Opinion
Case No. 22-CIV-21733-WILLIAMS
2023-01-09
Maria de la Consolacion OSECHAS LOPEZ, Plaintiff, v. Alejandro MAYORKAS, et al., Defendants.
Leon Fresco, Holland & Knight LLP, Washington, DC, for Plaintiff. Zakarij Neil Laux, U.S. Attorney's Office, Civil Division, Miami, FL, for Defendants.
Leon Fresco, Holland & Knight LLP, Washington, DC, for Plaintiff. Zakarij Neil Laux, U.S. Attorney's Office, Civil Division, Miami, FL, for Defendants. ORDER KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court on the Motion to Dismiss (DE 14) (" Motion ") filed by Defendants U.S. Department of Homeland Security (" DHS "), DHS Secretary Alejandro N. Mayorkas, U.S. Citizenship and Immigration Services (" USCIS "), USCIS Acting Director Ur M. Jaddou, and USCIS Chief Alissa Emmel (collectively, " Defendants "), to which Plaintiff filed a response in opposition (DE 15) (" Response ") and Defendants replied (DE 16) (" Reply "). Plaintiff then filed a notice of supplemental authority (DE 22; DE 22-1), to which Defendants responded (DE 23) and then filed their own notice of supplemental authority (DE 24), to which Plaintiff responded (DE 25). Defendants filed a final notice of supplemental authority (DE 26) shortly thereafter, to which Plaintiff responded (DE 27). Defendants move to dismiss Plaintiff's Amended Complaint (DE 9) for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) ("Rule 12(b)(1)" and "Rule 12(b)(6)"), respectively. (DE 14 at 16, 20.) Upon careful consideration of the Motion, the record, and applicable law, Defendants' Motion (DE 14) is GRANTED and this matter is DISMISSED WITHOUT PREJUDICE.
I. BACKGROUND
Although the programmatic scheme as set forth by the Immigration and Nationality Act of 1965 (" INA ") giving rise to the instant dispute is complex—a specific type of employment-based investor visa known as the "EB-5" visa, a regional investment center, and a qualifying immigration investment project resulting in development of a Tru by Hilton Hotel—the requests before the Court are relatively straightforward. (See DE 9 at 1-2.) Plaintiff Maria Alejandra de la Consolacion Osechas Lopez (" Plaintiff " or " Ms. Osechas Lopez "), asks that the Court enter a writ of mandamus or other order requiring the Defendants to adjudicate her pending immigration petition within thirty (30) days. (Id. at 9.) Defendants, in response, move to dismiss the Amended Complaint for lack of subject matter jurisdiction and for failure to state a claim, arguing that this Court is not vested with the authority to do what Plaintiff requests and that, even if it were, Plaintiff has failed to sufficiently plead a claim for relief. (DE 14 at 1-2.) Defendants also assert that, in essence, Plaintiff's Amended Complaint requests that the Court skip Plaintiff's pending immigration visa petition "to the front of the line" ahead of the petitions of other similarly situated individuals. (See id. at 17.) As to the last point the Court agrees: adjudication of this matter in Plaintiff's favor would improperly move her petition to the front of an admittedly backlogged immigration queue.
The facts giving rise to this matter are as follows: Plaintiff, a Venezuelan national, invested $500,000 in a commercial enterprise which in turn generated at least ten (10) jobs for U.S. workers, therefore qualifying Plaintiff to petition to apply for an immigration visa and subsequent lawful permanent resident status in the United States. (DE 9 at 2.) Pursuant to the relevant statutory scheme, Ms. Osechas Lopez submitted an immigration petition—the I-526 petition—on June 4, 2019 and paid the required fee. (Id.) As pled in the Amended Complaint, that initial petition was returned and a new petition was filed on June 26, 2019. (Id.) To date, Ms. Osechas Lopez's I-526 petition remains pending. (Id.)
