Truong v. United States Citizenship and Immigration Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

VAN NU TU TRUONG, :
:
Plaintiff, : Civil Action No.: 21-316 (RC)
:
v. : Re Document Nos.: 37, 39
:
UNITED STATES CITIZENSHIP AND :
IMMIGRATION SERVICES, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S CROSS-
MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Van Nu Tu Truong (“Plaintiff” or “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, Truong requests that the Court vacate USCIS’s denial of her I-526 petition for

classification as an EB-5 investor because: (1) USCIS’s denial of her 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 her 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. In December 2022, this Court denied Truong’s renewed motion for leave to

propound “limited” discovery, explaining that it found her request for discovery to be premature

because it appeared that the Court might decide the matter on other grounds that the parties
would more thoroughly address at the summary judgment stage. Truong v. USCIS, No. 21-cv-

316, 2022 WL 17356865, at *1 (D.D.C. Dec. 1, 2022). The parties have now submitted their

respective motions for summary judgment. For the reasons detailed below, the Court grants

Defendants’ motion for summary judgment and denies Truong’s cross-motion for summary

judgment.

II. BACKGROUND

Although the Court already recounted the relevant background for this matter in its prior

opinion, it reproduces those sections of that opinion below and provides additional details as

necessary for this decision. See Truong, 2022 WL 17356865, at *1–4.

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 qualified only 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 EB-5 Immigrant Investor Program

Modernization, 84 Fed. Reg. 35750, 35751 (July 24, 2019) (to be codified at 8 C.F.R. pts. 204,

216). The INA and its implementing regulations define the term “capital” so as to exclude

2
“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) (2023) (“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,” EB-5

Immigrant Investor Regional Center Program, 82 Fed. Reg. 3211, 3212 (Jan. 11, 2017) (to be

codified at 8 C.F.R. pts. 204, 216). 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 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 Disc. (“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;

3
 (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

Truong 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. 45-1. To make this monetary investment, Truong—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.

1
In 2019, there were minor changes to the definition of “capital” in 8 C.F.R. § 204.6(e)
and 8 C.F.R. § 204.6(j)(2)(iii). See EB-5 Immigrant Investor Program Modernization, 84 Fed.
Reg. 35808, 35808–09. These changes are not relevant to the analysis of the pertinent
regulations here.

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 In April 2018, USCIS issued a Request for Evidence (“RFE”) on Truong’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. 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 Truong submitted additional documentation in response to the RFE, in

November 2018 USCIS issued a Notice of Intent to Deny (“NOID”) Truong’s petition, noting a

number of deficiencies in Truong’s documentation of the funds’ path and the lawfulness of the

U.S. dollars sent to the NCE’s account. Id. at 1537–41. For instance, USCIS stated that Truong

had not sufficiently demonstrated that her 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 Truong

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 Truong’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 Truong for one company appeared to instead belong to

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another company. Id. at 1539. In March 2019, USCIS denied Truong’s petition, stating that, as

highlighted in the RFE and NOID, USCIS had identified various inconsistencies and gaps in her

evidence related to VNT Trading and the path that the funds had taken from Truong to the NCE.

Id. at 1597, 1602–05.

Subsequently, Truong appealed the denial to the AAO. Id. at 1624. She contended in

part that USCIS had: (1) issued “new evidentiary and legal requirements requiring [Plaintiff] to

prove not only her lawful source of funds, but also an unrelated third-party company’s lawful

funds and operations,” id. at 1627 (emphasis removed), and (2) treated her petition differently

from comparable petitions involving currency swaps, id. at 1634. The appeal alleged that USCIS

had, prior to her petition, positively adjudicated petitions involving currency swaps without

requesting “independent evidence of the source of the [U.S. dollars] acquired in the currency

swap,” and that “even after USCIS issued the first RFE on the currency swap . . . USCIS

continued to approve cases with indistinguishable fact patterns and no additional evidence

involving the same currency swap transaction.” Id.

