Krihely v. Mayorkas

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA RINA KRIHELY, : : Plaintiff, : Civil Action No.: 22-02973 (RC) : v. : Re Document No.: 4 : ALEJANDRO MAYORKAS, et al., : : Defendants. : MEMORANDUM OPINION GRANTING DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION Plaintiff Rina Krihely sues Alejandro Mayorkas in his official capacity as Secretary of the Department of Homeland Security; Merrick Garland in his official capacity as Attorney General; Ur Jaddou in her official capacity as Director of United States Citizenship and Immigration Services (“USCIS”); and Alissa Emmel in her official capacity as Chief of the Immigrant Investor Program Office of USCIS (collectively, “Defendants”). Ms. Krihely seeks relief under the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 555, 706) and the Mandamus Act (28 U.S.C. § 1361) based on allegations that Defendants have unreasonably delayed adjudication of her I-526 immigration petition. Defendants moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on January 23, 2023 and submitted an erratum on February 3, 2023. Ms. Krihely filed an opposition on March 31, 2023, and Defendants filed a reply on April 7, 2023. For the reasons set forth below, the Court grants Defendants’ motion to dismiss. II. FACTUAL BACKGROUND The U.S. government’s EB-5 program allots “immigrant investor visas” to those who make a qualifying investment in the United States. See Compl. ¶ 25, ECF No. 1; 8 U.S.C. § 1153(b)(5)(A)(i)–(ii). Immigrants who contribute to “employment creation” of at least ten jobs by investing at least $1,000,000 in a new commercial enterprise or at least $500,000 in a “targeted employment area” are eligible for an EB-5 visa.1 See 8 U.S.C. § 1153(b)(5)(A)(i)–(ii), (b)(5)(C)(i)–(ii); Compl. ¶ 25; Mem. P. & A. Supp. Defs.’ Mot. Dismiss (“Defs.’ Mot.”) at 1–2, ECF No. 5-1. One way to satisfy the EB-5 requirements is to invest in a designated “regional center,” which pools investments from immigrant investors. See Defs.’ Mot. at 2; Devani v. U.S. Citizenship & Immigr. Servs., No. 22-cv-01932, 2023 WL 2913645, at *1 (D.D.C. Apr. 12, 2023). Congress designed the Regional Center Program as a temporary or “pilot” program that it has “periodically reauthorized.” Da Costa v. Immigr. Inv. Program Off., No. 22-5313, 2023 WL 5313526, at *3 (D.C. Cir. Aug. 18, 2023). However, the Regional Center Program’s statutory authorization expired on July 1, 2021. Defs.’ Mot. at 7. About eight and a half months later, on March 15, 2022, the President signed an appropriations bill into law that included a standalone bill revising and reauthorizing the Regional Center Program. See Consol. Appropriations Act, 2022, Pub. L. No. 117-103, Div. BB, § 103, 136 Stat. 1070, 1070–1100; Defs.’ Mot. at 7. During the period without authorization, USCIS placed previously filed I-526 petitions on hold; USCIS then resumed processing them upon reauthorization. Defs.’ Mot. at 7–8; see EB-5 1 Subsequent to Ms. Krihely’s petition, Congress increased the minimum investment levels to $1,050,000 and $800,000, respectively. See Consol. Appropriations Act, 2022, Pub. L. No. 117-103, …

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