On June 7, 2022, Plaintiff filed the Complaint, and shortly thereafter, the Amended Complaint. (DE 1; DE 9.) Plaintiff asserts in the Amended Complaint that USCIS approved the first I-526 petition arising from the same investment project that she invested in on December 22, 2020. (DE 9 at 9.) Therefore, Plaintiff contends that USCIS "has already made a determination of EB-5 compliance for the document associated with the [relevant investor project] and simply has to approve the legality of the source of funds for individual investors as part of their individual I-526 petitions." (Id.) Plaintiff argues that Defendants "willfully, and unreasonably, have delayed in and have refused to" adjudicate her I-526 petition, and that such delay is in violation of Defendants' duties pursuant the INA and governing regulations. (Id. at 13-14.) Plaintiff seeks the prompt processing of her I-526 petition via two avenues: a writ issued pursuant to the Mandamus Act, 28 U.S.C. § 1361 (" Mandamus Act ") and/or a Court order entered pursuant to the Administrative Procedure Act, 5 U.S.C. § 706 (" APA "). (DE 9 at 16.)
II. LEGAL STANDARD
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted). Consequently, courts must determine whether subject-matter jurisdiction exists. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). If a federal court determines at any time during the litigation that it lacks subject-matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). The Eleventh Circuit has held that "the party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the evidence, facts supporting the existence of federal jurisdiction." McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).
In ruling on a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), the court assumes as true all well-pled factual allegations and determines whether they plausibly give rise to an entitlement for relief. Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a complaint must contain sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiffs make a facially plausible claim when they plead factual content from which the court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a 'probability requirement' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Id. at 1950.
Although the Court resolves all doubts or inferences in the plaintiff's favor, the plaintiff bears the burden to frame the complaint with sufficient facts to suggest that she is entitled to relief. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. A pleading that offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Id. at 557, 127 S.Ct. 1955. Dismissal pursuant to a Rule 12(b)(6) motion is warranted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint." Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1310 (11th Cir. 2000) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).
III. DISCUSSION
Defendants move to dismiss the Amended Complaint for lack of subject matter jurisdiction and failure to state a claim under the Mandamus Act, and failure to state a claim under the APA. The Court first addresses the issue of subject matter jurisdiction pursuant to the Mandamus Act, and then whether Plaintiff has adequately stated a claim pursuant to the APA.
A. The Court lacks subject matter jurisdiction over Plaintiff's Mandamus Act request.
A district court may issue a writ of mandamus to compel a government agency to perform a duty pursuant to the Mandamus Act. However, a district court can issue a writ of mandamus only if: (1) the plaintiff clearly has a right to the relief that is being sought, (2) the defendant has a clear duty to act in the situation, and (3) there is no other adequate remedy available. Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003). Mandamus is "an extraordinary remedy which should be utilized only in the clearest and most compelling of cases." Id. at 1257 (quoting Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). It is Plaintiff who bears the burden of showing that the right to issuance of the writ is "clear and indisputable." Carpenter v. Mohawk Indus. Inc., 541 F.3d 1048, 1055 (11th Cir. 2008). Even if all three elements are satisfied, a writ is "granted only in the exercise of sound discretion." Whitehouse v. Ill. Cent. R. Co., 349 U.S. 366, 373, 75 S.Ct. 845, 99 L.Ed. 1155 (1955).
As a preliminary matter, Defendants are correct that Plaintiff does not explicitly discuss the three factors required by the Eleventh Circuit for mandamus relief in her Amended Complaint. (Compare DE 14 at 10, with DE 9.) However, upon review of the Amended Complaint, the Court concludes that Plaintiff does broadly discuss the factors necessary in a mandamus analysis. Because courts are required to accept well-pleaded allegations in a complaint as true, the Court proceeds in determining whether Ms. Osechas Lopez has sufficiently established this Court's subject matter jurisdiction pursuant to the Mandamus Act. Hoffend v. Villa (In re Villa), 261 F.3d 1148, 1150 (11th Cir. 2001); (DE 9 at 9-16).
The first and second factors required for the entry of a writ of mandamus are related in this case, where the question of Defendants' having a clear duty determines in large part whether Plaintiff clearly has a right to the relief sought. See Barnhart, 327 F.3d at 1258; Nyaga v. Ashcroft, 186 F. Supp. 2d 1244, 1252 (N.D. Ga. 2002), vacated on other grounds Nyaga v. Ashcroft, 323 F.3d 906 (11th Cir. 2003). Here, the question is whether Defendants have a clear duty to act on Plaintiff's I-526 petition in a specific or even general time-frame, and if the time between the submission of Plaintiff's I-526 petition and the commencement of this action constitutes an unreasonable delay by USCIS. As asserted by Plaintiff, "in order [to find] a right to Mandamus relief here, this Court need only determine whether Defendants have non-discretionary [sic] duty to act to adjudicate Plaintiff's I-526 Petition." (DE 15 at 8 (citations omitted).) But that is not the question presented: rather, the Court must determine whether Defendants have a non-discretionary duty to act to adjudicate Plaintiff's I-526 petition in a certain time frame , whether general, reasonable, or even the more specific period of "180 days." 8 U.S.C. § 1571(b).