But in September 2020, the AAO dismissed Truong’s appeal, emphasizing the

“unresolved inconsistencies” that led the AAO to “question the reliability and sufficiency of the

submitted evidence regarding the lawful source of funds VNT Trading remitted to the NCE on

behalf of the [Plaintiff].” Id. at 1702. The AAO rejected her arguments objecting to the

requirement that she provide evidence as to the lawfulness of the third party’s funds, stating that

“[t]he record must trace the path of the funds back to a lawful source.” Id. at 1703. In its

decision, the AAO highlighted, among other issues, the deficiencies in Truong’s documentation

of the path of funds, stating:

A letter dated November 22, 2016, from Peggy Nguyen, Deputy Director of NVT
Trading (d/b/a Minh Long Money Transfer), indicates Mr. Van Vinh Nguyen, ostensibly

6
 a representative of the company in Ho Chi Minh City, Vietnam, collected 12,475,134,000
VND from the Petitioner on November 22, 2016. . . .

We find the Petitioner has not demonstrated, by a preponderance of the evidence, the path
of the funds used in the currency exchange or the lawful source of the funds submitted by
VNT Trading to the NCE on behalf of the Petitioner. The statements provided by Ms.
Nguyen claim the Petitioner provided the 12,808,000,000 VND in cash to her
representative in Vietnam. In support, the Petitioner has provided her bank account
statement showing she withdrew the VND funds and a receipt, signed by Ms. Nguyen,
stating Mr. Nguyen received the VND funds on November 22, 2016. However, the
Petitioner did not provide any documents such as bank statements to confirm VNT
Trading actually received the VND funds in its business accounts in Vietnam.
Furthermore, the Petitioner did not provide any documents confirming Mr. Nguyen was
employed by VNT Trading or authorized to receive funds on the company’s behalf, or
explaining what he did with the Petitioner’s funds. The record must trace the path of the
funds back to a lawful source. . . . Here, the Petitioner has not made such a showing.

Id. at 1699, 1701.

In February 2021, Truong filed her Complaint, requesting that the Court vacate USCIS’s

denial of her I-526 petition because: (1) USCIS’s denial of her petition was arbitrary and

capricious agency action that misapplied 8 C.F.R. § 204.6(e) and that was also not supported by

substantial evidence; (2) USCIS impermissibly applied a new agency policy and practice

retroactively to her petition; and (3) USCIS promulgated a substantive rule of general

applicability without notice-and-comment rulemaking. Compl. ¶¶ 6, 10, 50–72. Truong then

filed a motion to propound “limited” discovery that the Court denied. Truong, 2022 WL

17356865, at *1. In its denial of Truong’s request for discovery, the Court explained that,

because USCIS had also denied her petition based on her failure to fully trace the path of her

funds, it appeared that the Court could affirm the agency’s denial of her application without

needing to address USCIS’s approach to the lawfulness of third-party currency exchangers’

funds. Id. at *6. Given that the parties had not fully briefed the issue, however, the Court

ordered the parties to proceed to summary judgment. Id. at *10. The parties have now submitted

their respective motions for summary judgment. While Defendants have moved for summary

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judgment on all of Truong’s claims, Mem. Supp. Defs.’s Mot. Summ. J. at 1, ECF No. 37-1,

Truong has cross-moved for summary judgment only as to Counts I and III of her Complaint,

Pl.’s Cross-Mot. Summ. J. & Mem. Opp’n Gov’t’s Mot. Summ. J. (“Pl.’s Cross-Mot.”) at 1, ECF

No. 40. The cross-motions are now ripe for consideration.

III. LEGAL FRAMEWORK

In a typical case, the Court must grant summary judgment to a movant who “shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a); see also Winston & Strawn, LLP v. McLean, 843 F.3d 503,

505 (D.C. Cir. 2016). But in the context of the APA, the Court’s review of the administrative

record is limited. Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89 (D.D.C. 2006) (citing Nat’l

Wilderness Inst. v. U.S. Army Corps of Eng’rs, No. 01-cv-0273, 2005 WL 691775, at *7 (D.D.C.

Mar. 23, 2005)). It is the agency’s role to resolve issues of fact and regulate in accordance with

those facts. See Sierra Club, 459 F. Supp. 2d at 90. The district court’s review is accordingly

confined to determining whether, as a matter of law, the evidence in the administrative record

supports the agency’s decision. Citizens for Resp. & Ethics in Washington v. SEC, 916 F. Supp.

2d 141, 145 (D.D.C. 2013). “Summary judgment thus serves as the mechanism for deciding, as

a matter of law, whether the agency action is supported by the administrative record and

otherwise consistent with the APA standard of review.” Id. (citing Richards v. INS, 554 F.2d

1173, 1177 & n.28 (D.C. Cir. 1977)).

