Jain v. Jaddou

• Court: District Court, N.D. California
• Decided: June 16, 2021
• Docket: 5:21-cv-03115
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 SAURABH JAIN, et al., Case No. 21-cv-03115-VKD

9 Plaintiffs, ORDER DENYING MOTION FOR 10 v. PRELIMINARY INJUNCTION

11 TRACY RENAUD, Re: Dkt. No. 14 Defendant. 12

13 14 Plaintiffs are ten foreign nationals who applied for immigrant visas under the immigrant 15 investor visa program known as “EB-5.” 8 U.S.C. § 1153(b)(5). They allege that the U.S. 16 Citizenship and Immigration Services (“USCIS”) has unreasonably delayed adjudication of their 17 Form I-526 petitions and seek judicial review of the agency’s action under the Administrative 18 Procedure Act, 5 U.S.C. §§ 555(b), 706(1).1 Dkt. No. 1 ¶¶ 195-200. Plaintiffs now move the 19 Court for a preliminary injunction mandating that USCIS adjudicate plaintiffs’ visa petitions 20 before June 30, 2021, the date Congressional authority for the program under which plaintiffs 21 applied for their EB-5 visas is set to expire. Dkt. No. 14 at 3. Defendant Tracy Renaud, the senior 22 official performing the duties of the Director of USCIS, opposes plaintiffs’ motion for preliminary 23 injunctive relief. The Court held a hearing on the motion on June 14, 2021. For the reasons stated 24 below, plaintiffs’ motion is denied. 25 26 27 I. BACKGROUND 1 A. EB-5 Immigrant Investor Visa Program 2 The EB-5 immigrant investor visa program provides a path for immigrant investors and 3 their family members to obtain lawful permanent residence in the United States if they invest in 4 new commercial enterprises (“NCEs”) that create full-time employment for at least 10 U.S. 5 workers. 8 U.S.C. § 1153(b)(5). If a non-citizen investor chooses to invest in an NCE in a 6 “targeted employment area,”2 he or she must invest at least $500,000. 8 U.S.C. § 1153(b)(5)(C). 7 Currently, most EB-5 petitions involve investments in NCEs associated with a “Regional 8 Center.” Dkt. No. 27-3, Ex. J, Congressional Research Service Report on the EB-5 Immigrant 9 Investor Visa (updated January 26, 2021) (“CRS Report”), at 7. Multiple investors may invest in 10 the same Regional Center NCE, and they may satisfy the employment creation requirement by 11 establishing that the investment will create a sufficient number of jobs indirectly, as demonstrated 12 by accepted, reasonable methodologies.3 See 8 C.F.R. § 204.6(m)(7)(ii). 13 The Regional Center NCE program is temporary, and its continuation requires 14 reauthorization by Congress. Departments of Commerce, Justice, and State, the Judiciary, and 15 Related Agencies Appropriations Act of 1993, Pub. L. 102-395, title VI, § 610(b), 106 Stat. 1828, 16 1874 (1992); Pub. L. 102-395, title VI, § 610, 106 Stat. 1828 (1992), as amended by Pub. L. 112- 17 176, § 1, 126 Stat. 1325 (2012). Since its advent in 1992, the program has been reauthorized at 18 least six times. See CRS Report at 5 n.27, 6. The present authorization for the Regional Center 19 NCE Program will expire on June 30, 2021. Consolidated Appropriations Act of 2021, Pub. L. 20 116-120, div. O, title I, § 104, 134 Stat. 1182, 2148 (substituting “June 30, 2021” for September 21 30, 2015” in § 610(b) of Pub. L. 102-395). 22 23 24 2 “Targeted employment area” is defined as “a rural area or an area which has experienced high 25 unemployment (of at least 150 percent of the national average rate).” 8 U.S.C. § 1153(b)(5)(B)(ii). 26