Ms. Osechas Lopez filed an I-526 petition on June 4, 2019, and then refiled on June 26, 2019. Consequently, as of the date this action was commenced, the petition had been actively pending for approximately 27.5 months. In her Amended Complaint, Plaintiff asserts that "Defendants' refusal to act . . . is, as a matter of law, arbitrary and not in accordance with the law. Defendants willfully, and unreasonably, have delayed in and have refused to adjudicate" Plaintiff's I-526 petition. (DE 9 at 13.) Plaintiff points to 8 U.S.C. § 1571(b), which states that "[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application," for the proposition that Defendants have unreasonably delayed in processing her I-526 petition. (DE 9 at 10 (citing § 1571(b)).) But, the Eleventh Circuit holds that "should" is "permissive, rather than mandatory, language." Lambert v. Austin Ind., 544 F.3d 1192, 1196 (11th Cir. 2008). As held by the Fifth Circuit, § 1571(b)'s "sense of Congress" language "merely expresses Congress's sense of the adjudicative process," and does not indicate that USCIS has a "plainly prescribed" duty to adjudicate a petition within any specific time frame. See Bian v. Clinton, 605 F.3d 249, 255 (5th Cir. 2010), vacated on other grounds by Bian v. Clinton, 2010 WL 3633770 (5th Cir. Sept. 16, 2010). Even Plaintiff acknowledges that the question "before this Court is not whether the 180-day timeframe . . . is binding," and that "actual processing times are much longer . . . ." (DE 15 at 9, 16.) Consequently, the Court must determine if there is a clear and definite time frame as mandated by statute or regulation in which USCIS must adjudicate an I-526 petition to support Plaintiff's claim that the delay in her case is unreasonable.
The Parties agree that for approximately 8.5 months of the time between when Ms. Osechas Lopez submitted her I-526 petition and filed the initial Complaint in this matter—between approximately June 30, 2021 and March 14, 2022—there was a lapse in statutory authorization resulting in a period where the subject petition could not be adjudicated. (DE 9 at 12; DE 14 at 8; DE 15 at 5, 18.) Accordingly, the Court considers the time the subject petition had been actively pending as the time the petition could have been adjudicated by the relevant Defendants prior to the initiation of this action. The Court notes that—as pled by Ms. Osechas Lopez in the Amended Complaint—the first I-526 petition of another individual regarding the subject qualifying immigration investment project investment vehicle was approved on December 22, 2020, nearly eighteen (18) months after Ms. Osechas Lopez filed her I-526 petition. (DE 9 at 9.)
Plaintiff cites to other sources, such as a USCIS administrative Notice of Proposed Rulemaking (" NPRM "), which states that the average employee hours it takes to process an I-526 petition is 6.5 hours. (DE 9 at 11.) Plaintiff also cites to the USCIS I-526 adjudication volume for 2015 through 2020 to demonstrate the agency's capacity to process such petitions. (Id.) In the Motion, Defendants cite to median processing times for I-526 petitions: 31.1 months in 2020, 32.4 months in 2021, and 42.5 months at the time the Complaint was filed in 2022. (DE 14 at 8.) Plaintiff replies that the median processing time for applications from 2019—the year in which she filed the instant I-526 petition—was 19 months. (DE 15 at 15.) The NPRM and disputed relevant processing time, however, are neither congressionally nor administratively binding. See Alfassi v. Garland, 614 F.Supp.3d 1252, 1255-56 (S.D. Fla. July 11, 2022).
