The U.S. Department of Homeland Security told a Washington, D.C., federal judge Friday that American Logistics International LLC lacks standing to challenge the agency’s decision to deny EB-5 investor visas to more than a dozen U.S. resident aliens, saying no final decisions have yet been made.
An attorney for the government said that following its July 30 motion to dismiss, the U.S. Citizenship and Immigration Services’ Immigrant Investor Program Office issued requests for evidence — which are currently pending — to three of the investor plaintiffs and that the court should therefore dismiss their Administrative Procedure Act claims because its authority is limited to cases challenging final agency decisions.
The government also argued that the three men’s claims are not ripe, that they have not exhausted administrative remedies where there is no final agency action, and that their claims for mandamus relief are moot since USCIS has taken administrative action.
DHS asked the court to dismiss the corporate plaintiffs — referred to in prior briefs as American Logistics entities — for lack of standing and to toss all claims related to the investor plaintiffs’ I-829 petitions as well as all claims in their entirety.
American Logistics sued DHS in May, claiming the agency violated federal law and USCIS policy when it denied form I-526 petitions by immigrant investors or delayed action on form I-526 or I-829 petitions.
“Because plaintiff investors still enjoy the opportunity to provide evidence in support of their I-829 petitions, no legal relationship has been fixed as the agency has not made a determination or issued any order concerning these applications,” the government said.
Jason Wright, an attorney for plaintiffs, told Law360 Tuesday that the case “will certainly proceed” past DHS' motion to dismiss.
“The fourteen investors' $500,000 in capital contributions were fully at risk and committed under Section 203(b)(5) of the Immigration and Nationality Act for the purpose of job growth here in the U.S.,” Wright said. “Moreover, this lawsuit will uncover the pretextual nature of the agency's denials. DHS operates a mysterious, extra-regulatory ‘national security’ program that has operated wrongfully beyond the reach of due process and judicial review. The investors have followed the letter and spirit of the law, and welcome the federal court's review and intervention."
The EB-5 visa program provides green cards to foreign citizens who invest more than $500,000 in "job creating" industries within the U.S.
According to its lawsuit, American Logistics pools this amount from individual investors to create an equity investment into new commercial enterprises, which it then uses to acquire and upgrade certain assets. The suit named a number of new commercial enterprises and affiliated corporate entities, as well as 15 individual investors from Iran and Vietnam as plaintiffs.
The plaintiffs' attorneys said previously the 15 individuals represent a sample of the total number of investors involved. The complaint seeks declaratory and injunctive relief under the APA.
American Logistics contends the underlying motivation for the petition denials was likely because of an unsubstantiated claim made by Senate Judiciary Committee Chairman Charles E. Grassley, R-Iowa, in 2013, and a “sensational” ABC News “Nightline” segment that aired in February suggesting that the regional center has concerning ties to Iran.
The plaintiffs are represented by Mark S. Zaid, Jason D. Wright and Bradley P. Moss of Mark S. Zaid PC.
The government is represented by Yamileth G. Davila of the U.S. Department of Justice.