3 By contrast, a non-citizen investor relying on a “Direct” EB-5 petition must show that his or her 27 NCE investment directly results in the creation of full-time employment of at least 10 U.S. B. The EB-5 Petition Process 1 The first step in the EB-5 petition process is the filing of a USCIS Form I-526 and payment 2 of the $3,675 filing fee. CRS Report at 9. The petitioner must show that he or she meets all of the 3 statutory and regulatory requirements of the program, in addition to the investment amount and 4 employment creation requirements. 8 C.F.R. § 204.6(m)(1), (7); 58 Fed. Reg. 44606, 44607. 5 If USCIS approves the Form I-526, the petitioner may apply to adjust his or her status to a 6 two-year conditional permanent resident status. CRS Report at 10. In addition, the petitioner 7 becomes entitled to certain interim benefits. Id. at 11. 8 At the final step in the process, the petitioner files a Form I-829 petition in which the 9 petitioner must show that he or she has complied with the requirements of the EB-5 program and 10 is otherwise eligible for removal of the conditions attached to the petitioner’s status. Id. If the 11 petition is successful, the USCIS removes the conditions, and the petitioner obtains permanent 12 resident status. Id. at 11–12. 13 C. USCIS’s “Visa Availability” Review Process 14 Until recently, USCIS reviewed and adjudicated Form I-526 petitions on a “first in, first 15 out” basis—i.e., the petitions were processed in the order of filing. Dkt. No. 27-2, Ex. E, at 1-2. 16 In the spring of 2020, USCIS announced the adoption of a “visa availability” approach to 17 processing these petitions. Dkt. No. 27-2, Ex. D (“USCIS Adjusts Process for Managing EB-5 18 Visa Petition Inventory”), at 1. This approach takes into account the availability of visas for an 19 immigrant’s country of chargeability (typically, the country of birth) and gives highest priority to 20 petitions for which visas are or soon will be available.4 See id. After considering the availability 21 of visas, USCIS considers several other factors, including whether the relevant NCE has already 22 been reviewed and when the petition was filed (i.e., “first in, first out”). Dkt. No. 27-2, Ex. E 23 (“Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach”), at A1, 24 A14. 25 26 27 D. Plaintiffs’ Allegations 1 In this case, plaintiffs are nationals of several countries, including India, the Czech 2 Republic, Afghanistan, Canada, and the United Kingdom. See Dkt. No. 1-1 (plaintiffs’ 3 declarations). Each filed a Form I-526 petition in 2019 as part of the EB-5 Regional Center 4 program and invested at least $500,000 in an NCE in an effort to qualify for a visa. Dkt. No. 1 ¶¶ 5 90-92 (Jain), 101-03 (Saraf), 112-14 (Bleach), 123-25 (Khan), 134-36 (Nwankor), 144-46 6 (Shahand), 153-55 (Arora), 162-64 (Donocik), 172-74 (Bhandari), 183-85 (Grundleger). Plaintiffs 7 Jain, Saraf, Khan, Bhandari, and Grundleger currently reside in the United States in lawful 8 nonimmigrant status. Id. ¶¶ 96, 107, 129, 178, 189. The remaining plaintiffs reside outside the 9 United States. 10 At the time the complaint was filed, plaintiffs’ Form I-526 petitions had been pending for 11 between 17 months and 25 months. Id. ¶¶ 91, 102, 113, 124, 135, 145, 154, 163, 173, 184. 12 Plaintiffs allege that adjudication of their petitions has been delayed as part of a dramatic decrease 13 in USCIS’s processing of Form I-526 petitions. Id. ¶¶ 48-55. According to plaintiffs, USCIS 14 completed adjudication of over 12,000 petitions in FY 20175 and over 15,000 petitions in FY 15 2018, but adjudicated only 4,492 petitions in FY 2019 and only 3,421 petitions in FY 2020. Dkt. 16 No. 14 at 8–9. Plaintiffs project that USCIS will complete adjudication of approximately 4,492 17 petitions in FY 2021. Id. at 9. Meanwhile, USCIS reported average processing times of 16.6 18 months for petitions adjudicated in FY 2017 but 31.2 months for petitions adjudicated in FY 2020. 19 Id. at 10. In April 2021, USCIS reported processing times for immigrant investors not born in 20 mainland China ranging from a low of 30 months to a high of 54 months. Dkt. No. 1 ¶ 55. 21 Plaintiffs allege that, as evidenced by the pendency of their petitions and USCIS’s own 22 reporting of average processing times, USCIS has unreasonably delayed adjudication of Form I- 23 526 petitions generally and their petitions in particular. Dkt. No. 14 at 6–18. 24 II. LEGAL STANDARD 25 “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 26

