1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

U.S. IMMIGRATION FUND

- NY LLC, et al. , Plaintiff s

v. A LEJANDRO MAYORKAS, in his official capacity as Secretary of Homeland Secur ity, et al. , Defendant s
. Civil Action No. 21

- 0 358 (CKK)

MEMORANDUM OPINION ( March 10, 2022) This Adminis trative Procedure Act ( “ APA ” ) case centers on Defendant U.S. Citizenship and Immigration Services ’ ( “ USCIS ” ) 2020 update to USCIS ’ 2013 “ Policy Manual ” that promulgated an additional adjudication requirement for EB

- 5 visa applications ( “ 2020 Update ” )

. Plaintiffs, corporate enti ties that operate as “ economic regional centers ” ( “ Regional Center ” ) or

“ New Commer cial Ente rprises ” ( “ NCE ” ) into which EB

- 5 applica nts may invest, argue that the
Court should s et aside this 2020 U pdate as arb itrary or capricious because , in Plaintiffs ’ view, it is a legislative rule that did not go through notice

- and

- comment rulemaking. Defendant s maintain that t he 2 020 U pdate was a mere interpretive rule not subject to notice

- and

- comment rulemaking. Additionall y , Defendants argue that the Cour t lacks subjec t matter jurisdiction on ripeness and mootness grounds. Because USCIS continues to ap ply the 2020 U pdate to at least one stage of the EB

- 5 process , and upon consideration of the pleadings, 1 the relevant legal

1 This Memorandum Opinion focuses on the following documents:
• Plaintiffs ’ Complaint , ECF No. 1 (“ Compl. ”) ;
• Defendants ’ Memorandum of Points and Authorities in Support of Def endants ’ Motion to Dismiss, ECF No. 17

- 1 ( “ MTD ” );2 authorities, and the entire record, the Court shall DENY Defendants ’ [22] Motion to Dismiss
Bas ed on Changed Circumstances

. As Plaintiffs ’ claims are not yet ripe, however, the Court shall GRANT Defendants ’ [ 17] Motion to Dismiss.
I. BACKGROUND The EB

- 5 visa program was created as part of the Immigration Act of 1990 “ to incentivi ze employm ent creation in the United States. ” Dep ’ t of Hom eland Sec., EB

- 5 Immigrant Investor Regional Center P rogram , 82 F ed. Reg. 3211, 3212 (July 24, 2019). Under the Immigration Act of 1990, to receive an E B

- 5 vi sa, a n on citizen (1) must make or have made

a minimum in vestment in a N ew C ommercial E nterprise ( “ NCE ” ) that sati sfie s certain statutory and regulatory conditions and (2) establish that the NCE directly created full

- t ime employment for no fewer tha n ten employees lawfull y working in the Unite d States. Id. The EB

- 5 program is unique among vi sa programs in that it provides a direct path to lawful per manent residency ( “ L P R ” ) for foreign inves tor s who invest $1. 8 million ( or $900,00 0 in a high unemplo yment or

ru r al area) in a NCE. Ord er at 2, Civitas Mass. Regional Ctr. v. Mayorkas , 21

- cv - 10344

- LTS ( D. Mass. Jan. 1 9, 2022) ( slip op.) ( “ Civi tas ” )

. In its first two years of the program ’ s existence, an EB

- 5 applicant was required to show investment into a particular NCE and that the investor would be engage d in the management of the NC E. See USCIS, Policy Manual , Part G, Ch. 4 a vailable at https://www.uscis.gov/policy

-

• Defendants ’ Memorandum of Points and Authori ties in Support of Defendants ’ Motion to Dismiss Based on Ch anged C ircumstance s, ECF No. 22

- 1 ( “ Supp. MTD ” );

• Plaintiffs ’ Response in Opposition to Def endan ts ’ Motions to Dismiss , ECF No. 23 ( “ Opp. ” ); and

