Florida Eb5 Investments, LLC v. Wolf

• Court: District Court, District of Columbia
• Decided: March 6, 2020
• Docket: Civil Action No. 2019-3573
• Status: Published

Opinion

UNITED ST ATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FLORIDA EBS INVESTMENTS, LLC, ) ) Plaintiff, ) ) v. ) Civil Case No. 19-3573 (RJL) ) CHAD WOLF, et al. ) ) · Defendants. )

MEMORANDUM OPINION +fA March 5 , 2020 [Dkt. #2] Plaintiff Florida EBS Investments, LLC, a Florida-based Regional Center that

sponsors capital investment projects using funds from foreign investors who are EB-5

Immigrant Investor Program applicants, seeks a preliminary injunction against defendants,

the Acting Secretary of the Department of Homeland Security Chad Wolf, the Acting

Director of United States Citizenship & Immigration Services Kenneth T Cuccinelli, and

the Policy Branch Chief of the Immigrant Investor Program Office Edie Pearson. See

Cornpl. [Dkt. # 1]. Plaintiff seeks to enjoin defendants from implementing certain changes

to the U.S. Department of Homeland Security's EB-5 Immigrant Investor Program,

including an increase to the minimum investment threshold for foreign nationals to obtain

EB-5 visas and a new definition of and method of designating targeted employment areas

subject to a reduced investment threshold. See id. ~~ 58-84; PL 's Mot. for Prelim. Inj.

[Dkt. #2]. Upon consideration of the parties' briefing and argument, the relevant law, and the

entire record, and for the reasons stated below, plaintiffs motion for a preliminary

injunction is DENIED.

BACKGROUND

I. Regulatory Background

Since 1990, the EB-5 Immigrant Investor Program ("the Program") has offered

foreign nationals and their families the opportunity to become permanent U.S. residents

when they invest money in American businesses ,, that create at least ten American jobs. See

8 U.S.C. § l 153(b)(5). The Immigration and Nationality Act ("INA") prescribed that "the

amount of capital required" to obtain such a visa is $1,000,000 and that the Secretary of

Homeland Security "may from time to time prescribe regulations increasing the dollar

amount specified." Id. § l l 53(b )(5)(C)(i). The INA also allows a reduced threshold for

investments made in targeted employment areas, provided that the reduced threshold is set

at "not less than [50%] of' the standard investment threshold. Id. § l 153(b)(5)(C)(ii).

Under the INA, a targeted employment area subject to the reduced threshold may be either

"an area which has experienced high unemployment ( of at least 150 percent of the national

average rate)" or a "rural area," which is any area that is not "within a metropolitan

statistical area or within the outer boundary of any city or town having a population of

20,000 or more." Id. § 1153(b )(5)(B)(ii)-(iii).

Until recently, the U.S. Department of Homeland Security ("the Department")

maintained the standard investment threshold at $1 million and the reduced investment

threshold at $500,000, as originally set by the INA in 1990. See 8 C.F.R. § 204.6(f) (2018).

2 In July 2019, however, the Department finalized a rule increasing the standard investment

threshold to $1.8 million and the reduced investment threshold to $900,000. EB-5

Immigrant investor Program, Modernization, 84 Fed. Reg. 35,750, 35,751-72 (July 24,

2019) ("the Rule"). According to the Department, "[tjhis change represents an adjustment

for inflation from 1990 to 2015 as measured by the unadjusted Consumer Price Index." id

at 35,752. That was not the only significant change the Department made. The Rule also

excluded cities and towns with a population of 20,000 or more within a metropolitan

statistical area from being designated as high unemployment areas. See id Finally, the

Rule amended regulations allowing states to designate high unemployment areas, see 8

C.F.R. § 204.6(i), and instead gave U.S. Citizenship and Immigration Services the

authority to designate high unemployment areas. See 84 Fed. Reg. at 35,752, 35,809. The

Rule went into effect on November 21, 2019.

II. Plaintiff's Challenge

Five days later, on November 26, 2019, plaintiff Florida EB5 Investments, LLC,

brought the instant action, see Comp!., and filed a Motion for a Temporary Restraining

Order and/or a Preliminary Injunction, see Mot for Prelim. Inj. At a status conference on

December 6, 2019, plaintiff withdrew its request for a temporary restraining order. See

12/6/2019 Min. Entry. After the parties concluded briefing on the preliminary injunction

motion on January 3, 2020, I heard oral argument on January 16, 2020. See 1/16/2020

Min. Entry.