27 5 The fiscal year runs from October 1 of one year and ends on September 30 of the following year. 1 v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary 2 injunction must establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer 3 irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, 4 and (4) an injunction is in the public interest. All. for the Wild Rockies, 632 F.3d 1127, 1131 (9th 5 Cir. 2011) (citing Winter, 555 U.S. at 20). These factors are evaluated on a sliding scale, whereby 6 a stronger showing on one factor may offset a weaker showing on another. Id. at 1131–34. 7 “A mandatory injunction ‘orders a responsible party to take action.’” Marlyn 8 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quoting 9 Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996)). Such an order goes well beyond maintaining 10 the status quo and is, therefore, particularly disfavored. Id. In general, “mandatory injunctions 11 ‘are not granted unless extreme or very serious damage will result and are not issued in doubtful 12 cases or where the injury complained of is capable of compensation in damages.’” Id. (quoting 13 Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 1980)). 14 III. DISCUSSION 15 Plaintiffs seek a preliminary mandatory injunction ordering USCIS to adjudicate plaintiffs’ 16 Form I-526 visa petitions before June 30, 2021. The APA requires an administrative agency to 17 “conclude a matter” presented to it “within a reasonable time.” 5 U.S.C. § 555(b). A reviewing 18 court may compel agency action that is “unlawfully withheld or unreasonably delayed.” 5 U.S.C. 19 § 706(1). Here, plaintiffs claim that USCIS has “unreasonably delayed” adjudication of their 20 Form I-526 petitions, and that because Congressional authorization for the Regional Center NCE 21 program will soon expire, a mandatory injunction is warranted. 22 The Court considers each of the Winter factors below. 23 A. Likelihood of Success on the Merits 24 As an initial matter, USCIS argues that plaintiffs are unlikely to succeed on the merits of 25 their delay claim because their Form I-526 petitions have been pending for less than the average 26 time it takes the agency to process other similarly situated petitioners’ petitions. Dkt. No. 27 at 27 10–11 (citing cases where posted processing times served as a useful guide as to whether the 1 another judge in this district has observed, “depending on the grounds for the delays, even 2 processing times at the low end of the range could be unreasonable.” Raju v. Cuccinelli, No. 20- 3 cv-01386-AGT, 2020 WL 4915773, at *3 (N.D. Cal. Aug. 14, 2020). While USCIS’s reported 4 processing ranges provide context for plaintiffs’ claim of delay, the ranges do not necessarily 5 show that plaintiffs’ wait times are reasonable—“[a]n unreasonable delay that applies to every 6 applicant is still unreasonable.” Id. (citing Camarena v. Cuccinelli, No. 19-CV-5643, 2020 WL 7 550597, at *3 (N.D. Ill. Feb. 4, 2020)). 8 Ordinarily, courts in the Ninth Circuit consider the six factors set out in 9 Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”), 10 in evaluating whether agency action has been unreasonably delayed. Indep. Min. Co. v. Babitt, 11 105 F.3d 502, 507 n.7 (9th Cir. 1997); see also In re Nat. Resources Def. Council, 956 F.3d 1134, 12 1138–39 (9th Cir. 2020) (applying the TRAC factors to determine whether the EPA had 13 unreasonably delayed its response to an administrative petition, such that a writ of mandamus6 was 14 warranted). The TRAC factors are: “(1) the time agencies take to make decisions must be 15 governed by a ‘rule of reason’[;] (2) where Congress has provided a timetable or other indication 16 of the speed with which it expects the agency to proceed in the enabling statute, that statutory 17 scheme may supply content for this rule of reason[;] (3) delays that might be reasonable in the 18 sphere of economic regulation are less tolerable when human health and welfare are at stake[;] (4) 19 the court should consider the effect of expediting delayed action on agency activities of a higher or 20 competing priority[;] (5) the court should also take into account the nature and extent of the 21 interests prejudiced by the delay[;] and (6) the court need not ‘find any impropriety lurking behind 22 agency lassitude in order to hold that agency action is unreasonably delayed.’” Indep. Min. Co., 23 105 F.3d at 507 n.7 (citing TRAC, 750 F.2d at 80). 