• Defendants ’ Combined Reply to Plaintif fs ’ Single Brief in Opposition to Defend ants ’ Two Separate Motion s to Dismiss , ECF No. 2 4 ( “ Repl. ” ). In an exercise of its discretion, the Court finds that hold ing oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).3 manual/volume

- 6

- part

- g - chapter

- 4 (last accessed Mar. 7, 2022 9:44 AM) ( “Policy Manual ”) ; 8 U.S.C. § § 1153 (b )(5)(A)

- (D)

. In 1992, however, Congress established a Reg ional Center Pilot Program ( “ P rogram ” ) , permitting EB

- 5 applicants to invest funds in registered “ regional center s ” without having to show management of the NCE or direct creation of at leas t ten jobs. Rather, the re gional centers , created “ for the pro motion of econom ic growth , includin g increased export sales, improved regional p roductivity , job creation , or increased domestic capi tal investment ” in particular geogra phic areas , could deploy investor capital as they saw fit, and investors could qualify for an EB

- 5 visa so long as the regional center created ten jobs as a result of the investor ’ s deployed c ap ital

. See Departments of State , Justice, and Commerce, the Judiciary and Related Agen cie s A ppropriations Act of 1992, Pub. L. No. 102

- 395, § 610(a ) (Oct. 6, 1992) (codified at 8 U. S. C. § 1153) ; Bro m fman v. USCIS , 202 1 WL 5014436 at *1 (D.D.C. O ct. 28,
2 021) (BAH) (citing 8 C.F.R. § 204.6(m)). To qualify for an EB

- 5 visa, a “ regional cent er ” investor must firs t file a For m I

- 526, Immigrant Petition by Alien Entrep reneur , de monstrating that the requisite level of capital has been deployed through the Regional Center and that the investment will create at least ten direc t or indirect full

- ti me jobs. Policy Manual, Part G, Ch. 4. Upon approval of the I

- 526, the investor becomes eligible to receive an EB

- 5 vi sa. See id . After favorable adjudication, and if the i nvestor wan ts to pursue LPR status, the investor must file a For m I

- 495, Applicat ion to Register Permanent Residen ce or Adjust Status, if within the United S tates, or Form DS

- 260, Application f or Immigrant Visa and Alien Registration, if outside of the United States. USCIS , EB

- 5 Investors available at https://www.uscis.gov/working

- in

- the

- united

- states/permanent

workers/employment

- based

- immigration

- fifth

- preference

- eb

- 5/eb

- 5

- investors

. I f approved, the investor obtains conditional LPR status for two years. Policy Manual, Part G, Ch. 4

. Finally, 904 days before the exp iration of the conditional status, the inv estor must file a Form I

- 829 , Pet ition by Investor to Remove Conditions on Perma nent Resident Status. At all stages, the investor must show that they have ke pt their investment “ at

- risk , ” i.e., deployed in some NCE. Policy Manual, Part G, Ch . 2.
A substantial amount of time may pass, however, between the submission of any Form

an d its approval. The complaint alleges that more than a decade may elapse between the submission of an I

- 526 petition and its approval. Compl. at ¶ 125. B ecause there may be another de lay between the submission of a n I

- 8 29 and the provisio n of LPR status , Plaint iffs assert that a EB

- 5 investor could “ have to place his or her funds at risk for as long as 20 years. ”
I

d. at ¶ 137 (emphasis omitted). In part to addres s these concerns, USCIS adopted a policy of

“ re deployment , ” permitting an applicant ’ s c ap it al invested in one New Comme rcial Enterprise to be “ re de ployed ” to anothe r New Commercial Enterprise to maintain eligibility

. Civitas at 4. As Plain tiffs note, “ re deployment ” is found ne ither in the statute

–– now defunct

–– nor applicable regulations

. Compl. at ¶ 140. Plaintiffs do not challenge the red eployment policy, however , but th e 2020 Update now requiring that “ [re]deployment must occur within the regional center ’ s geographic area

. ” Compl. at ¶ 87.
S ince its inception, the Program ha d been repe atedly reauthorized by statute

