UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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ARTHUR SHARIFULLIN, )
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Plaintiff, )
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v. ) Case No. 21-cv-728 (APM)
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ANTONY BLINKEN et al., )
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Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I.
The so-called “EB-5” program authorizes visas for immigrants who contribute to
“employment creation” in the United States by investing in new commercial enterprises. 8 U.S.C.
§ 1153(b)(5); 8 C.F.R. § 204.6. To qualify for a visa under this program, an applicant must invest
a certain amount of capital (at least $1,000,000 generally or at least $500,000 into a “targeted
employment area”) into the new commercial enterprise, which must create full-time employment
for “not fewer than 10 United States citizens or aliens lawfully admitted for permanent residence
or other immigrants lawfully authorized to be employed in the United States (other than the
immigrant and the immigrant’s spouse, sons, or daughters).” 8 U.S.C. § 1153(b)(5)(A)(ii). Once
the applicant has invested the requisite funds, she must file a Form I-526 (Petition for Alien
Investor) with U.S. Citizenship and Immigration Services (“USCIS”). Id. § 1153(b)(5); 8 C.F.R.
§ 204.6. Once USCIS approves the petition, the next step for an applicant residing outside the
United States is to acquire lawful permanent residence by submitting a Form DS-260 (Immigrant
Visa Electronic Application) with the State Department’s visa-processing center. Immigrant
Investor Visas, TRAVEL.STATE.GOV, https://travel.state.gov/content/travel/en/us-visas/immigrate
/immigrant-investor-visas.html (last visited Feb. 23, 2022). After that, the State Department
eventually schedules a visa appointment for the applicant and forwards the case to the appropriate
U.S. Embassy or Consulate for an interview. Id. If the applicant is approved, she is issued an
immigrant visa and may immigrate to the United States. Id.
Plaintiff Artur Sharifullin, a Russian citizen and national who wishes to immigrate to the
United States, seeks to compel adjudication of his visa application pursuant to the EB-5 program.
First Am. Compl., ECF No. 9 [hereinafter Am. Compl.], ¶ 1. He alleges that he filed an immigrant
investor visa petition in August 2015; that USCIS approved his petition and forwarded his case to
the State Department for processing in November 2016; and that the State Department opened his
immigrant visa case in March 2017. Id. ¶¶ 23–25. He then completed his Form DS-260 and
submitted the required paperwork, and in November 2019 he was notified that the State
Department had scheduled his case for an interview the following month at the U.S. Embassy in
Moscow. Id. ¶¶ 26–27. He alleges that, following his interview, the State Department did not
render a decision on his application but instead placed him in “administrative processing,” and that
his application has effectively remained in that state ever since. Id. ¶¶ 29–44.
Plaintiff filed this action in March 2021, bringing a claim under the Mandamus Act,
28 U.S.C. § 1361; an unreasonable-delay claim under the Administrative Procedure Act (“APA”);
and a claim for fees under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504; 28 U.S.C.
§ 2412. Compl., ECF No. 1, ¶¶ 28–41. Three months after he initiated suit, however, on June 30,
2021, Congress’s most recent reauthorization of the EB-5 program expired. See Consolidated
Appropriations Act, 2021, Pub. L. No. 116-260, § 104, 134 Stat. 1182, 2148 (2020). Congress has
yet to renew the program. After congressional authorization for the program lapsed, Plaintiff filed
an amended complaint, this time asserting relief only under the APA for the alleged unreasonable
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delay in processing his DS-260 immigrant visa application. Am. Compl. ¶¶ 45–65. He names as
defendants the Department of State; Antony Blinken, the Secretary of State; Abigail Rupp, the
Deputy Chief of Mission, Consular Section, at the U.S. Embassy in Moscow; a Consular Officer
in the same section of the embassy in Moscow; and Patrick Walsh, the Consul General, Consular
Section, at the U.S. Embassy in Warsaw, Poland (collectively, “the Government”). Id. ¶¶ 2–6.
The Government has moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) for lack of jurisdiction and failure to state a claim, respectively. Mot. to Dismiss Am.