Upon review, Plaintiff has not demonstrated a clear right to the relief requested—that USCIS adjudicate her I-526 petition within thirty (30) days of this Court's order—largely because there is no congressionally or administratively prescribed timeframe within which USCIS has a duty to process or adjudicate I-526 petitions. See Alfassi, 614 F.Supp.3d at 1255-56 (granting a motion to dismiss for lack of subject matter jurisdiction pursuant to the Mandamus Act where the plaintiffs had pending I-130 petitions); Grinberg v. Swacina, 478 F. Supp. 2d 1350, 1352 (S.D. Fla. 2007) (holding that district courts are without jurisdiction to consider complaints regarding "the pace at which immigration decisions are made" in a case involving I-485 applications); see also Eldeeb v. Chertoff, 619 F. Supp. 2d 1190, 1205 (M.D. Fla. 2007) (finding that, with respect to an I-485 application, USCIS "has a non-discretionary duty to act on an application, a discretionary duty as to the pace of processing the application, and a non-discretionary duty to adjudicate an application."). All that is statutorily prescribed is that "[i]t is the sense of Congress" that an I-526 petition adjudication "should be completed not later than 180 days . . . ." § 1571(b) (emphasis added). But in this Circuit, "should" is not "must," and Ms. Osechas Lopez has failed to plead Defendants' clear duty and any right to the relief sought.
Moreover, Plaintiff's claim fails under the third factor considered in pursuit of mandamus relief: whether there is no other adequate remedy available. Cash, 327 F.3d at 1258. As pled by the Plaintiff herself, another adequate remedy exists pursuant to the APA. (DE 9 at 4 ("Review is also warranted, and relief is sough under the [APA]")); Serrano v. U.S. Atty. Gen., 655 F.3d 1260, 1264 (11th Cir. 2011) (citing Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1268 (11th Cir. 2011) ("The availability of relief under the [APA] . . . forecloses a grant of a writ of mandamus.")). Consequently, the Court grants Defendants' Motion as to the Mandamus Act claim and dismisses that claim without prejudice.
Defendants' also move to dismiss Plaintiff's Mandamus Act claim pursuant to Rule 12(b)(6). (DE 14 at 15.) Because the Court finds that it is without jurisdiction to consider Plaintiff's Mandamus Act claim, the Court declines to consider Defendants' arguments pursuant to Rule 12(b)(6).
B. Plaintiff fails to adequately state a claim pursuant to the APA.
The next path for relief Plaintiff pursues is her contention that the Defendants' delay is unreasonable under the APA. (DE 9 at 15.) Plaintiff asserts that relief is warranted under APA §§ 701, 702, 706(1), 555(b). (Id. at 4.) "Although the APA independently does not confer subject-matter jurisdiction, 28 U.S.C. § 1331 confers jurisdiction on federal judges to review agency action under federal-question jurisdiction." Perez v. U.S. Citizenship & Immigration Servs., 774 F.3d 960 (11th Cir. 2014) (citing Califano v. Sanders, 430 U.S. 99, 105-07, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). The APA requires agencies to conclude matters "within a reasonable time," and authorizes federal courts to "compel agency action unlawfully withheld or unreasonably delayed." §§ 555(b), 706(1).
The Court notes that Plaintiff's Amended Complaint also likely qualifies as a disfavored "shotgun pleading" in this Circuit—and therefore may be dismissed on those grounds without prejudice as well—because it raises claims against multiple Defendants without specifying which of the Defendants are responsible for which acts or omissions. Barmapov v. Amuial, 986 F.3d 1321, 1324-25 (11th Cir. 2021) (quoting Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1320 (11th Cir. 2015) (identifying four general types of shotgun pleadings)). The first type of shotgun pleading is "a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint." Weiland, 792 F.3d at 1321. The second is a complaint that is "replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action." Id. at 1322. The third is a complaint that does not separate "each cause of action or claim for relief" into a different count. Id. at 1323. And the final type of shotgun pleading is a complaint that "assert[s] multiple claims against multiple defendants without specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against." Id.