. Bro mfman , 2021 WL 5014436 a t *2. The Program expired on June 30, 2021 , id. , and has not, to date, bee n reauthorized. Defenda nt s argue that the program ’ s lapse moots the case. In the alternative, Defendant s argue t hat Plaintiffs (1) have yet to suffer a constitutionally cognizable injury and (2) do not state a cla im under the APA.5 II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Juris diction
F ederal courts are “ c ourts of limited jurisd iction” and can adjudicate only those cases entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994)

. As such, a court must dismiss a case pursuant to Federal Rule 12(b)(1) when it l acks subject matter jurisdiction. Bagherian v. Pompeo , 442 F. Supp. 3d 87, 91 (D.D.C. 2020)

. The Court begins with the presumption that it does not have subject matter jurisdiction over a case. Kokkonen , 511 U.S. at 377

. On a Rule 12(b)(1) motion , the plainti ff “bears the burden of establishing jurisdiction by a preponderance of the evidence.” Bagherian , 442 F. Supp. 3d at 91

– 92 (D.D.C. 2020) ; see also Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992)

. In determining w hether there is jurisdicti on, the court may “‘ consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts. ’ ” Coal. For Underground Expansi on v. Mineta , 333 F.3d 193 , 198 ( D.C. Cir. 2003) (citations omitted) (quoting Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir.
1992 ). Courts must accept as true all factual allegations in the complaint and construe the complaint liberally, gr anting the plaintiff the b enefit of all inferences that can be drawn from the facts alleged. See Settles v. U.S. Parole Comm’n , 429 F.3d 1098, 1106 (D.C. Cir. 2005) ; Koutny

v. Martin , 530 F. Supp. 2d 84, 87 (D.D.C. 2007)

. However, “the factual allegations in the complaint “will be ar clos er scrutiny in resolving

a 12 ( b )( 1 ) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13

– 14 (D.D.C. 2001 ). A cour t need not accept as true “‘ a legal c onclusi on couched as a factual allegation ’ ” or an inference6 “‘ unsupported by the facts set out in the complaint. ’ ” Trudeau v. Fed. Trade Comm’n , 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation marks omitted) (qu oting Papasan v. Allain , 478
U.S. 265 , 286 ( 1986) ).
B. Motion to Dismiss for F ailure to State a Claim Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b )(6). The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iq bal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 557). Rather, a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Twombly , 550 U.S. at 570. “A claim has facial plaus ibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal , 556 U.S. at 678. In evaluating a Rule 12(b)(6) motion to dismiss for failure to stat e a claim, a court must construe the complaint in the light most favorable to the plaintiff and accept as true all reasonable factual inferences drawn from well

- pleaded factual allegations . See In re United Mine Workers of Am. Employee Benefit Plans Litig

. , 854 F. Supp. 914, 915 (D.D.C. 1994).
III. D ISCUSSION
A. Mootness Article III of the U.S. Constitution limits judicial power to actual, ongoing cases or7 controversies

. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 351 (2006). When there is no longer a live controversy between the parties to which the court can grant relief, the matter becomes moot and , thereby, nonjusticiable. See McBryde v. Comm. to Review , 264 F.3d 52, 55 (D.C. Cir. 2001)

. The m ootness doctrine dictates that a controversy must remain live throughout the entire course of litigatio n for it to remain justiciable

. See Arizonans for Official English v. Arizona , 520 U.S. 43, 67 (1997)

. Defendant s argue that the case is moot because “ there is no longer st atutory authority to issue Regional Center EB

- 5 visas [ and] the Court cannot r edress P laintiff ’ s [sic] alleged injury. ” Supp. MTD at 5. Defendant s mischaracterize the allege d injury, however, and the grav amen of the complaint. The issue here is not whether USCIS can issue new EB

- 5 visas, i.e ., adjudica te
Form I

- 526 petitions, but rather whether prior compliance with the 2020 U pdate affects the ongoing adjudication of Form I

- 829 pe titions. See Civitas at 6. USCIS continues to adjudicate the latter , USCIS, EB