Under the APA, “[a] person suffering legal wrong because of agency action, or adversely

affected or aggrieved by agency action . . . is entitled to judicial review thereof.” 5 U.S.C. § 702.

Undertaking this review, a court has the power to hold unlawful and set aside agency action that

the court finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

8
law” or “without observance of procedure required by law.” Id. § 706(2)(A), (D). The court’s

review “is highly deferential to the agency,” such that “so long as [the agency decision] has some

rational basis, the court is bound to uphold the decision.” New Life Evangelistic Ctr., Inc. v.

Sebelius, 753 F. Supp. 2d 103, 113 (D.D.C. 2010). Thus, “where . . . an agency has set out

multiple independent grounds for a decision,” the Court “will affirm the agency so long as any

one of the grounds is valid, unless it is demonstrated that the agency would not have acted on

that basis if the alternative grounds were unavailable.” Fogo De Chao (Holdings) Inc. v. U.S.

Dep’t of Homeland Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (quoting BDPCS, Inc. v. FCC,

351 F.3d 1177, 1183 (D.C. Cir. 2003)); see also, e.g., Doe v. USCIS, 410 F. Supp. 3d 86, 96

(D.D.C. 2019) (“Because USCIS offered and defended with substantial factual support multiple,

independent grounds for denying the visa petitions, USCIS need only show that one of the

grounds for denial was sufficient in order to prevail in this matter.”).

IV. ANALYSIS

The Court affirms USCIS’s decision based on its “path of funds” requirement, thereby

obviating the need to address the parties’ arguments about USCIS’s denial of Truong’s petition

due to the lack of documentation regarding the lawfulness of the currency exchanger’s funds.

From its NOID through the AAO’s dismissal of Plaintiff’s appeal, USCIS stressed consistently

that Truong had failed to provide the necessary documentation proving (1) that Mr. Van Vinh

Nguyen was a representative authorized to receive funds on behalf of VNT Trading in Vietnam,

(2) what Mr. Nguyen did with the Vietnamese currency funds after receiving them from Plaintiff,

and (3) whether VNT Trading in fact received Plaintiff’s funds in its business accounts in

Vietnam. Admin. R. at 1701–02. Those deficiencies provided USCIS with additional,

independent grounds for denying Truong’s petition based on her inability to show that the funds

9
transferred to the NCE escrow account were even her own funds—that is, USCIS pinpointed a

problem with Truong’s petition that was wholly separate from the issue of whether Plaintiff

could show that VNT Trading acquired the assets that it remitted to the NCE through lawful

means. But Truong argues that USCIS’s alternative ground for denial due to her failure to show

the full path of her funds is “unsupported by the regulations, agency precedent, or [her] I-526

petition record.” Pl.’s Cross-Mot. at 29. The Court considers each of these arguments in turn.

A. USCIS’s “Path of Funds” Requirement

First, another court in this District has explained at length why: (1) the plain language of

8 C.F.R. §§ 204.6(e) and 204.6(j)(3) supports USCIS’s requirement “that the alien identify the

source of the funds, which is demonstrated through documentation evidencing the complete path

of the funds,” Borushevskyi v. USCIS, No. 19-cv-3034, 2023 WL 2663006, at *6 (D.D.C. Mar.

27, 2023), and (2) USCIS’s interpretation of the regulations as setting forth such a requirement

“is reasonable and is entitled to deference,” even if “the regulations could be considered

genuinely ambiguous,” id. at *8; see also Sadeghzadeh v. USCIS, 322 F. Supp. 3d 12, 17–18

(D.D.C. 2018) (“The AAO’s decision correctly states that, under governing regulations and

precedent, an applicant must document the complete path of her investment funds.”). Agreeing

with that court’s thorough reasoning, the Court does not see a need to retread that same ground

here.

Second, USCIS’s precedents and the case law from this District and other federal courts

establish that USCIS stands on firm ground in applying its “path of funds” requirement to

Truong’s petition. Truong contends that USCIS’s “insistence that [she] had to reveal the precise

manner in which VNT Trading moved funds to the United States extends the ‘path of funds’

requirement far beyond anything supported in agency precedent.” Pl.’s Cross-Mot. at 29. Yet,

10
through two of its “four precedential EB-5 decisions,” id., USCIS has long indicated that a

petitioner must not only establish that the funds invested are her own, In re Soffici, 22 I. & N.