24 1. Rule of Reason 25 The most important TRAC factor is the first factor, the “rule of reason.” In re Nat. 26 6 Courts treat claims challenging unreasonable agency delay under the Mandamus and Venue Act 27 of 1962, 28 U.S.C. § 1361, identically to claims for relief under § 706 of the APA. Indep. Min. 1 Resources Def. Council, 956 F.3d at 1139. Plaintiffs urge the Court to find that USCIS’s “visa 2 availability” approach is not a “complete” rule of reason because USCIS has not identified a 3 “consistent rationale, workflow, or processing logic” for how it assigns Form I-526 petitions for 4 adjudication. Dkt. No. 14 at 8. The Court disagrees. As plaintiffs acknowledge, USCIS describes 5 its visa availability approach as follows: USCIS first identifies Form I-526 petitions for which a 6 visa is currently available. Dkt. No. 27-2, Ex. E, at 1. Then, “[w]orkflows are generally managed 7 in FIFO [first in, first out] order.” Id. at 4. These workflows also factor in whether “[t]he 8 underlying project has been reviewed.” Id. Plaintiffs argue that USCIS cannot consider both the 9 filing order of the petition and the status of the underlying project, arguing, “[e]ither USCIS 10 manages its inventory of ‘current’ Forms I-526 on a strict first in, first out basis or it prioritizes 11 Forms I-526 that relate to an NCE that has already been reviewed.” Dkt. No. 14 at 8. But 12 plaintiffs cite no authority supporting their view that only a rigid rule of priority will suffice, and 13 that the agency is not permitted to consider multiple factors in deciding which petitions to consider 14 for adjudication. Indeed, all of the district courts that have considered this question have 15 concluded that the visa availability approach satisfies the rule of reason. See Order, Nadhar v. 16 Renaud, No. CV-21-00275-PHX-DLR, at *5 (D. Ariz. Jun. 11, 2021), Dkt. No. 33 (the USCIS 17 visa availability approach satisfies the first TRAC factor); Desai v. USCIS, No. 20-1005 (CKK), 18 2021 WL 1110737, at *5 (D.D.C. Mar. 22, 2021) (same); Thakker v. Renaud, No. 20-1133 (CKK), 19 2021 WL 1092269, at *6 (D.D.C. Mar. 22, 2021) (same); Nohria v. Renaud, No. 20-cv-2085, 20 2021 WL 950511, at *6 n.5 (D.D.C. Mar. 14, 2021) (same); Palakaru v. Renaud, No. 1:20-cv- 21 02065 (TNM), 2021 WL 674162 (D.D.C. Feb. 22, 2021) (a process that prioritizes I-526 petitions 22 for which visas are available, factors in whether the underlying project has been reviewed, and 23 otherwise manages workflows in a first-in, first-out order is “reasonable”). 24 Plaintiffs also argue that even if USCIS’s visa availability approach is a rule of reason, the 25 agency does not consistently apply the rule. Dkt. No. 14 at 8–11. They point to the recent 26 substantial increases in processing times and decreases in total number of adjudications 27 completed. Dkt. No. 14 at 8–9. According to plaintiffs, “[b]ecause USCIS implemented the vis[a] 1 applying this approach “because its productivity has, at best, remained static.” Dkt. No. 14 at 9. 2 Additionally, in their reply brief, plaintiffs refer to the declaration of Jennifer Duncan, Acting 3 Chief of Staff for the Immigrant Investor Program Office at USCIS, filed in another action, which 4 describes USCIS’s purportedly inadequate data collection and reporting efforts. Dkt. No. 29-1 at 5 1-3. Citing this declaration, plaintiffs contend “[i]f the Agency has no idea how long it takes to 6 adjudicate a Form I-526, it cannot defend the 18-26 months waits in this case.” Dkt. No. 29 at 2. 