Arnott v. United States Citizenship & Immigration Services

290 F.R.D. 579, 2012 WL 8527788, 2012 U.S. Dist. LEXIS 188646
CourtDistrict Court, C.D. California
DecidedOctober 22, 2012
DocketNo. SA 10-CV-1423(RNBx)
StatusPublished
Cited by7 cases

This text of 290 F.R.D. 579 (Arnott v. United States Citizenship & Immigration Services) is published on Counsel Stack Legal Research, covering District Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnott v. United States Citizenship & Immigration Services, 290 F.R.D. 579, 2012 WL 8527788, 2012 U.S. Dist. LEXIS 188646 (C.D. Cal. 2012).

Opinion

ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

DAVID 0. CARTER, District Judge.

Before the Court is a Motion for Class Certification (Dkt. 50) filed by Plaintiffs Heather Joy Arnott, et al. (Plaintiffs), in their suit against Defendants United States Citizenship and Immigration Services, Janet Napolitano, Alejandro Mayorkas, and Rosemary Melville (Defendants). After considering the moving papers and oral arguments, this Court GRANTS Plaintiffs’ motion and CERTIFIES the class.

I. Background

Plaintiffs are immigrant investors who sought lawful permanent residence in the United States through the EB-5 investor program. First Amended Complaint (FAC) (Dkt. 45) at ¶ 1. Under the Immigration and Nationality Act (INA), the EB-5 immigrant investor program allows foreign nationals and their families to become conditional permanent residents, and then lawful permanent residents, upon investment of $500,000 each in a “new commercial enterprise” in a designated “regional center” for the purpose of creating at least ten jobs for U.S. workers. Id. at ¶¶ 2-9; 8 U.S.C. § 1153(b)(5); 8 C.F.R. § 204.6(e-f). In this case, Plaintiffs’ new commercial enterprises were limited partnerships in designated regional centers in Philadelphia and Los Angeles. FAC at ¶ 1. Plaintiffs allege that each of their business plans explicitly stated that, in order to create the required number of jobs, they could make loans “to multiple job-creating businesses.” Id. at ¶ 22.

Plaintiffs each submitted individual 1-526 petitions for conditional approval of their business plans, which Defendant USCIS granted. Id. After Plaintiffs’ partnerships’ initial investments failed to create the required number of jobs, the partnerships shifted their investments to other job-creating businesses, as contemplated by their approved business plans. Id. at ¶¶ 1, 22.

As required by law, between twenty-one to twenty-four months after lawfully entering the U.S., Plaintiffs filed individual 1-829 petitions to demonstrate compliance with the EB-5 program requirements, and ultimately to have their conditional residency status adjusted to that of lawful permanent residents. Id. Currently, however, USCIS has either denied or indicated that it will deny Plaintiffs’ 1-829 petitions because Plaintiffs’ second job-creating business investment was not specifically named in their approved I-526 petitions. Id. An 1-829 denial requires immigrant investors immediately to surrender their Alien Registration Cards, leaving them without lawful immigration status in the U.S. Id.; Compl. (Dkt. 1) Ex. A at 2.

a. Gravamen of Plaintiffs’ claims

On July 2, 2012, Plaintiffs filed their First Amended Complaint.1 See FAC (Dkt. 45). [583]*583The gravamen of Plaintiffs FAC is that, even though Plaintiffs complied with the Immigrant Investor Law and created the required number of jobs with their investments, Defendants “radically and abruptly changed their rules” concerning the approval of 1-829 petitions. Mot. (Dkt. 50) at 7. Pursuant to this new USCIS rule, which Plaintiffs allege was introduced in an agency-wide “Neufeld Memorandum” on December 11, 2009, Defendants began retroactively applying a policy that disallowed “material changes” in investment strategies, leading to the recent or imminent denial of Plaintiffs’ 1-829 petitions. Id. Plaintiffs seek injunctive and declaratory relief. FAC (Dkt. 45) at 53-56.

b. Plaintiffs Motion for Class Certification

On September 24, 2012, Plaintiffs filed the instant Motion for Class Certification. See Mot. (Dkt. 50). Defendants filed their Opposition on October 1, 2012. See Defs Opp’n (Dkt. 58). Plaintiffs filed a Reply in Support of Motion for Class Certification on October 8, 2012. See Pi’s Reply (Dkt. 63).

Plaintiffs seek certification of the following class:

All conditional residents and their dependents who obtained their status by investing under the employment-based fifth-preference category and have [had] or will have their 1-829 petitions to remove their conditional residency denied, despite investing the requisite funds and employing 10 persons directly or indirectly, because of Defendants’ policy announced on December 11, 2009, that if an investor materially changed his or her investment after the approval of an 1-526 petition he or she may not receive approval of an 1-829 petition but must file another 1-526 petition and begin the process again.

Mot. (Dkt. 50) at 9-10. Plaintiffs assert six causes of action:

1) Improper retroactive application of an interpretive rule;
2) Violation of the Administrative Procedure Act (APA), 5 U.S.C. § 553 et seq.;
3) Arbitrary and capricious action in violation of the Immigration and Nationality Act and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A, D);
4) Exceeding Statutory Authority, 8 U.S.C. § 1186b; 8 C.F.R. § 216.6;
5) Violation of the Due Process Clause of the Fifth Amendment of the U.S. Constitution; and
6) Estoppel.

Mot. (Dkt. 50) at 15.

II. Legal Standard

Federal Rule of Civil Procedure 23 governs class actions. See Fed.R.Civ.P. 23. A party seeking class certification must demonstrate the following prerequisites: “(1) numerosity of plaintiffs; (2) common questions of law or fact predominate; (3) the named plaintiffs claims and defenses are typical; and (4) the named plaintiff can adequately protect the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992) (citing Fed.R.Civ.P. 23(a)). The party may not rest on mere allegations, but must provide facts to satisfy these requirements. Doninger v. Pac. Northwest Bell, Inc., 564 F.2d 1304, 1309 (9th Cir.1977) (citing Gillibeau v. Richmond, 417 F.2d 426, 432 (9th Cir.1969)).

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Bluebook (online)
290 F.R.D. 579, 2012 WL 8527788, 2012 U.S. Dist. LEXIS 188646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnott-v-united-states-citizenship-immigration-services-cacd-2012.