Dec. 158, 165 n.3 (BIA 1998), but also document the path of her funds, such as by providing

wire transfer records, In re Izummi, 22 I. & N. Dec. 169, 195 (BIA 1998). And the agency’s

adjudications have since reflected this requirement. For instance, in 2014, the agency denied a

petitioner’s EB-5 application in part because, in failing to document his cash transfer to the

broker that then wire transferred funds to the NCE’s account, the petitioner had not properly

documented the path of his funds or “[met] his burden of establishing that the funds are his own

funds.” Matter of [Redacted], 2014 WL 4114100, at *5 (AAO May 12, 2014). Although the

petitioner had provided “the agreements with the petitioner’s broker to transfer funds,” this

evidence “did not establish that the broker received U.S. currency in cash or that any received

cash actually belonged to the petitioner.” Id. (emphasis added). Similarly, the agency in 2016

concluded that another petitioner had not sufficiently documented the path of her funds because,

despite submitting evidence showing that 11 individuals were involved in the movement of the

petitioner’s funds to the NCE, she “did not submit sufficient documentary evidence to establish

the transfer of funds from the Petitioner’s [IDENTIFYING INFORMATION REDACTED BY

AGENCY] account to each of the 11 individuals’ accounts.” Matter of C-Y-Appeal of Immigrant

Investor Program Office Decision Form I-526, Immigrant Petition By Alien Entrepreneur, 2016

WL 4619963, at *7–8 (AAO Aug. 19, 2016).

Other courts have also affirmed USCIS’s application of its “path of funds” requirement in

cases comparable to that here. As Judge Faruqui explained in his Report and Recommendation

subsequently adopted in Borushevskyi, USCIS’s “path of funds” requirement “involves a

substantive component and an evidentiary showing—what petitioners must prove and how they

11
must prove it.” 2023 WL 2663006, at *16. “The relevant path includes tracing the funds from

‘their point of origin through any intermediary accounts.’” Id. at *17 (emphasis added) (quoting

Jian Zhang, No. 18-9799, 2019 WL 5303276, at *7 (C.D. Cal. Oct. 17, 2019)); see also Zhang,

2019 WL 5303276, at *7 (“EB-5 investors satisfy their burden under 8 C.F.R. § 204.6(j)(3) to

establish that the investment funds are, in fact, their own by sufficiently documenting the transfer

path of the investment funds from their point of origin through any intermediary accounts, to

their deposit into the new commercial enterprise’s custody or escrow account.”). The petitioner

must “submit sufficient evidence to prove the complete path of their EB-5 investment funds,”

which, “[u]nder USCIS precedent, . . . requires objective documentation tracing the transfer of

funds.” Borushevskyi, 2023 WL 2663006, at *17.

Consistent with these considerations, another court in this District concluded that it was

not arbitrary and capricious for the agency to deny a plaintiff’s visa application for failing to

document the complete path of her investment funds. Sadeghzadeh, 322 F. Supp. 3d at 18. The

plaintiff in that case had not provided records showing “how the funds made their way from her

bank account in Iran to the wiring companies in Dubai” that purportedly transferred the

plaintiff’s investment to the NCE. Id. The court affirmed that the AAO was “well within its

discretion to demand evidence to fill that evidentiary gap,” and found that the agency had met its

obligation by making clear that, “having failed to provide any corroborating proof of the

movement of funds to Dubai or information concerning the identities of the wiring companies,

[the plaintiff] had not met her evidentiary burden.” Id. (emphasis in original).

In another case analogous to that here, a court found that USCIS’s denial of a plaintiff’s

EB-5 petition was not arbitrary and capricious or unsupported by substantial evidence when the

agency concluded that, among other issues presented by the plaintiff’s petition, she had not

12
demonstrated the complete path of her funds through a third-party individual. See Binbin Lei v.

USCIS, No. 15-cv-9654, 2017 WL 5957641, at *5 (C.D. Cal. Mar. 23, 2017), aff’d, 740 F. App’x

578 (9th Cir. 2018). The plaintiff in Lei had submitted declarations from herself and the third

party, Mingdong Cai, “asserting that Cai helped plaintiff transfer her $535,000 capital

investment” and “stat[ing] that plaintiff made three transactions from her China Merchants Bank

(“CMB”) account to Cai’s China Industrial and Commerce Bank (“CICB”) account, and that Cai

then made one transfer from his Hong Kong and Shanghai Banking Corporation (“HSBC”)

account to plaintiff’s Bank of China (“BC”) account.” Id. The AAO found, however, that

there [was] no documentary evidence to support the assertions regarding the
transfer of funds from [plaintiff]’s CMB account to Mr. Cai’s CICB account; the
transfer of funds from Mr. Cai’s CICB account to his HSBC account; and the
transfer of funds from Mr. Cai’s HSBC account to [plaintiff]’s BC account.