- 5 Investor Program , https://www.uscis.gov/working

- in

- the

- united

states/permanent

- workers/eb

- 5

- immigrant

- investor

- program , and Plaintiffs allege that noncompliance with the 2020 U pdate ma y cause the den ial of a swath of Form I

- 829 petitions , pecuniary losses, and Plaintiffs ’ own termination from the Program , Compl. at ¶ 160. Because there remains a live contro versy related to the 2020 U pdate , the Court concludes that this case is
not moot.
B. R ipeness To satisfy the Article III case or controversy requirement, a case must be “ripe” and cannot rely on “contingent future events t hat may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998)

. The court lacks subject matter jurisdiction if a plaintiff's claims are not yet ripe for review. Am. Petrol

. Inst. v. EPA , 683 F.3d8 382, 286 (D.C. Cir. 2012 ). “ Ripe ness is a jus ticiability doctrine designed ‘ to prevent the courts , through avoidance of premature adjudication , from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interfe rence until an administrative decision has been formalized and its effects felt in a concrete way by the parties. ’ ” Nat ’ l Park Hosp itality Ass ’ n v. Dep ’ t of Interior , 538 U .S. 803, 807

- 08 (2003) (quoting Abbott Labs v. Gardner , 387 U.S. 1 36, 148

- 49 (1967)). Whether an action is ripe turns on “ the fitness of the issue s for judicial decision and the hardship to the parties of withholding judicial re view. ” Abbott Labs , 387 U.S. at 349 (new l abeling rule posed substantial hardship to pharmaceutical company where company had previously printed up a store of labels complying with prior rule and new rule required new labels or risk of enforcement proceeding)

. This inquiry “ seeks to distinguish between a tentative agency position from the situation where

‘ the agency views its deliberative process as sufficiently final to demand compliance with the announced position. ’ ” Her Majesty th e Queen in Right of Ontario v. EPA , 912 F.2d 1525, 1531 (D.C. Cir. 1990) (quoting Ciba

- Geigy Corp . v. EPA , 801 F.2d 430, 436 (D.C. Cir. 1986)).
1. Fitness Even if the key issue in a case is “ ‘ a purely legal one , ’ it is not ‘ fit ’ for judicial review if

‘ further factual development would ‘ significa nt ly advance [the Court ’ s [ ability to deal with the legal issues presented. ’ ” Friends of An imals v. U.S. Bureau of L and Mgmt. , 51 4 F. Supp. 3d 290, 301 (D.D. C. 20 21) (PLF) (brackets original ) (quoting Nat ’ l Park Hospitality Ass ’ n , 538 U.S. at
812. This is such a case. To determine the ultimate merits of the case, the Court would have to a sses s whether the

“ agency action [] sets forth legally binding requirements for a private party to obtain a permit or license. ” Id. at 251. The Court would consider three factors to answer this question: (1) “ the9 actual legal effect (or lack thereof) of the agency action in question, ” (2) “ the agency ’ s

c haracterization of the guidance, ” and ( 3) “ whether the agency h as applied the guidance as if it were binding on regulated parties. ” Id. As to the fi rst factor, the text itself i s fairly ambiguous. Plaintiff points to the mandatory nature of the Policy Manual in which the 2020 Update appears . It reads : The USCIS Policy Manual is the agency ’ s centralized online rep ository of USCIS ’ immigration policies. . . . The Policy Manual contains the official policies of USCIS and assists immigration officers in rendering de cisions. The Policy Manual is to be followed by all USCIS officers in the performance of their duties but it does not remove their di scretion in making a djudicatory decisions. USCIS, Policy Manual available at https://www.uscis.gov/policy

- manual

. Plaintiff s focus on the fact that the Policy Manua l “ is to be follow ed by all USCIS in the performance of their duties. ” Defe ndant s , on the other hand, seem to argue that the 2020 Update is nonbinding because it does
not “ r emove the[] discreti on ” of the immigration officers who adjudi cate I

