Li v. Blinken

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
BO LI, et. al, )
)
Plaintiffs, )
)
v. ) Case No. 22-cv-2331 (TSC)
)
ANTONY BLINKEN, et. al., )
)
Defendants. )
)

MEMORANDUM OPINION

Plaintiffs in this action are 308 Chinese nationals who have sued Antony Blinken and

Alejandro Mayorkas in their official capacities as Secretary of the United States Department of

State and Secretary of the United States Department of Homeland Security (“DHS”),

respectively. Plaintiffs have applied for EB-5 visas that would grant them residency status in the

United States, and the State Department has not yet fully adjudicated their petitions and issued

them visas. They now ask the court to order DHS to transfer their approved Forms I-526 to the

State Department and order the State Department to allocate them visa numbers and process their

visa applications. Defendants have moved to dismiss, and the court will GRANT their motion.

I. BACKGROUND

A. EB-5 Visa Program

In 1990, Congress amended the Immigration and Nationality Act (“INA”) to establish a

program—the “EB-5” visa—that sets aside visas for “employment creation” immigrants who

invest in new commercial enterprises that create full-time jobs for American workers. See

Immigration Act of 1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4987 (Nov. 29, 1990)

(codified at 8 U.S.C. § 1153(b)(5)).
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 The path to lawful permanent residence through the EB-5 program involves several steps.

First, an applicant files a Form I-526 immigrant petition with the United States Citizenship and

Immigration Services (“USCIS”). See 8 C.F.R. § 204.6(a). The petition is given a “priority

date,” 22 C.F.R. § 42.53(a), which is the date the petition was filed with USCIS, 8 C.F.R.

§ 204.6(d). If USCIS approves the petition, it sends it to the State Department for visa pre-

processing. See 8 U.S.C. § 1154(b).

Every month a certain number of visas are made available for numerically capped visa

categories. See 22 C.F.R. §§ 42.51, 42.52. The State Department estimates the anticipated

number of visas to be issued and relies on such estimates in authorizing visa issuances. See 8

U.S.C. § 1153(g). When the total number of beneficiaries with an approved petition in a

particular category exceeds the supply of visa numbers available for that category for a given

month, the category is oversubscribed, and the State Department publishes a monthly Visa

Bulletin that identifies the “cut-off date,” or “final action date.” Feng Wang v. Pompeo, 354 F.

Supp. 3d 13, 18 (D.D.C. 2018). Only eligible beneficiaries whose approved petitions have

priority dates earlier than the final action date may be allotted a visa number. 8 U.S.C.

§§ 1153(e)(1), (g) (setting forth the order of consideration for applicants for numerically capped

immigrant visas); id. § 1255(a) (conditioning eligibility for adjustment of status on the

availability of an immigrant visa number). A beneficiary whose priority date is earlier than the

final action date is said to have a “current” priority date, 8 C.F.R. § 245.1(g)(1), and a visa will

not be available until other applicants with earlier priority dates have received visas.

Once a visa number becomes available for a beneficiary of an approved I-526 petition, or

immediately available for adjustment of status, the beneficiary may complete the second step of

the EB-5 application process. For applicants outside of the United States, the State Department

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adjudicates applications for visas, see 8 U.S.C. § 1152(a)(1)(B), and must determine that an

applicant is “documentarily qualified” within the meaning of 22 C.F.R. § 40.1. Next, the

applicant must have an interview with a consular official who will further determine eligibility.

See 22 C.F.R. §§ 42.62, 42.65. Approved applications for adjustment of status (within the

United States) and for immigrant visas (at consular posts overseas) draw from the same “pool” of

visa numbers and thus count equally against the annual visa cap for a given visa category and

country. See 8 U.S.C. § 1255(b) (providing that, upon approval of an application for adjustment

of status, “the Secretary of State shall reduce by one the number of the preference visas

authorized to be issued under sections 1152 and 1153 of this title within the class to which the

alien is chargeable for the fiscal year then current”); Feng Wang, 354 F. Supp. 3d at 18.

Upon adjustment of status or successful application for admission to the United States

under an EB-5 immigrant visa, the foreign national investor and his or her derivatives receive

lawful permanent resident status on a conditional basis. See 8 U.S.C. § 1186b(a).