Id. The AAO thus stated that the plaintiff had not shown the complete path of her funds and

could not meet the burden of establishing that the funds transferred for her capital investment

were her own funds. Id. On review, the court confirmed that “[t]he AAO was within its rights to

consider whether plaintiff had established that the invested funds were her own,” and that the

plaintiff had accordingly failed to show that the agency’s action was arbitrary and capricious. Id.

at *6 (citing Soffici, 22 I. & N. Dec. at 165 n.3).

Truong objects that cases such as Sadeghzadeh and Borushevskyi should be of little

relevance here because “none involved currency exchanges” and instead “all concerned run-of-

the-mill factual issues about how the EB-5 investor acquired the assets used to make the

qualifying investment, or whether the funds transferred to the U.S. business were even owned by

the investor at all.” Pl.’s Cross-Mot. at 30 (emphasis in original). But Truong’s case does pose

such “run-of-the-mill factual issues” because, in the agency’s judgment, she provided inadequate

documentation showing “whether the funds transferred to the U.S. business were even owned by

13
[her] at all.” Id. And even though a case such as Lei did not involve a third party explicitly

identified as a currency exchanger, it nevertheless illustrates that the agency has consistently

considered its “path of funds” requirement to include documenting how third parties involved in

the movement of funds received those funds from the EB-5 petitioner. In short, the cases that the

Court cites here are relevant not because they turn on issues related to whether the EB-5

petitioner was able to establish the lawful source of her funds, but because they illustrate that the

agency was not venturing outside its usual practice when it questioned whether Truong was able

to demonstrate the path of her funds from her withdrawal from her bank account in Vietnam to

the deposit of funds into the NCE escrow account. See, e.g., Lei, 2017 WL 5957641, at *5 n.5

(distinguishing a petitioner’s obligation to show the lawful source of her investment funds from

her separate obligation to show the complete path of her funds).

B. Substantial Evidence

Thus, the question that this Court must answer is whether Truong has established that the

agency’s denial of her petition in the face of the documentation that she provided was

unsupported by substantial evidence. 2 Under a substantial-evidence standard, the Court “looks

to an existing administrative record and asks whether it contains sufficient evidence to support

the agency’s factual determinations.” Borushevskyi, 2023 WL 2663006, at *9 (quoting Biestek v.

2
As the D.C. Circuit has explained, “the distinction between the substantial evidence test
and the arbitrary or capricious test is largely semantic.” Doe v. USCIS, 410 F. Supp. 3d 86, 96
(D.D.C. 2019) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed.
Rsrv. Sys., 745 F.2d 677, 684 (D.C. Cir. 1984)) (internal quotation marks omitted); see also
Black Rock City LLC v. Haaland, No. 19-cv-3729, 2022 WL 834070, at *5 n.3 (D.D.C. Mar. 21,
2022), appeal dismissed per appellant’s motion for voluntary dismissal, No. 22-5148, 2022 WL
17586715 (D.C. Cir. Dec. 12, 2022) (“There is ‘no material difference between the APA’s
arbitrary and capricious standard and its substantial evidence standard as applied to court review
of agency factfinding.’” (quoting Crooks v. Mabus, 845 F.3d 412, 423 (D.C. Cir. 2016)) (internal
quotation marks omitted)).

14
Berryhill, 139 S. Ct. 1148, 1154 (2019)) (cleaned up). This review “is highly deferential to the

agency fact-finder,” Sec’y of Lab. v. Knight Hawk Coal, LLC, 991 F.3d 1297, 1308 (D.C. Cir.