7 The Court agrees that the decline in productivity is significant and that USCIS has not fully 8 explained it. But plaintiffs bear the burden of establishing a likelihood of success on the merits, 9 and their showing is too meager to support their present contention that USCIS is not actually 10 applying the visa availability approach.7 Among other things, plaintiffs fail to account for the 11 many other factors that may impact the agency’s adjudication of petitions, such as staff attrition 12 (the number of total personnel fell from 245 to 236), Dkt. No. 27 at 15 n.14, and greater 13 coordination between USCIS and law enforcement agencies to enhance the integrity of the 14 program. See Dkt. No. 27-2, Ex. I (“EB-5 Stakeholder Engagement (March 13, 2020)”), at 6 15 (positing that case completion rates have decreased because of activities to protect the program 16 from abusive actors). 17 Finally, plaintiffs contend that USCIS does not follow a rule of reason because some Form 18 I-526 petitions from investors who are similarly situated to plaintiffs have obtained expedited 19 processing for their petitions. Dkt. No. 14 at 11, Dkt. No. 1-2. When pressed at the hearing, 20 plaintiffs’ counsel conceded that this “expedited” treatment was the result of litigation efforts on 21 behalf of other plaintiffs in other actions. See Stipulation of Dismissal, Gutta v. Renaud, No. 20- 22 cv-06579-DMR, 2021 WL 533757 (N.D. Cal. Mar. 11, 2021), Dkt. No. 38; Stipulation and Order 23 of Dismissal, Raju v. Cuccinelli, No. 3:20-cv-1386 (AGT), 2020 WL 4915773 (N.D. Cal. Sept. 9, 24 2020), Dkt. No. 30. Moreover, plaintiffs concede that they have not applied for expedited 25 7 Plaintiffs’ reliance on Solis v. Cissna, No. CV 9:18-00083-MBS, 2019 WL 8219790, at *17 26 (D.S.C. July 11, 2019) is misplaced. In that case, the court considered competing motions for summary judgment involving delayed processing of U-visa applications, and concluded that 27 USCIS had failed to carry its burden on the first TRAC factor, in part, because USCIS’s own data 1 treatment of their petitions, even though USCIS will consider an “expedite request” that meets its 2 published criteria. Dkt. No. 27-2, Ex. I (“Chapter 5—Requests to Expedite Applications or 3 Petitions,” USCIS Policy Manual).8 4 Accordingly, the first TRAC factor weighs in favor of USCIS. 5 2. Congressional Timetable 6 The second TRAC factor considers whether Congress has provided an indication of the 7 speed with which it expects an agency to act. Here, Congress has not mandated a timeline to 8 process Form I-526 petitions, like plaintiffs’. However, a 2000 statute authorizing funds to 9 eliminate a then-existing backlog of certain immigration petitions provides: “It is the sense of 10 Congress that the processing of an immigrant benefit application should be completed not later 11 than 180 days after the initial filing of the application[.]” 8 U.S.C. § 1571(b) (emphasis added). 12 But this “sense of Congress” provision is “merely precatory,” and creates no enforceable rights. 13 See Yang v. Cal. Dept. of Social Servs., 183 F.3d 953, 958 (9th Cir. 1999); see also Monahan v. 14 Dorchester Counseling Center, Inc., 961 F.2d 987, 994–95 (1st Cir. 1992). Moreover, plaintiffs 15 concede that this sense of Congress was not directed to Form I-526 petitions specifically, but 16 rather to any “immigrant benefit application.” Hearing on Motion for Preliminary Injunction, Jain 17 v. Renaud, No. 21-cv-3115-VKD (Jun. 14, 2021), Dkt. No. 32. 18 While the “sense of Congress” is informative, and favors plaintiffs’ argument the delays 19 they have experienced greatly exceed that “sense,” Congress has so far chosen not to mandate a 20 timeline for adjudicating Form I-526 petitions. See Yang, 183 F.3d at 958 (concluding that the 21 “sense of Congress” language bestows no enforceable rights); but see Keller Wurtz v. USCIS, No. 22 20-cv-2163-JCS, 2020 WL 4673949, at *5 (Aug. 12, 2020) (finding that although 8 U.S.C. 23 § 1571(b) does not mandate a timeline, it weighed in favor of finding the delay at issue 24 unreasonable); Islam v. Heinauer, 32 F. Supp. 3d 1063, 1073 (N.D. Cal. 2014) (same). 25 On the present record, the Court concludes that the second TRAC factor is neutral. 