Bega v. Jaddou

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SERGE PHILIPPE BEGA, et al., Plaintiffs, Civil Action No. 22-02171 (BAH) v. Chief Judge Beryl A. Howell UR JADDOU, Director, U.S. Citizenship and Immigration Services, Defendant. MEMORANDUM OPINION Plaintiffs are four family members—three brothers, Serge Philippe Bega, Max Hubert Bega and Pierrot Serge Bega, and Phillipe’s son, Serge Brian Bega—who, as citizens of South Africa, “invested at least $2 million dollars in the United States in order to immigrate to the United States via investment.” Compl. at 1, and ¶¶ 26–28, ECF No. 1. They initiated this suit to compel the Director of the U.S. Citizenship and Immigration Services (“USCIS”), acting in her official capacity, to adjudicate their I-526 petitions, which have been pending without a decision for over three years. See Id. ¶¶ 5, 37, 172–73. USCIS moved to dismiss the complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to allege a plausible claim that the delay plaintiffs have encountered is “unreasonable as a matter of law” pursuant to the Administrative Procedure Act (“APA”). Defs.’ Mem. Pts. & Auth. Supp. Def.’s Mot. Dismiss (“Def.’s Mem.”) at 9, ECF No. 5-1. For the reasons set forth below, the complaint is dismissed. 1 I. BACKGROUND Briefly reviewed below is relevant statutory, regulatory, and factual background underlying the claims followed by the procedural history of this case. A. Statutory and Regulatory Background The Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., authorizes the issuance of visas to different categories of immigrants, including, under the so-called “EB-5” program, to immigrants who contribute to “employment creation” by investing in new commercial enterprises that create full-time jobs for American workers. Immigration Act of 1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4989 (1990) (codified at 8 U.S.C. § 1153(b)(5)); see 8 C.F.R. § 204.6 (2020) (defining the requirements and process for EB-5 “alien entrepreneur” classification). “An I-526 petition is the mechanism by which individuals who are eligible to immigrate to the United States through the EB-5 category obtain recognition from the government that they have satisfied the investment and job-creation requirements of that visa- preference category.” Mokkapati v. Mayorkas, No. 21-cv-1195 (BAH), 2022 WL 2817840, at *1 (D.D.C. July 19, 2022). To qualify for a visa under the EB-5 program, an immigrant must file an I-526 petition with USCIS and “create full-time employment for not fewer than 10 United States citizens, United States nationals, 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); 8 C.F.R. § 204.6(a)–(c). To that end, the immigrant must have made or be in the process of making an investment of at least $1,000,000 generally or at least $500,000 into a “targeted employment area.” 8 U.S.C. 2 § 1153(b)(5)(C)(ii) (2019). 1 USCIS permits certain so-called “economic units” to apply for categorization as a “targeted employment area” and designation as a …

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