- 8 2 9 petitions. It cannot be said that the Policy Manual, and the key provision here, only “ presents [USCIS ’ ] position on what the law is ” because it sets a condition for t he approval of an I

- 8 2 9 petition. See Valero Energy Co rp. v. EPA , 927 F.3d 532, 563 (D.C. Cir. 2019) (EPA document that “ expressly disclaims any legal effect ” is not a legislative rule). At the same time, if the Policy Man ual in its entirety i s discretio nary, it must not create rules that apply in all cases. Without a lengthier record explaining the context and meaning of this term in the Policy Manual and its relationship to the 2020 Update itself, the C ourt at present stage cannot definitively answer this first factor. So too with the second factor, “ the agency ’ s characterization of the guidance. ” Although the Policy Manual h as a general statement characterizing the extent to which it is binding, the record does not identify any i nstance where USCIS characterized the 2020 Update itself. Similarly, as Defendant s emphasi ze , USCIS has yet to apply the 2020 Update to any party in an10 a djudication or other agency action. Because further factual development is necessary to answer this legal question, this case is not yet fit for judicia l resolution.
2. Hardship As for hardship, where a proposed agency policy is not yet clear and where “ the agency [has not had] a chance to apply its regulations in a concrete factual situation , ” a n APA case is likel y not yet ripe. Truckers United for Safety v. Fed. Highway Admin. , 139 F.3d 934, 938 (D.C. Cir. 1998)

. This is so because “ the substanc e of the regulatory guidance, ” even if o st ensibly final, may never be applied at all. See i d. Here, Plaintiffs have not identified a si ngle case of the 2020 Update ever being applied to any investor applicant now more than a year - and

- a - half after its adoption. Moreover, if USCIS officers have discretion in applying certain Policy Manual requirements, it is entirely possible that a USCIS officer will never apply the 2020 Update on geographic redeployment

. Plaintiffs ’ fear that they will be “ possibl[y] terminat[ed] from the [P]rogr am as a result of

non - compliance with ” the 2020 Update also rings hollow. Compl. at ¶ 56

. As an i n itial matter, the Program lacks statutory authorization and there is, for standing purpose s , insuffi cient indication that the Program will be reauthorized. See Brom fman , 202 1 WL 5014436 at * 3. Even if the Progra m were reauthorized, it is not at all clear t o the Court that the regulatory regime permits US CIS to terminate a regional ce nter purely on the ba sis of red eployment to another geographic region. The applicable regulation states that USCIS “will issue a notice of intent to terminate ” a regional center if “[a] regional center fails to submit ” the required paperwork and pay associated fees or if “USCIS determines that the regional center no longer serves the purpose of promoting economic growth. ” 8 C.F.R. § 204.6 (m)(6). The provision is silent on geogr aphic delineation . Finally, fears of investor complaints or lawsuits associated with a risk y investment11 strategy do n ot automatically conjure standing, particularly where, as discussed in Part I a bove , Plaintiffs are tied to a geographic area by sta tute. See State Farm Mut. Auto. Ins. V

. Do le , 802 F.3d 474, 480 (D.C. Cir. 1986) ( “ a party ’ s allegati on of hardship will be found wanting if there
are too ma ny ‘ ifs ’ in the asserted causal chain linking the agency ’ s action to the alleged hardshi p ” ). Accordingly, the Court concludes that Plaintiffs ’ fears of adverse ag ency action predicated on the 2020 Update are too remote to pro vide Article III jurisdiction

. Lacking jurisdiction over the case, the Court need not continue to Def endants ’ final argument , that Plaintiffs ’ claims fail as a matter of law.
IV. CONCLUSION For the foregoing reasons, the Court shall D EN Y Defendants ’ [22] Motion to Dismiss Based on Changed Circumstances , GRANT Defendants ’ [17] Motion to Dismiss, and D ISMISS Plaintiffs ’ [1] Complaint. An appropriate Order accompanies this Memorandum Opinion

.

Da ted: March 10, 2022 /s/ COLLEEN K OLLAR

- K OTELLY United States District Judge