Plaintiff seeks preliminary injunctive relief to prevent the Department from

increasing the investment thresholds, from excluding cities and towns with high

3 unemployment from designation as targeted employment areas, and from precluding states

from designating high unemployment areas. Plaintiff argues the Rule is flawed in four key

respects. First, plaintiff argues the Rule is arbitrary and capricious because the Department

failed to collect and, in some cases, disregarded economic data regarding whether the

increased investment thresholds would deter foreign investments. Cornpl. iril 58-61; see also id. ~~ 42-57. Second, plaintiff argues the Department failed to perform a proper

Regulatory Flexibility Act analysis of the Rule by not analyzing the impact on small

businesses. id. i1~ 62-68. Third, plaintiff argues the Rule exceeds the Department's statutory authority by vesting Citizenship and Immigration Services with the authority to

designate targeted employment areas and by creating a standard for targeted employment

areas that is contrary to the INA's plain language. Id. iril 69-76. Fourth, plaintiff argues the Rule violates the Tenth Amendment by removing states' authority to designate

localities as targeted employment areas. id. i1i1 77-84. Plaintiff's request for preliminary injunctive relief is premised on the purported harm to its business that it believes will result

from a reduction in foreign investment in the capital investment projects it sponsors with

funds from applicants to the EB-5 Program.

LEGAL STANDARD

A preliminary injunction is an "extraordinary remedy that may only be awarded

upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def

Council, inc., 555 U.S. 7, 22 (2008). To obtain preliminary injunctive relief, a plaintiff

"must establish [l] that he is likely to succeed on the merits, [2] that he is likely to suffer

irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in

4 his favor, and [4] that an injunction is in the public interest." id. at 20. Of course, the

movant carries the burden of persuasion. See Cobell v. Norton, 391 F.3d 251, 258 (D.C.

Cir. 2004).

Although our Circuit has taken no position on the "sliding scale approach," see, e.g.,

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314, 334 (D.C. Cir.

2018), "the movant must, at a minimum, 'demonstrate that irreparable injury is Likely in

the absence of an injunction."' Bili Barrett Corp. v. U.S. Dep 't of Interior, 60 l F. Supp.

2d 331, 334-35 (D.D.C. 2009) (quoting Winter, 555 U.S. at 22). The requirement of

showing irreparable harm is an independent requirement: ifa plaintiff does not demonstrate

that it is likely to suffer irreparable harm in the absence of preliminary relief, the Court

may deny the motion without considering the other factors. CityFed Fin. Corp. v. Office

of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995); see also GEO Specialty Chems.,

· Inc. v. Husisian, 923 F. Supp. 2d 143, 151 (D.D.C. 2013 ).

ANALYSIS

I. Irreparable Harm

Plaintiff must make a strong showing that it will suffer irreparable harm absent

preliminary injunctive relief. Our Circuit "has set a high standard for irreparable injury."

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290,297 (D.C. Cir. 2006). First,

the injury "must be both certain and great; it must be actual and not theoretical." Wis. Gas

Co. v. Fed. Energy Regulatory Comm 'n, 758 F .2d 669, 674 (D.C. Cir. 1985) (per curiam).

A preliminary injunction is not appropriate unless "the injury complained of [is] of such

imminence that there is a 'clear and present' need for equitable relief to prevent irreparable

5 harm." Id. (alteration in original). "Injunctions ... will not issue to prevent injuries neither

extant nor presently threatened, but only merely feared." Comm. in Solidarity with People

of El Sal. (CISPES) v. Sessions, 929 F.2d 742, 745-46 (O.C. Cir. 1991) (alteration in

original).

Second, it is "well settled" that economic harm "does not, in and of itself, constitute

irreparable harm." Wis. Gas Co., 758 F.2d at 674. "Recoverable monetary loss may

constitute irreparable harm only where the loss threatens the very existence of the movant's

business." Id.

