80 F.4th 330
D.C. Cir.2023Background
- EB-5 visas permit immigrants to obtain employment‑based visas by investing in U.S. job‑creating enterprises; the first step is filing Form I‑526 with USCIS.
- USCIS in January 2020 adopted an "availability‑screened queue": screen petitions for visa availability under per‑country caps, then process those with (or soon‑to‑be) available visas in FIFO order.
- Processing times for I‑526 petitions rose sharply beginning about FY2020; USCIS also paused Regional‑Center adjudications during a 9‑month lapse in congressional authorization.
- Two consolidated suits (Da Costa and Bega) challenged alleged unreasonable delay under the APA; plaintiffs filed I‑526s in 2019 and alleged harms including safety/health (Da Costa, South Africa) and financial uncertainty (Bega).
- District courts dismissed both complaints under Rule 12(b)(6) after applying the six TRAC factors; on appeal the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs stated an APA claim for unreasonable delay of I‑526 adjudication | Long multi‑year wait (years) is per se unreasonable; asserted health and financial harms | USCIS has nondiscretionary duty to adjudicate but exercised a reasonable prioritization; delays reflect resource constraints and statutory caps | Dismissal affirmed — plaintiffs did not plausibly show unreasonable delay |
| Whether USCIS follows a "rule of reason" (TRAC factor 1) | USCIS publicly promises availability‑screening but in practice misapplies it, issues "blanket expedites," and sometimes processes out of order | USCIS’s availability‑screened queue reasonably harmonizes filing‑order with per‑country caps and is the agency’s stated processing logic | Court finds USCIS follows a rule of reason; plaintiffs’ allegations of systematic departure are conclusory |
| Whether ordering relief would harm agency priorities by causing line‑jumping (TRAC factor 4) | Court relief would not prejudice others because USCIS can process many petitions in parallel | Granting individual expedited relief would necessarily move plaintiffs ahead of longer‑pending petitioners and disrupt the queue | Factor strongly favors government; individual mandamus relief would cause disfavored line‑jumping |
| Whether other TRAC factors (statutory benchmarks, harm, impropriety) support relief | Point to congressional aspirational 180‑day benchmark and allege health/welfare and financial harms; cite past incidents of preferential expedites | 180‑day provision is aspirational; harms are generalized (Durban) or economic; allegations of impropriety are isolated or conclusory | These factors do not tip the balance; harms insufficiently tied to delay and impropriety not plausibly alleged |
Key Cases Cited
- Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (announces six‑factor test for evaluating unreasonable agency delay)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (U.S. 2004) (agency must take discrete action it is required to take to state APA withholding claim)
- In re Barr Laboratories, 930 F.2d 72 (D.C. Cir. 1991) (relief that puts one applicant ahead of queue merely shifts delay to others)
- Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (consider complexity and resources when assessing delay under TRAC)
- Meina Xie v. Kerry, 780 F.3d 405 (D.C. Cir. 2015) (discusses INA priority rule and reviewability of visa processing)
- Barrios Garcia v. DHS, 25 F.4th 430 (6th Cir. 2022) (health/welfare allegations can in some cases support unreasonable‑delay claims)