2021) (quoting Rossello ex rel. Rossello v. Astrue, 529 F.3d 1181, 1185 (D.C. Cir. 2008)), such

that a court “may not reject reasonable findings and conclusions, even if [it] would have weighed

the evidence differently,” id. (quoting Cumberland Coal Res., LP v. Fed. Mine Safety & Health

Rev. Comm’n, 717 F.3d 1020, 1028 (D.C. Cir. 2013)). Instead, a court “must affirm the decision

if ‘a theoretical reasonable factfinder could have reached the conclusions actually reached by the

[agency].’” Borushevskyi, 2023 WL 2663006, at *9 (quoting Sec’y of Lab. v. Keystone Coal

Mining Corp., 151 F.3d 1096, 1104 (D.C. Cir. 1998)) (internal quotations omitted). “Reversal of

an agency decision under [the substantial-evidence] standard is rare.” Rossello, 529 F.3d at

1185.

Truong believes that she provided sufficient evidence because her documentation

purportedly showed “(1) that she provided a third-party currency exchanger with the full amount

of lawfully sourced capital, and (2) that the exchanger transferred the equivalent amount of funds

in U.S. dollars to Plaintiff’s EB-5 qualifying business in the United States.” Pl.’s Cross-Mot. at

31. She acknowledges that “the agency faulted VNT Trading’s representative for providing

inconsistent information regarding the names and licenses for the corporate entities affiliated

with VNT Trading in Vietnam,” but argues that “the bottom line remains that the Government

has identified nothing unlawful about Ms. Truong’s conduct in arranging the currency swap with

VNT Trading.” Id. at 30 (emphasis in original). In the agency’s judgment, however, Truong

failed to trace by a preponderance of the evidence the path of funds used in the currency

exchange because: (1) Truong relied solely on Peggy Nguyen’s representations that a

representative of VNT Trading, Van Vinh Nguyen, collected the funds from Truong on VNT

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Trading’s behalf, but did not otherwise provide any other documentation confirming that Mr.

Nguyen was indeed “employed by VNT Trading or authorized to receive funds on the

company’s behalf, or explaining what he did with [Plaintiff’s] funds;” and (2) Truong did not

“provide any documents such as bank statements to confirm VNT Trading actually received the

VND funds in its business accounts in Vietnam.” Admin. R. at 1701. According to the agency,

other inconsistencies in documentation provided by Ms. Nguyen relating to the currency

exchanger’s business certificate cast “[d]oubt” and adversely affected the agency’s consideration

of Ms. Nguyen’s other representations as an “individual whose testimony regarding the transfer

of funds play[ed] a key role in establishing the path of [Plaintiff’s] funds.” Id.

Upon consideration of the administrative record, the Court concludes that USCIS’s

decision in this case meets the substantial-evidence standard that “requires more than a scintilla,

but can be satisfied by something less than a preponderance of the evidence.” Butler v.

Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004) (quoting Fla. Mun. Power Agency v. Fed. Energy

Regul. Comm’n, 315 F.3d 362, 365–66 (D.C. Cir. 2003)).

When an agency bases its decision on the petitioner’s failure to meet the necessary
burden, i.e., on a general lack of evidence rather than on a particular piece of
evidence, there need not be affirmative contradictory evidence on the record—a
rational, supported explanation of the lack of evidence suffices to meet the
substantial evidence test.

Borushevskyi, 2023 WL 2663006, at *15. “[I]t [is] not arbitrary, capricious, or an abuse of

discretion for USCIS to conclude that [a petitioner] simply ha[s] not met [their] burden.” Id.

(quoting Sagarwala v. Cissna, 387 F. Supp. 3d 56, 69 (D.D.C. 2019)). USCIS has provided just

such a “rational, supported explanation” here in finding that Truong did not provide the

necessary documentation tracing the path of her funds and that the documentation she did

provide relied on representations by an individual whose credibility the agency reasonably

doubted due to other inconsistencies in the record. See id.; Admin. R. at 1701.

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 The Court therefore finds that these grounds for denial of Truong’s petition provides

sufficient basis for the Court to uphold the agency’s decision. See Fogo De Chao, 769 F.3d at

1149. Because the Court upholds the agency’s decision on these other independent grounds, the

Court need not address the parties’ arguments regarding USCIS’s examination of the lawfulness

of third-party currency exchangers’ funds. For the same reason, even though Truong sought to

reserve her motion for summary judgment on Count II of her Complaint until after any potential

discovery, the Court grants Defendants’ Motion for Summary Judgment on all three counts of

the Complaint.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ Motion for Summary

Judgment (ECF No. 37) and DENIES Plaintiff’s Cross-Motion for Summary Judgment (ECF

No. 39). An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: June 28, 2023 RUDOLPH CONTRERAS
United States District Judge

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