. ¶ 31, based on an investment of $500,000 through the Regional Center Program in an NCE in LaGrange, Georgia, Id. ¶ 28; Admin. R. at 1, ECF No. 31-1. To make this monetary investment, Plaintiff- a citizen of Vietnam, which “tightly restricts the conversion and transfer of currency”-engaged in a “currency swap.” Compl. ¶ 30. That is, she purportedly transferred the equivalent of approximately $550,050 in Vietnamese currency to a Vietnamese affiliate of a Singaporean company, VNT Trading and Investment, Pte. (“VNT Trading,” doing business as “Minh Long Money Transfer”); VNT Trading, in turn, transferred $550,025 from its bank account in Singapore to the NCE in Georgia on November 25, 2016. Id.; Admin. R. at 10, ECF No. 31-1.

In April 2018, USCIS issued a Request for Evidence (“RFE”) on Plaintiff's petition, citing an applicant's obligation under 8 C.F.R. §§ 204.6(e) and (j)(3) to establish that the capital invested had been acquired by lawful means. Admin. R. at 1515, ECF No 31-12. In particular, the RFE in part sought additional evidence establishing that the funds transferred by VNT Trading to the NCE had been obtained through lawful means. Id. at 1516. The RFE also noted that “USCIS must be able to determine the lawful source of the claimed investment funds and the evidence must clearly document the flow of the investment funds from their initial origin until they are deposited into the investment accounts.” Id. Though Plaintiff submitted additional documentation in response to the RFE, in November 2018 USCIS issued a Notice of Intent to Deny (“NOID”) Plaintiff's petition, noting a number of deficiencies in Plaintiff's documentation of the funds' path and the lawfulness of the U.S. dollars sent to the NCE's account. Id. at 153741. For instance, USCIS stated that Plaintiff had not sufficiently demonstrated that Plaintiff's funds in Vietnamese currency, purported to have been transferred to VNT Trading's representative in Vietnam, were in fact deposited into VNT Trading's accounts in Vietnam or where those funds went next. Id. at 1537-38. Though Plaintiff had provided a document showing a withdrawal of Vietnamese currency from her account, there was, according to the agency, “an apparent break or breaks in the path of funds between [Plaintiff's] account in Vietnam showing large cash withdrawal . . . and the claimed receipt of funds later . . . to the NCE escrow account.” Id. at 1538. Nor, according to USCIS, did Plaintiff's documentation “establish that [VNT Trading was] a legitimate money exchange service business operating legally out of Singapore and Vietnam or that their funds used in the exchange were lawfully attained.” Id.. USCIS noted further that the business code shown on a business registration certificate submitted by Plaintiff for one company appeared to instead belong to another company. Id. at 1539. In March 2019, USCIS denied Plaintiff's petition, stating that, as highlighted in the RFE and NOID, USCIS had identified various inconsistencies and...