Compl. & Mem. in Supp. Thereof, ECF No. 10 [hereinafter Defs.’ Mot.].
For the reasons that follow, the court grants the Government’s motion and dismisses this action
as moot.
II.
When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual
allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253
(D.C. Cir. 2005). Because the court has “an affirmative obligation to ensure that it is acting within
the scope of its jurisdictional authority,” however, the factual allegations in the complaint “will
bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure
to state a claim.” Grand Lodge of Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14
(D.D.C. 2001) (internal quotation marks omitted). To that end, the court may consider “such
materials outside the pleadings as it deems appropriate to resolve the question whether it has
jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
(D.D.C. 2000). Thus, “where necessary, the court may consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
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the court’s resolution of disputed facts.” See Coal. for Underground Expansion v. Mineta,
333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted).
Mootness is one ground for dismissal for lack of subject matter jurisdiction under Rule
12(b)(1). Indian River Cty. v. Rogoff, 254 F. Supp. 3d 15, 18 (D.D.C. 2017) (“A motion to dismiss
for mootness is properly brought under Rule 12(b)(1) because mootness itself deprives the court
of jurisdiction.”). “Federal courts lack jurisdiction to decide moot cases because their
constitutional authority extends only to actual cases or controversies.” Conservation Force, Inc. v.
Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013) (internal quotation marks omitted). “A case is moot
when the challenged conduct ceases such that there is no reasonable expectation that the wrong
will be repeated in circumstances where it becomes impossible for the court to grant any effectual
relief whatever to the prevailing party.” United States v. Philip Morris USA, Inc., 566 F.3d 1095,
1135 (D.C. Cir. 2009) (internal quotation marks omitted). Stated differently, a case
becomes moot when “the court can provide no effective remedy because a party has already
obtained all the relief that it has sought.” Conservation Force, 733 F.3d at 1204 (alteration and
internal quotation marks omitted). “The initial heavy burden of establishing mootness lies with
the party asserting a case is moot, but the opposing party bears the burden of showing an exception
applies[.]” Honeywell Int’l, Inc. v. Nuclear Regul. Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010)
(citations and internal quotation marks omitted).
III.
The Government moves to dismiss for lack of jurisdiction on the basis that Plaintiff cannot
satisfy the redressability prong of the Article III standing inquiry because “there exists no ability
for the Court to redress the alleged injury” in light of the EB-5 program’s reauthorization lapse.
Defs.’ Mot. at 11; Reply in Further Supp. of Defs.’ Mot., ECF No. 16 [hereinafter Defs.’ Reply],
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at 6. But the relevant doctrine here is mootness, not standing. As the Supreme Court has explained,
“the doctrine of mootness can be described as the doctrine of standing set in a time frame: The
requisite personal interest that must exist at the commencement of the litigation (standing) must
continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Env’t Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000). Here, “suit was filed before statutory authorization for the
EB-5 Regional Center program lapsed.” Pl.’s Opp’n at 13. The justiciability question, as the
Government appears to recognize at times despite framing its argument primarily in standing
terms, is whether “the expiration of the statutory authority has mooted the Court’s ability to
redress” Plaintiff’s alleged injuries. Defs.’ Reply at 6 (emphasis added).
This court has considered this precise question on two previous occasions: first in Fang v.
Blinken, No. 21-cv-01705 (APM) (D.D.C.), and again in Saxby v. Mayorkas, No. 21-cv-964
(APM), 2022 WL 103176 (D.D.C. Jan. 11, 2022). In both cases, the court concluded that the lapse
of the program’s reauthorization rendered the plaintiffs’ claims moot because the court could no
longer provide the requested relief. Saxby, 2022 WL 103176, at *1; Minute Order, Fang v.
Blinken, No. 21-cv-964 (APM) (D.D.C. Oct. 20, 2021). That conclusion applies with equal force
here. Plaintiff asks the court to order either the Moscow or Warsaw Embassy to adjudicate his
application as of the program’s expiration date (June 30, 2021), Am. Compl. ¶ 68(a), but “if [he]
mean[s] that the court can now compel the agency to adjudicate [his] application[] and grant a visa
notwithstanding the program’s expiration, that is surely not so.” Saxby, 2022 WL 103176, at *1.