Plaintiff asserts that the Rule "will have a devastating, irreparable impact on EB5

Investments" by deterring foreign investors from using the EB-5 Program. Pl. 's Mem. in

Support of Mot. for Prelim. Inj. ("Pl.'s Mem.") at 2 [0kt. #2-1]. Plaintiff is a Regional

Center that sponsors capital investment projects using funds from EB-5 Program

applicants. See Comp!. ir 11. It is undisputed that plaintiff's business model relies entirely

on the Program's demand: plaintiff collects 1) annual fees from project developers

affiliated with the center and 2) administration fees from individual investors, whom

plaintiff provides with a designation letter certifying that their investment qualifies for the

EB-5 Program. See Mot. for Prelim. Inj., Ex. 2, Deel. of Marty Cummins ("Cummins

Deel.")~,[ 5, 11 [0kt. #2-3]; Defs.' Opp. to Mot. for Prelim. Inj. ("Defs.' Opp.") at 4, 36

[0kt. #15]. Plaintiff cites studies indicating that the pre-Rule EB-5 Program had a positive

and strong impact on job creation and business growth to conclude that increasing the

investment thresholds would reduce demand for the Program. See Mot. for Prelim. Inj.,

Ex. 3, Deel. of Jeffrey B. Carr ii~ 4~5 [Dkt. #2-4]. As evidence of that predicted result,

6 plaintiff claims that while the Rule was pending, plaintiffs affiliates were "uncertain"

about interest from potential foreign investors,.see Cummins Deel. il 9, and after the Rule went into effect, one of plaintiff's affiliates saw a real estate development project lose 23

of its 50 potential investors due at least in part to the increased investment thresholds, see

Pl. 's Reply in Support of Mot. for Prelim. Inj., Ex. 1, Email from Catherine Herrin-Clark

("Benin-Clark Email") at 1 [Dkt. #16-1].

Unfortunately for plaintiff, these speculative economic mjunes fail to establish

irreparable harm. How so? Plaintiffs claim of irreparable economic harm relies on the

Rule eliminating or significantly reducing foreign investment through the EB-5 Program,

such that plaintiff's annual fees and administration fees associated with Program demand

would significantly decline. Only then would the loss "threaten]'] the very existence of the

movant's business." Wis. Gas Co., 758 F.2d at 674. This relationship has simply not been

shown to be "certain" and "actual," rather than merely "theoretical." Id.; see also GEO

Specialty Chems., 923 F. Supp. 2d at 148 ("Only where a plaintiff establishes that the

economic Joss is so severe as to threaten the very survival of its business can economic

harm qualify as irreparable."). A preliminary injunction "will not be granted against

something merely feared as liable to occur at some indefinite time." Connecticut v.

Massachusetts, 282 U.S. 660, 674 (1931 ). Plaintiff has provided one example of a real

estate development project in Florida that lost some of its potential investors. See Henin-

Clark Email at 1. To say the least, one data point does not a trend establish. Put simply,

plaintiff has not shown that a significant number of existing investors on many projects

will be deterred. See Nat 'l Mining Ass 'n v. Jackson, 768 F. Supp. 2d 34, 52 (D.D.C.2011 ).

7 Nor has it negated the Department's position that the increased investment threshold will

actually increase the overall amount of capital by attracting fewer but larger investments.

See 84 Fed. Reg. at 35,786 (while "reasonable to assume some number of investors will be

unwilling or unable to invest at the increased investment amount," these capital

contributions "may very well be more than replaced by other investors investing at the

higher minimum investment levels"). The movant bears the burden of "provid[ing] proof

that the harm has occurred in the past and is likely to occur again, or proof indicating that

the harm is certain to occur in the near future." Wis. Gas Co., 758 F.2d at 674. Plaintiff

has done neither.

Plaintiffs reliance on Art-Metal USA, Inc. v. Solomon, 473 F. Supp. 1 (D.D.C.

1978), is misplaced. There, the court found irreparable harm where the General Services

Administration effectively debarred a company from entering into contracts with the GSA,

which had been the primary source of the company's business. Id at 3-4. The

Department's Rule, on the other hand, poses no such bar. Plaintiff has failed to show

through the email from one affiliate about one project losing investors that the Rule will

cause all or significantly all foreign investment through the EB-5 Program to dry up.

