Punt v. United States Citizenship & Immigration Services

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VALENTIJN PUNT, : : Plaintiff, : Civil Action No.: 22-1218 (RC) : v. : Re Document No.: 3 : UNITED STATES CITIZENSHIP & : IMMIGRATION SERVICES, et al., : : Defendants. : MEMORANDUM OPINION GRANTING DEFENDANTS’ MOTION TO DISMISS I. INTRODUCTION Plaintiff Valentijn Punt (“Plaintiff” or “Punt”) brings this suit against the United States Citizenship and Immigration Services (“USCIS”), Ur Jaddou in his official capacity as Director of USCIS, Alejandro Mayorkas in his official capacity as Secretary of the Department of Homeland Security, and Alissa Emmel in her official capacity as Chief of the Immigrant Investor Program Office of USCIS (collectively, “Defendants”). Plaintiff seeks relief under the Mandamus Act (28 U.S.C. § 1361), the Administrative Procedure Act (“APA”) (5 U.S.C. § 706(1)), and the Declaratory Judgment Act (28 U.S.C. § 2201) based on allegations that Defendants have unreasonably delayed adjudication of his I-526 immigration petition. On July 11, 2022, Defendants moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Punt filed an opposition on July 26, 2022 and Defendants filed a reply on August 1, 2022. For the reasons set forth below, the Court grants Defendants’ motion to dismiss. II. FACTUAL BACKGROUND Those wishing to enter the United States may apply for one of two categories of visas: a nonimmigrant visa (to visit the United States on a temporary basis for tourism, business, study, etc.), or an immigrant visa (to live permanently in the United States). See Khamrabaeva v. Blinken, No. 22-cv-1219, 2022 WL 4446387 at *1 (D.D.C. Sept. 24, 2022). Valentijn Punt, a citizen of the Netherlands, sought an immigrant visa through the EB-5 program. See Compl. ¶ 1, ECF No. 1. The EB-5 program allots “immigrant investor visas” to those who contribute to “employment creation” by investing at least $1,000,000 (since raised to $1,050,000) in a new commercial enterprise that will create ten or more jobs, or $500,000 (since raised to $800,000) in a “targeted employment area.” See 8 U.S.C § 1153(b)(5)(A)(i)–(ii), (b)(5)(C)(i)–(ii); see Palakuru v. Renaud, 521 F. Supp. 3d 46, 47 (D.D.C. 2021). Those seeking to obtain permanent residency through the EB-5 program must first file with USCIS an I-526 petition containing evidence of a qualifying investment. “Once the petition is processed and a visa becomes available—which may take years—the immigrant advances to ‘conditional’ lawful permanent resident status.” Mirror Lake Village, LLC v. Wolf, 971 F.3d 373, 375 (D.C. Cir. 2020) (citing 8 U.S.C. § 1186b(a)). After two years, the petitioner may seek removal of the “conditional” basis of the lawful permanent resident status by submitting evidence of compliance with the statutory requirements. See id. Congress also created the Pilot Immigration Program, known as the Regional Center Program, as an “alternative path to an EB-5 visa.” Da Costa v. Imm. Investor Program Off., No. 22-cv-1576, 2022 WL 17173186, at *1 (D.D.C. Nov. 16, 2022). “Under that program, immigrant investors may satisfy the EB-5 employment-creation requirement by creating jobs …

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