As this court has previously held, “[t]he court cannot compel USCIS to do what Congress has not
authorized it to do.” Id. “The statutory authority for the program on which plaintiff’s petition
relies to qualify for an EB-5 visa has lapsed; therefore, this Court has no authority to order relief
for plaintiff's claim arising from his I-526 petition.” Bromfman v. USCIS, No. 21-cv-571 (BAH),
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2021 WL 5014436, at *4 (D.D.C. Oct. 28, 2021). This conclusion is consistent with numerous
other decisions in this Circuit holding cases moot where a program’s expiration date has passed.
See id. (citing cases). As the court lacks the ability to grant effectual relief, this matter is moot.
See Porzecanski v. Azar, 943 F.3d 472, 479 (D.C. Cir. 2019). 1
Plaintiff attempts to avoid this conclusion by arguing, first, that the sunset of the EB-5
program is only temporary and so does not destroy the court’s jurisdiction. Pl.’s Opp’n at 11–12.
To ground this argument, he points to bills to reauthorize the program in Congress and to the
Government’s representations in other litigation. See id. The court has already addressed—and
explained why it is not persuaded by—similar arguments. In Saxby, this court explained that “the
court cannot ground its jurisdiction in the mere hope of congressional action.” 2022 WL 103176,
at *1. “[T]he mootness doctrine prohibits [courts] from deciding a case if events have so transpired
that the decision will neither presently affect the parties’ rights nor have a more-than-speculative
chance of affecting them in the future.” J.T. v. District of Columbia, 983 F.3d 516, 522 (D.C. Cir.
2020) (internal quotation marks omitted). The court cannot premise its jurisdiction on a mere
prediction as to what Congress will do.
Plaintiff maintains that he has requested relief that the court can provide notwithstanding
the program’s lapse, including a declaratory judgment, adjudication of his visa, and payment of
attorney’s fees. Pl.’s Opp’n at 11. He explains that this relief is “either authorized by other
authority or only being requested upon a timeframe following statutory reauthorization of the EB-5
Regional Center Program.” Id. at 11. It is not entirely clear what Plaintiff means by this. But to
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In reaching this conclusion, the court again “respectfully disagrees with the decision to the contrary in Nandu v.
Renaud, No. SA CV 21-00643-DOC-KES, 2021 WL 5986917, at *4 (C.D. Cal. Sept. 24, 2021).” Saxby, 2022 WL
103176, at *1. The court also reiterates its statement in Saxby that “[t]his case is not like those in which the court
granted relief to a plaintiff prior to expiration of program eligibility and later exercised its equitable powers to enforce
such order.” Id. at *1 n.1 (citing Gomez v. Trump, 490 F. Supp. 3d 276, 286 (D.D.C. 2020)).
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the extent “other authority” refers to the Equal Access to Justice Act (“EAJA”) and its
authorization of attorney’s fees, case law is clear that the possibility of a fee award pursuant to the
EAJA is not enough standing alone to confer jurisdiction. Liu v. INS, 274 F.3d 533, 536 (D.C. Cir.
2001) (“[A]n interest in attorney’s fees is, of course, insufficient to create an Article III case or
controversy where none exists on the merits of the underlying claim.” (internal quotation marks
omitted)). And to the extent Plaintiff suggests this court could fashion relief that orders the agency
to adjudicate the application within 30 days after program renewal, see Am. Compl. ¶ 68(b), for
such relief “to be effectual[,] the court would have to speculate that Congress will reauthorize the
program.” Saxby, 2022 WL 103176, at *1. As the court has just explained, it cannot do so. J.T.,
983 F.3d at 522.
IV.
For the foregoing reasons, Defendants’ Motion to Dismiss the Amended Complaint, ECF
No. 10, is granted in full. A final, appealable order accompanies this memorandum.
Dated: February 24, 2022 Amit P. Mehta
United States District Court Judge
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