Plaintiffs estimate that its annual fee income will be reduced "to as little as $100,000" in

administration fees, Cummins Deel. i, 11, amounts to nothing more than speculation. As

plaintiff explained, it has approximately 40 active affiliates and has had annual profits

ranging from $400,000 to $1.1 million. Id ~ 5. Plaintiff acknowledged that its current

affiliates "must continue to pay fees while foreign investors await their visa approvals."

Id ~ 11. Indeed, the EB-5 Program was "hugely oversubscribed" at the pre-Rule

8 investment thresholds, 84 Fed. Reg. at 35,762-63; plaintiff fails to show the increased

thresholds will dramatically reduce this overwhelming demand. Mere "uncertain[ty] about

the sustainability of the Program," Cummins Deel. ~ 9, to say the least, is not the type of

concrete harm that is required to justify preliminary injunctive relief.

Plaintiffs delay in seeking a preliminary injunction also undercuts its asserted

harms. The Department published the final rule in July 2019, see Final Rule, EB-5

Immigrant Investor Program Modernization, 84 Fed. Reg. 35,750 (July 24, 2009), and

made clear the Rule would go into effect on November 21, 2019. See id Still, plaintiff

waited until five days after the Rule went into effect in November 2019 to attempt to

challenge it. See Comp!. [Dkt. #1]. This delay directly undercuts plaintiffs argument that

its economic harm is so imminent that there is a "clear and present need for equitable relief

to prevent irreparable harm," Fed Mar. Comm 'n v. City of Los Angeles, 607 F. Supp. 2d

192, 202 (D.D.C. 2009). See Fund for Animals v. Frizzell, 530 F.2d 982, 987 (O.C. Cir.

1975) (per curiam). Plaintiffs delay in filing suit further weighs against granting

preliminary injunctive relief.

IL Balance of the Equities and Public Interest

Because plaintiff fails to show irreparable injury would result from denying

preliminary injunctive relief, the Court need not reach the other factors. See GEO Specialty

Chems., 923 F. Supp. 2d at 147. However, the balance of equities and public interest

factors, which merge when plaintiff attempts to preliminarily enjoin a government action,

Nlcen v. Holder, 556 U.S. 418,435 (2009), also weigh against preliminary injunctive relief.

Plaintiff alleges preliminary relief will serve the public interest because otherwise, "EB-5

9 regional centers will suffer under the current Rule through reduced interest from investors

and developers." Pl. 's Mem. at 26. Plaintiffs primary motivation, in other words, is its

own profits. The Court must "balance the competing claims of injury and the effect an

injunction would have on each party." Fed. Mar. Comm 'n, 607 F. Supp. 2d at 203.

On the other side of the scale, plaintiff downplays the harm that an injunction would

inflict on the Government's authority to regulate the admission of foreign nationals seeking

employment-based visas. Compare Pl. 's Mem. at 26, with Defs.' Opp. at 39-40. The

Government has a strong interest in the uniform and proper application of its regulations

governing the granting of visas to foreign nationals. See Blackie 's House of Beef, inc. v.

Castillo, 659 F.2d 1211, 1220-21 (D.C. Cir. 1981). The Rule's changes were intended to

account for inflation since the creation of the EB-5 program and "ensure that the reduced

investment threshold is reserved for areas experiencing sufficiently high levels of

unemployment, as Congress intended." 84 Fed. Reg. at 35,752. In the INA, Congress

delegated to the Secretary of Homeland Security significant authority to administer and

enforce the immigration and nationality laws, including to raise the level of capital

investment required in order to account for inflation. Cf Arizona v. United States, 567

U.S. 387, 408-09 (2012). As such, I find that the harm to the Department of Homeland

Security's mandate to regulate the admission of foreign nationals that would result if I

granted a preliminary injunction outweighs the potential harm to plaintiffs and other

regional centers' business in the absence of injunctive relief. Accordingly, the balance of equities and the public interest also weigh against granting plaintiff preliminary injunctive

relief.

10 CONCLUSION

For the above reasons, the Court DENIES plaintiff's motion for a preliminary

injunction. An appropriate Order will issue with this Memorandum Opinion.

United States District Judge