26 8 These criteria include “severe financial loss to a company or person,” “emergencies and urgent 27 humanitarian reasons,” a nonprofit organization’s request in furtherance of the cultural and social 3. Nature of Interests 1 The third and fifth TRAC factors overlap, requiring this Court to consider whether 2 plaintiffs’ claim implicates human health and welfare, as well as the nature and extent of the 3 interests prejudiced by the delay. See Indep. Min. Co., 105 F.3d at 509; Islam, 32 F. Supp. 3d at 4 1073. Plaintiffs’ supporting declarations largely describe economic and lifestyle interests that are 5 adversely affected by USCIS’s delay. For example, one applicant, a national of the Czech 6 Republic, is “unable to properly and diligently supervise some of [his] investments and ventures,” 7 Dkt. No. 1-1 at 6; another, a national of the United Kingdom, is “desperate to rectify the mistake 8 [of moving to New Zealand],” where she and her husband “do not belong,” Dkt. No. 1-1 at 11-12. 9 Many plaintiffs attest to the stress they experience as a result of the delay in processing their 10 petitions. However, plaintiffs do not make a persuasive showing of prejudice to the kind of 11 serious health and welfare interests that would support a mandatory preliminary injunction. Cf. 12 Keller Wurtz, 2020 WL 4673949, at *5 (finding that plaintiff’s allegation that she could not visit 13 her elderly father in Mexico went beyond merely commercial concerns, although “not as strongly 14 as it might if Keller Wurtz faced persecution, medical consequences, or other more severe harm if 15 not granted relief”); Ray v. Cuccinelli, No. 20-cv-06279-JSC, 2020 WL 6462398, at *9 (N.D. Cal. 16 Nov. 3, 2020) (finding third and fifth TRAC factors weighed in favor of plaintiffs, who could lose 17 employment eligibility); Najafi v. Pompeo, No. 19-cv-05782-KAW, 2019 WL 6612222, at *7 18 (N.D. Cal. Dec. 5, 2019) (finding family separation tilted the third and fifth TRAC factors toward 19 plaintiffs). 20 Once the current Regional Center NCE program expires, Congress may not reauthorize it, 21 and plaintiffs’ interests include not merely whether the program will be reauthorized, but when. 22 However, as plaintiffs acknowledge, reauthorization legislation has already been introduced, see 23 “EB-5 Reform and Integrity Act of 2021,” S. 381, 117th Cong. § 2 (2021), and the history of prior 24 reauthorizations is not inconsistent with the expectation that Congress will indeed reauthorize the 25 program. 26 Accordingly, the Court finds that the third and fifth TRAC factors weigh against plaintiffs. 27 4. Effect of Expediting Delayed Action 1 The fourth TRAC factor requires the Court to consider the effect of expediting adjudication 2 of plaintiffs’ applications “on agency action of a higher or competing priority.” Islam, 32 F. Supp. 3 3d at 1073; Ray, 2020 WL 6462398, at *10; Keller Wurtz, 2020 WL 4673949, at *5; Najafi, 2019 4 WL 6612222, at *7. Here, plaintiffs argue that advancing the adjudication of plaintiffs’ petitions 5 will not prejudice USCIS, particularly when all plaintiffs are from countries with visas available 6 and each invested in an NCE that has already been reviewed by the agency. Dkt. No. 14 at 15. At 7 most, they argue, advancing adjudication of plaintiffs’ petitions will have a “de minimis impact on 8 applications of the same priority that use the same resources.” Id. 9 Most courts have found that the fourth TRAC factor weighs heavily in the agency’s favor 10 when a judicial order putting plaintiffs at the head of the line would simply move all others back 11 one space and produce no net gain. Ray, 2020 WL 6462398, at *10 (citing Mashpee Wampanoag 12 Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003)); Thakker, 2021 WL 13 1092269, at *7; Desai, 2021 WL 1110737, at *7; Palakuru, 2021 WL 764162, at *5; but see 14 Keller Wurtz, 2020 WL 4673949, at *5 (without evidence showing that granting relief to plaintiffs 15 would serve only to delay other equally deserving applications, the court could not grant the 16 government’s motion to dismiss plaintiff’s unreasonable-delay claim). USCIS argues that this is 17 precisely the effect a mandatory injunction in plaintiffs’ favor would have. Dkt. No. 27 at 19-20. 