B. Plaintiffs and their EB-5 Applications

Plaintiffs in this case are 308 Chinese nationals whose petitions for EB-5 visas have been

approved by USCIS, and who claim they are all entitled to receive visa numbers. They seek

relief under 5 U.S.C. § 706(1)–(2) of the Administrative Procedure Act (“APA”), alleging that

USCIS and the State Department have failed to comply with their statutory duties under the INA

and should be ordered to comply immediately.

II. LEGAL STANDARD

A. 12(b)(1) Motion

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), the

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plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its

claim. Moms Against Mercury v. Food & Drug Admin., 483 F.3d 824, 828 (D.C. Cir. 2007).

Federal courts are “forbidden . . . from acting beyond our authority,” NetworkIP, LLC v. FCC,

548 F.3d 116, 120 (D.C. Cir. 2008), and therefore, “have an affirmative obligation to consider

whether the constitutional and statutory authority exist for us to hear each dispute.” James

Madison Ltd. ex rel. Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v.

Nat’l Acad. of Scis., 974 F.2d 192, 196 (D.C. Cir. 1992)) (internal quotation marks omitted).

B. 12(b)(6) Motion

Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

complaint for “failure to state a claim upon which relief may be granted.” In evaluating a Rule

12(b)(6) motion, courts “treat the complaint’s factual allegations as true” and “grant plaintiff the

benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines,

Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quotation marks and citation omitted). But a court

need not accept as true “a legal conclusion couched as a factual allegation,” nor “inferences . . .

unsupported by the facts set out in the complaint.” Trudeau v. Fed. Trade Comm’n, 456 F.3d

178, 193 (D.C. Cir. 2006) (quotation omitted). Further, the court may consider “any documents

either attached to or incorporated in the complaint[,] and matters of which [courts] may take

judicial notice.” Equal Emp. Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117

F.3d 621, 624 (D.C. Cir. 1997).

III. ANALYSIS

Plaintiffs bring four claims in this action: In Counts I and II they allege that DHS has

either unlawfully or unreasonably delayed transfer of fifty-seven Plaintiffs’ approved immigrant

visa petitions to the State Department, Second Am. Compl. ¶¶ 387–88, 405–06, ECF No. 23; in

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Counts III and IV they allege the State Department has either unlawfully withheld, or

unreasonably delayed, allocation of visa numbers to all Plaintiffs, id. ¶¶ 434–38.

A. Claims Against DHS are Moot

Article III’s Case-or-Controversy Clause limits federal courts’ jurisdiction to “actual,

ongoing controversies.” Foretich v. United States, 351 F.3d 1198, 1210 (D.C. Cir. 2003)

(quoting Honig v. Doe, 484 U.S. 305, 317 (1988)); U.S. Const. Art. III, §2, cl. 1. Thus, a lawsuit

is “moot—and is therefore no longer a ‘Case’ or ‘Controversy’—‘when the issues presented are

no longer live or the parties lack a legally cognizable interest in the outcome.’” Almaqrami v.

Pompeo, 933 F.3d 774, 779 (D.C. Cir. 2019) (quoting Chafin v. Chafin, 568 U.S. 165, 172

(2013)). In deciding whether it has subject matter jurisdiction, a court may consider “undisputed

facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198

(D.C. Cir. 2003) (quoting Herbert, 974 F.2d at 197). “If the court determines at any time that it

lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see

Chafin, 568 U.S. at 172.

Fifty-seven Plaintiffs seek to compel USCIS to transfer their approved petitions to the

State Department, alleging that USCIS has unlawfully withheld and unreasonably delayed

transferring these petitions. See Second Am. Compl. ¶¶ 387–433, ECF No. 23. Defendants

contend that USCIS has already transferred these petitions to the State Department, and therefore

this request for relief is moot. Def. Mot. at 22–23, ECF No. 24. In response, Plaintiffs argue that

there is “no[] proof that [the State Department] has received the approved petitions.” Pls. Opp’n

at 1, ECF No. 26.

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 Defendants submitted a declaration from USCIS Chief of the Immigrant Investor

Program Office who stated that as of December 20, 2022, USCIS had transferred the approved

petitions of the fifty-seven Plaintiffs to the State Department. Emmel Decl. ¶ 3, ECF No. 24-1.

This is sufficient to establish that Plaintiffs have obtained the relief they sought from DHS, see

Second Am. Compl. ¶ 480, ECF No. 23 (asking the court to “[c]ompel DHS to transfer all

Plaintiffs with approved Forms I-526” to the State Department). Consequently, there is no relief

for the court to grant Plaintiffs against DHS, and Counts I and II will be dismissed as moot.