As asserted by Plaintiff in her Response, courts often look to the six- (6-) factor balancing test set forth in Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (" TRAC "), to determine whether agency delay is reasonable or unreasonable. Defendants argue that the Eleventh Circuit has not expressly adopted the TRAC factors. (DE 16 at 9 n.9) (citing Santiago v. Mayorkas, 554 F. Supp. 3d 1340, 1353 (N.D. Ga. 2021).) However, many lower courts have found the TRAC factors to be applicable when confronted with unreasonable delay claims, including in the EB-5 context, as here. Santiago, 554 F. Supp. 3d at 1353. And although some courts conclude that the TRAC analysis is inappropriate at the motion to dismiss stage, other courts find a TRAC analysis is appropriate if a "record contains enough facts to evaluate the TRAC factors." Da Costa v. Immigration Inv'r Program Office, 643 F.Supp.3d 1, 12 (D.D.C. Nov. 16, 2022) (applying the TRAC factors in the EB-5 context); Bega v. Jaddou, 2022 WL 17403123, at *5 (D.D.C. Dec. 2, 2022) (same); Palakuru v. Renaud, 521 F. Supp. 3d 46, 53-54 (D.D.C. 2021) (same); Saharia v. U.S. Citizenship & Immigration Servs., 2022 WL 3141958, at *4 (S.D.N.Y. Aug. 5, 2022) (same, but concluding the TRAC factors weigh against granting a motion to dismiss); Nadhar v. Renaud, 2022 WL 684338, at *4 (D. Ariz. Mar. 8, 2022) (same); Canevaro v. Wolf, 540 F.Supp.3d 1235, 1243-44 (N.D. Ga. 2021) (applying the TRAC factors in the U-visa context); Barrios Garcia v. U.S. Dep't Homeland Sec., 507 F.Supp.3d 890, 896-97 (W.D. Mich. 2020) (same), reversed and remanded on other grounds Barrios Garcia v. U.S. Dep't Homeland Sec., 25 F.4th 430, 451-52 (6th Cir. 2022); but see Lammers v. U.S. Citizenship & Immigration Servs., 2021 WL 9408916, at *2-*3 (M.D. Fla. July 28, 2021) (declining to analyze the TRAC factors at the motion to dismiss stage due to "fact-intensive nature of unreasonably delay cases" in the EB-5 context). In this matter, Plaintiff—the non-movant—briefed the TRAC factors in her Response and accordingly, the Court considers the record appropriately developed to determine whether Plaintiff has adequately stated a claim for unreasonable delay. (DE 15 at 13-20.)
Plaintiff, the first Party to cite to and analyze the TRAC factors, filed a notice of supplemental authority after briefing on the instant Motion was completed. (Compare DE 20, with DE 22.) In the notice of supplemental authority, Plaintiff cites to the intervening case Velagapudi v. U.S. Citizenship & Immigration Servs., 2022 WL 4447409 (E.D. Mo. Sept. 23, 2022), in support of the Court denying the pending Motion. In Velagapudi, the district court denied a motion to dismiss somewhat similar to the instant motion, but did so on the basis that the TRAC factor analysis is a fact-intensive inquiry better fit for a later stage in the litigation. Id. at *6. Velagapudi is therefore at odds with an argument and analysis put forth by Plaintiff herself. Consequently, the Court considers the TRAC factors fully briefed and ripe for disposition at this time.
The TRAC factors are: (1) "the time agencies take to make decisions must be governed by a rule of reason"; (2) "where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason"; (3) "delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake"; (4) "the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority"; (5) "the court should also take into account the nature and extent of the interests prejudiced by delay"; and (6) "the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed." TRAC, 750 F.2d at 80 (quotations omitted).
Generally, the first and second TRAC factors are considered together and, in this case, the first and second factors weigh in Defendants' favor. See Bega, 2022 WL 17403123, at *5; Milligan v. Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020). Factors one and two "get at whether the agency's response time complies with an existing specified schedule and whether it is governed by an identifiable rationale." Ctr. Sci. Pub. Interest v. U.S. Food & Drug Admin., 74 F. Supp. 3d 295, 300 (D.D.C. 2014). Of the two factors, the first—whether a "rule of reason" guides the agency—is the most important. See In re Core Commc'ns Inc., 531 F.3d 849, 855 (D.C. Cir. 2008); see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 63-64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Plaintiff argues that USCIS' purported "rule of reason," which is known as the "visa availability" approach, "is not a uniform rule of reason because there is no identified processing logic for assignment of current I-526 forms." (DE 15 at 14.) The visa availability approach, as pled by Plaintiff, means that USCIS "give[s] priority to petitions where visas [from the petitioner's country of origin] are immediately available, or soon available." (DE 9 as 11.)