18 In an effort to distinguish this authority, plaintiffs contend that in 2017, well before 19 plaintiffs’ filed their petitions, USCIS demonstrated an ability to “adjudicate[] 60.7 [Form I-526] 20 petitions per day.” Dkt. No. 14 at 16. This argument does not persuade, as it does not address the 21 circumstances in which USCIS currently processes EB-5 applications. See Dkt. No. 27-2, Ex. E, 22 at 2; Dkt. No. 27-2, Ex. I, at 6. Plaintiffs make no showing that would justify moving them to the 23 head of the queue, or why their petitions should be processed immediately while other similarly- 24 situated petitioners wait their turn. If, in fact, USCIS’s delay in processing is unreasonable, as 25 plaintiffs contend, the impact is not unique to these plaintiffs. Cf. Liu v. Mayorkas, No. 20-cv-654 26 (CRC), 2021 WL 2115209, at *5 (May 25, 2021) (fourth TRAC factor “essentially neutral” where 27 plaintiff alleged “not that USCIS assigned him the wrong place in line,” but that the “line as a 1 whole” was moving too slowly). 2 The Court finds that the fourth TRAC factor weighs in favor of USCIS. 3 5. Impropriety 4 The sixth and final TRAC factor instructs this Court not to place undue weight on the 5 absence of improper motive. Keller Wurtz, 2020 WL 467949, at *6. A finding of a delay in bad 6 faith, however, makes that delay unreasonable. See Indep. Min. Co., 105 F.3d at 510. 7 Here, plaintiffs argue that the “appearance of impropriety is palpable.” Dkt. No. 14 at 17. 8 For support, they provide links to blog posts and news articles quoting immigration attorneys. 9 Dkt. No. 14 at 17–18. Plaintiffs argue that these websites are evidence that the previous 10 presidential administration acted in bad faith to “gut[]” the immigration system. Dkt. No. 14 at 11 17–18. The Court’s review of these links led to unavailable webpages and, where the sites were 12 available, to blog comments filled with speculation. Accordingly, the Court finds that this factor 13 does not contribute in any meaningful way to the Court’s consideration of plaintiffs’ likelihood of 14 success on the merits. 15 The Court concludes that the first, third, fifth, and fourth TRAC factors weigh in favor of 16 USCIS; the second factor is neutral; and the sixth is irrelevant. While plaintiffs have raised 17 serious questions concerning USCIS’s productivity, they have not demonstrated a likelihood that 18 they will succeed in establishing that USCIS unreasonably delayed adjudication of their Form I- 19 526 petitions. 20 B. Irreparable Injury 21 To demonstrate irreparable injury, plaintiffs must show more than a mere “possibility” of 22 irreparable harm. See Winter, 555 U.S. at 22. They must demonstrate that “irreparable injury is 23 likely in the absence of an injunction.” Id.; see Najafi, 2019 WL 6612222, at *8 (plaintiff 24 demonstrated irreparable injury when she remained unable to enter the United States to visit her 25 ailing, elderly mother). 26 Plaintiffs argue that without the relief requested they will suffer “irreparable harm.” Dkt. 27 No. 14 at 18. They incorporate by reference their arguments in favor of the third and fifth TRAC 1 plaintiffs’ favor. The Court thus focuses on plaintiffs’ argument that because the statutory 2 provision authorizing their EB-5 pathway is set to expire on June 30, 2021, they stand to lose their 3 immigrant visas and will either remain in nonimmigrant status abroad or within the United States. 4 Id. 5 First, as USCIS notes, plaintiffs are not certain to obtain an EB-5 immigrant visa and so 6 their loss of this not-yet-obtained benefit is speculative. Dkt. No. 27 at 21. Moreover, those 7 plaintiffs who currently hold nonimmigrant visas have not alleged that they stand to lose their 8 current visas. Rather, plaintiffs stand to lose their opportunity to obtain EB-5 visas, or perhaps 9 their place in the USCIS processing queue. 