B. Failed to State a Claim Against State Department

Plaintiffs allege that the State Department has either unlawfully withheld or unreasonably

delayed issuing their visa numbers, and asks the court to order the agency to act. The APA

provides that a court may “compel agency action unlawfully withheld or unreasonably delayed,”

5 U.S.C. § 706(1), but such a claim can “proceed only where a plaintiff asserts that an agency

failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness

All. (“SUWA”), 542 U.S. 55, 64 (2004). In other words, a court’s power to “compel agency

action is carefully circumscribed to situations where an agency has ignored a specific legislative

command.” Zixiang Li v. Kerry, 710 F.3d 995, 1003 (9th Cir. 2013) (citation omitted).

Accordingly, Plaintiffs’ claims can only proceed if the State Department is required to issue

them visa numbers and has either unlawfully failed to so or unreasonably delayed doing so.

Plaintiffs contend that the State Department “has a required, discrete duty to authorize all

available visa numbers upon receipt of the approved visa petitions.” Second Am. Compl. ¶ 435,

ECF No. 23; see id. at ¶¶ 323, 349, 371, 373, 380, 438, 448–50, 452–53. They further allege that

even though their priority dates are not current, id. at ¶ 437, they are still entitled to an order

compelling the State Department to “immediately” allocate visa numbers to them, id. at ¶ 438;

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see generally, id. at ¶¶ 323, 380, 434–82. But given that the State Department is not “legally

required” to allocate visa numbers to a foreign national upon receipt of an approved petition,

SUWA, 542 U.S. at 62 (emphasis in original), Counts III and IV fail as a matter of law.

Plaintiffs argue that several statutory provisions require the State Department to issue

them visa numbers. See Pls. Opp’n at 3–4, ECF No. 26. As relevant here, Congress requires that

• “Visas shall be made available, in a number not to exceed 7.1 percent of such worldwide

level, to qualified immigrants seeking to enter the United States for the purpose of

engaging in a new commercial enterprise” involving a certain investment level and

creating at least 10 American jobs. Id. § 1153(b)(5)(A).

• “[E]mployment-based immigrants in a fiscal year shall be allotted visas.” Id. § 1153(b).

• “The Secretary of State shall then authorize the consular officer concerned to grant the

preference status.” Id. § 1154(b).

Plaintiffs misapprehend the requirements of these statutory provisions and the INA’s broader

scheme. These provisions do not impose any time limit or specific process by which visa

numbers must be allocated. Indeed, they do not mention visa numbers at all.

The INA imposes multiple, competing obligations on the State Department and

recognizes that “the procedures for the processing of immigrant visa applications” are generally

committed to State’s discretion. 8 U.S.C. § 1152(a)(1)(B). The statute requires the State

Department to not only make visas available, but also to make them available in certain

quantities, id. §§ 1152(a)(2), 1153(b)(5)(A), and in the order in which their respective petitions

were filed, id. § 1153(e)(1). This broader statutory context confirms that Congress intended

State to have flexibility in managing the INA’s various and competing commands at the stages of

visa allocation and issuance. See Bega v. Jaddou, No. CV 22-02171 (BAH), 2022 WL

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17403123, at *2 (D.D.C. Dec. 2, 2022) (recognizing that “a successful adjudication of an I-526

petition represents only a foreign investor’s . . . eligibility to apply for two-year conditional

permanent resident status”).

As the D.C. Circuit explained in the context of an I-140 petition—an analogous

employment-based visa application—“[o]nce USCIS grants the . . . petition, an immigrant

worker is eligible to stand in line for an immigrant visa number to be issued by the Department

of State.” iTech U.S., Inc. v. Renaud, 5 F.4th 59, 61 (D.C. Cir. 2021) (citing United States v.

Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003)). Thus, the INA “establishes no clear duty” for

the State Department to allocate numbers “within a certain time frame or in a certain manner,”

Oglala Sioux Tribe of Pine Ridge Indian Reservation v. U.S. Army Corps. of Eng’rs, 570 F.3d

327, 334 (D.C. Cir. 2009), and Counts III and IV will accordingly be dismissed for failure to

state a claim.

IV. CONCLUSION

For the reasons explained above, the Government’s motion to dismiss, ECF No. 24, will

be GRANTED.

Date: September 30, 2023

Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge

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