However, Plaintiff makes seemingly contradictory arguments in her Amended Complaint and her Response. In the former, she asserts that, under the visa availability approach, because she is from Venezuela, "where EB-5 visas are not backlogged and are readily available, [the visa availability] process . . . should have resulted in a faster adjudication of Plaintiff's I-526 petition." (DE 9 at 11.) But in her Response, Plaintiff asserts that the "visa availability approach is not a uniform rule of reason because there is no identified processing logic for assignment of current I-526 forms." (DE 15 at 14.) Plaintiff cannot have it both ways: either the visa availability approach is a rule of reason dictating that Plaintiff's I-526 petition should be adjudicated more quickly than others, or it is not such a rule. Further, courts consistently hold that the visa availability approach is a "rule of reason" under the first TRAC factor. Bega, 2022 WL 17403123, at *6 (citing Mokkapati v. Mayorkas, 2022 WL 2817840, at *5 (D.D.C. July 19, 2022) (quoting Skalka v. Kelly, 246 F. Supp. 3d 147, 153-54 (D.D.C. 2017)); then citing Nohria v. Renaud, 2021 WL 950511, at *6 n.5 (D.D.C. March 14, 2021) ("The agency's process is clearly governed by a solid rule of reason—the visa availability approach—meeting the first factor."); and then citing Telles v. Mayorkas, 2022 WL 2713349, at *3 (D.D.C. July 13, 2022) (holding that USCIS's processing of I-526 petitions is governed by an "identifiable rationale") (internal quotation omitted)).
The second factor, whether "Congress has provided a timetable or other indication of speed," also weighs in Defendants' favor. As discussed above, there is no congressionally, let alone administratively, mandated timetable in which I-526 petitions must be adjudicated. All that is statutorily stated is that "[i]t is the sense of Congress" that an I-526 petition "should be completed not later than 180 days after the initial filing . . . ." § 1571(b) (emphasis added). But the "180 day" language does not obligate Defendants to adjudicate an I-526 petition, it merely expresses a legislative "sense." Bian, 605 F.3d at 255. Thus, the second factor also tilts the TRAC scale in Defendants' favor.
Similarly, factors three through five in the aggregate indicate there has been no unreasonable delay. The third, fourth, and fifth TRAC factors consider whether "human health and welfare are at stake," any effects "of expediting delayed action on agency activities of a higher or competing priority," and the "nature and extent of the interests prejudiced by delay." TRAC, 750 F.2d at 80. As to these factors, Ms. Osechas Lopez pleads in the Amended Complaint that she "faces harms arising from the uncertainty of her immigration status, which is exacerbated and prolonged by the ongoing delays in adjudicating her I-526 petition" in addition to the economic risk to her pending investment. (DE 9 at 9-10.) She also asserts that Defendants' lack-of-action is "depriving her of the right to a decision on her status and the peace of mind to which she is entitled." (Id. at 14-15.) In her Response, Plaintiff argues that "[w]hile the basis of Plaintiffs' EB-5 visa applications is [sic] economic, any visa necessarily touches on the health, welfare, and safety of those seeking to plan their lives in the United States." (DE 15 at 19.)
Plaintiff asserts additional harms in her Response: "the debilitating psychological and emotional trauma of not knowing whether she will ultimately be allowed to stay permanently in the United States" and anxiety. (DE 15 at 2, 20.) Defendants are correct that a plaintiff may not bolster a pleading by adding facts to a response to a motion to dismiss. (DE 16 at 2-3 (citing Brandywine Commnc's Techs., LLC v. T-Mobile USA, Inc., 904 F. Supp. 2d 1260, 1272 n.13 (M.D. Fla. 2012)).) Even if the Court considers such additionally alleged harms, on balance the TRAC analysis favors Defendants.
Taken in the light most favorable to Plaintiff, the third TRAC factor is neutral: while the balance of harm alleged is economic, Ms. Osechas Lopez's "peace of mind" has been disquieted throughout this process. (DE 9 at 13-14.) "Peace of mind" has been considered by courts undertaking a TRAC analysis to weigh in a plaintiff's favor in other immigration contexts, for example when an applicant for asylum had an application pending for eight (8) years. Geneme v. Holder, 935 F. Supp. 2d 184, 193-94 (D.D.C. 2013); but see Rambang v. Mayorkas, 2012 WL 2449927, at *5-*7 (D. Minn. June 27, 2012) (holding that an allegation of harm to "peace of mind" was sufficiently alleged harm at the motion to dismiss stage, but insufficient in a TRAC balancing analysis on a motion for summary judgment). However, courts have also held that uncertainty and the inability to move forward with the normal course of life are inherent risks of engaging in the immigration process, and weigh against finding that the third and even fifth TRAC factors favor a plaintiff. Bega, 2022 WL 17403123, at *7; Telles, 2022 WL 2713349, at *4; Desai v. U.S. Citizenship & Immigration Servs., 2021 WL 1110737, at *7 (D.D.C. Mar. 22, 2021); Fangfang Xu v. Cissna, 434 F. Supp. 3d 43, 54 (S.D.N.Y. 2020); Palakuru, 521 F. Supp. 3d at 51 (stating that while a plaintiff awaiting an immigration decision may assert that their life is "on hold . . . so too [may] many others facing similar circumstances."). In considering the fourth and fifth TRAC factors, the Court notes that what Ms. Osechas Lopez asks of the Court is to heavily weigh her individual interest against the interests of the Government in the established rule of reason as to I-526 petitions and those of similarly situated petitioners who filed their I-526 petitions ahead of her. The Court acknowledges that Ms. Osechas Lopez has been awaiting adjudication of her I-526 petition, and that delay and uncertainty may certainly impact her health and livelihood, but "uncertainties are inherent in the immigration process." Bega, 2022 WL 17403123, at *7.