10 Here, even if the relevant statutory provision expires on June 30, 2021, plaintiffs provide 11 no evidence that their EB-5 visa applications will disappear or that they will be sent to the back of 12 the line. In fact, during the most recent lapse in authorization, between December 2018 and 13 January 2019, USCIS alerted the public that “[USCIS] will put unadjudicated regional center- 14 affiliated Forms I-526 and I-485 (whether filed before or after expiration date) on hold for an 15 undetermined length of time.” Dkt. No. 27-4, Ex. N, at 1. As USCIS observes, the Regional 16 Center NCE program through which plaintiffs applied has been reauthorized on numerous 17 occasions, and in the past months, both houses of Congress have introduced legislation to 18 reauthorize the program. Dkt. No. 27 at 22. 19 Second, to the extent plaintiffs’ investments in NCEs is placed at risk by the expiration of 20 Congressional authorization, this is precisely the kind of economic harm that can be redressed 21 through money damages, and is not, therefore, irreparable. Los Angeles Memorial Coliseum 22 Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980) (injuries, “however 23 substantial,” in terms of money, time, or energy do not constitute irreparable harm). 24 Accordingly, the Court concludes that plaintiffs have not demonstrated that irreparable 25 harm is likely absent an injunction. 26 C. Balancing the Equities 27 In balancing the equities, courts in the Ninth Circuit weigh the hardships to all parties. See 1 843–44 (9th Cir. 2007) (a court must balance the competing claims of injury and consider the 2 effect on each party of the granting or withholding of the injunctive relief). Here, as discussed, 3 plaintiffs face chiefly economic hardship (significant in some circumstances), and adverse impacts 4 to their lifestyles and personal aspirations. The Court acknowledges that the delay plaintiffs have 5 experienced, and continue to experience, makes them unable to plan for the future with certainty. 6 On the other hand, USCIS contends that “Form I-526 filings are often thousands of pages long and 7 among the most complicated form types adjudicated by USCIS.” Dkt. No. 27 at 24–25. The 8 agency argues that a mandatory injunction requiring adjudication of plaintiffs’ 10 petitions before 9 June 30, 2021 would impose a “significant operational burden on USCIS.” Id. at 25. 10 The record is not well-developed by the parties on this point. USCIS does not detail the 11 “significant” operational burdens it says an injunction would impose. Plaintiffs’ declarations 12 provide more information, but the nature of the purported hardships they will experience is not 13 particularly severe. As between plaintiffs and USCIS, the balance of hardships does not tilt 14 significantly in either direction. 15 D. Public Interest 16 Finally, plaintiffs argue that an injunction is in the public interest because “the public has 17 an interest in a government agency that acts lawfully, consistently, rationally, and with a sense of 18 predictability,” and that an injunction from this Court will reinforce that interest. Dkt. No. 14 at 19 19. The Court struggles to see how advancing plaintiffs’ applications in line, ahead of other 20 similarly situated applicants, will reinforce the interest they describe. Certainly, the public has an 21 interest in USCIS’s processing Form I-526 petitions expeditiously and without unreasonable 22 delay, but the relief plaintiffs request does not advance that interest. As USCIS observes, 23 “[n]umerous I-526 petitioners have been waiting longer than Plaintiffs, and they have a strong 24 interest in the visa availability approach’s [first-in, first-out] component.” This factor thus weighs 25 against plaintiffs. 26 IV. CONCLUSION 27 For the reasons set forth above, the Court DENIES plaintiffs’ motion for a mandatory 1 IT IS SO ORDERED. 2 Dated: June 16, 2021 3

VIRGINIA K. DEMARCH 5 United States Magistrate Judge 6 7 8 9 10 11 12

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