We’ve Secured a Major Victory Regarding EB-5 Delays
At a time when bad news seemingly permeates the daily immigration discussion and the USCIS IPO office has issued year-after-year growing delays, it is always a pleasure to share favorable results arising from agency litigation. Last Friday, in a decision that is among the first of its kind, we prevailed against USCIS’ contentions that our I-526 mandamus litigation does not past legal muster.
Co-Counsel Bradley Banias and I represented a group of 14 I-526 and 1 I-829 plaintiffs in the case Raju v. Cuccinelli, No. 20:1386-AGT (N.D. Ca. Aug. 14, 2020). Upon initially adjudicating roughly half of the petitions after filing the complaint (including the I-829 investor), USCIS filed a Motion to Dismiss contending that the investors' claims were not legally redressable. Among other things, the Government argued that the processing times dictate who can bring a suit and because all of our plaintiffs had filed their cases within processing times, a court could not afford relief. We countered and also moved for expedited discovery, seeking the Government to offer documents and sworn explanations justifying their EB-5 processing delays.
In rejecting the Government’s position, United States Magistrate Judge Alex G. Tse confirmed that:
“Although there is no statutorily mandated timeline for USCIS to process [I-526] petitions, it is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application. And repeatedly, courts in this and other circuits have concluded that a reasonable time for agency action is typically counted in weeks or months, not years.” (emphasis added citations omitted).
Moreover, the Court held that USCIS published processing times cannot dictate whether a judge may award relief:
"USCIS, in arguing that its delays are reasonable as a matter of law, also notes that the processing times experienced by the plaintiffs thus far (i.e., between twenty-two and twenty-nine months) are within the norm. Based on its analysis of recently completed cases, the agency reports that as of June 24, 2020, it had processed 50 percent of EB-5 petitions within thirty months and 93 percent within sixty-one months … Although these ranges provide context, they don’t prove that the delays at issue are reasonable as a matter of law. For depending on the grounds for the delays, even processing times at the low end of the range could be unreasonable."
Accordingly, the judge ruled that our investor plaintiffs had stated a claim against the government and denied USCIS’ motion to dismiss. Further, the Court held that 1) our case was appropriately located in California and that 2) such delay cases require discovery. The case accordingly may continue forward.
We have heard reports that some attorneys in the past have advised plaintiffs to withdraw mandamus suits when faced with a motion to dismiss. I reject this idea – we prepare our clients to fight on when the law appears to be on our side -- we cannot let USCIS strangle the flow of immigration into the U.S. through arbitrary and seemingly growing petition delays.
While importantly this case did not hold that our clients are entitled to decisions immediately as a matter of law, the Raju decision stands for the proposition that the timing of mandatory EB-5 adjudications is not left to the agency’s unfettered caprice.