The last TRAC factor, that a "court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is 'unreasonably delayed' " leans slightly towards Defendants' favor. Although Plaintiff does assert in the Amended Complaint that she has a right to adjudication in a manner which is "not arbitrary and capricious;" that USCIS has adjudicated a decreasing annual volume of I-526 petitions since at least 2015; and that "[m]ysteriously, despite the substantial volume of petitions that can be processed . . . Plaintiff's case has not been adjudicated in over three years;" Plaintiff also concedes that certain other factors may impact processing times. For example, Plaintiff asserts in the Amended Complaint that the first I-526 petition approved from the commercial enterprise in which she invested in wasn't approved until December 22, 2020, approximately a year-and-a-half after which she submitted the instant petition. (DE 9 at 9.) In addition, Plaintiff acknowledges that "EB-5 adjudications were paused between June 30, 2021 and March 14, 2022 . . . ." (Id. at 12.) Thus, as acknowledged by Plaintiff, the first related I-526 petition wasn't approved until December 22, 2020, and then approximately six (6) months later all EB-5 adjudications "paused" until March 14, 2022. (Id. at 9, 12.) While the Court does not "need to find any impropriety lurking" behind the alleged delay, the record as pled by Plaintiff does not indicate that the sixth TRAC factor weighs in her favor. In sum, under the applicable TRAC factors, the Court does not find that Plaintiff has adequately stated a claim of unreasonable delay and therefore grants Defendants' Motion.
As discussed above, it is Plaintiff—not Defendants—who briefed a TRAC analysis. (DE 15 at 13-20.) Defendants assert that Plaintiff has failed to state a claim for relief under the APA because, "even if the facts in the Complaint are true, Plaintiff has not asserted a plausible claim because the alleged delay is not an unreasonable delay that is actionable under the APA." (DE 14 at 16.) Defendants argue, as set forth above, that there is neither a congressionally nor administratively mandated timeline for approval of I-526 petitions. (Id.) Defendants also point to the decisions of other courts in granting motions to dismiss where the delays in adjudication of an I-526 petition were greater than alleged in this matter. See Mokkapati, 2022 WL 2817840, at *6 (thirty-two months); Telles, 2022 WL 2713349, at *4 (forty-two months). Defendants also assert that Plaintiff failed to plead sufficient prejudice to warrant the relief requested pursuant to § 706. (DE 14 at 19.) Accordingly, Defendants assert that Plaintiff has failed to state a claim. In Response, Plaintiff undertakes the aforementioned TRAC analysis (DE 15 at 13-20). Plaintiff also argues that, "[u]nder Defendants' logic, they do not acknowledge any period of delay where the Court would have jurisdiction to entertain a Mandamus Complaint." (DE 15 at 11.) The Court acknowledges and is sensitive to the uncertainty Ms. Osechas Lopez and many others experience when engaging with the immigration process. However, on this record, Ms. Osechas Lopez has failed to sufficiently state a claim of unreasonable delay and the Court must grant Defendants' Motion and dismiss the claim pursuant to the APA.
IV. CONCLUSION
For the reasons set forth above, it is ORDERED AND ADJUDGED that:
1. Defendants' Motion to Dismiss (DE 14) is GRANTED;
2. Plaintiff's Amended Complaint (DE 9) is DISMISSED WITHOUT PREJUDICE;
3. All hearings and deadlines are CANCELED; and
4. The Clerk is directed to CLOSE the case.
DONE AND ORDERED in Chambers in Miami, Florida, this 9th day of January, 2023.