544 F.Supp.3d 1
D.D.C.2021Background
- Thirty-eight Chinese nationals invested through the EB-5 program; USCIS approved each plaintiff’s Form I-526 and their cases became documentarily complete between Dec. 2019 and May 2021; most awaited consular interviews in Guangzhou.
- In early 2020 Presidential Proclamation 9984 and State Department suspension of routine visa services (due to COVID-19) halted much consular processing; plaintiffs allege EB-5 visas were not issued by U.S. consulates in China for many months.
- Plaintiffs sued (Mar. 9, 2021) alleging (1) the State Department unlawfully applied Proclamation 9984 (APA arbitrary and capricious) and (2) unreasonable delay in adjudicating visas under the APA; they sought a preliminary injunction to resume processing.
- On Apr. 8, 2021 the State Department applied the national-interest exception to immigrant visas and adopted an immigrant-visa prioritization scheme placing EB-5 in the lowest tier but instructing posts to process some tier‑3 and tier‑4 cases monthly.
- Defendants moved to dismiss (or for summary judgment). The Court held the proclamation challenge moot, dismissed the unreasonable-delay claim for failure to state a claim under TRAC analysis, and denied the preliminary injunction; several plaintiffs received visas during the litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether challenge to application of Proclamation 9984 is justiciable and the agency action arbitrary and capricious | Proclamation was unlawfully applied to suspend EB‑5 visa processing; court relief should require resumption | State Dept. granted national‑interest exceptions to immigrant visas and no longer applies the Proclamation to suspend plaintiffs’ processing | Moot: Secretary’s April 8 determination removes the live controversy; claim dismissed for lack of subject‑matter jurisdiction |
| Whether defendants unreasonably delayed visa adjudication under the APA (5 U.S.C. § 555) | Delay in scheduling interviews and adjudicating visas is unreasonable and harms plaintiffs (family separation, education, investment risks) | Pandemic‑related operational constraints and an articulable prioritization scheme justify delay; compelling relief would disrupt agency queue and competing priorities | Failure to state a claim: TRAC factors (especially agency resource/prioritization concerns) weigh for defendants; injunction denied |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (U.S. 2008) (preliminary injunction standard: likelihood of success, irreparable harm, balance of equities, public interest)
- Nken v. Holder, 556 U.S. 418 (U.S. 2009) (stay/relief factors and government interests)
- Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (U.S. 1994) (federal courts are courts of limited jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (plaintiff bears burden to establish jurisdiction/standing)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading must state plausible claims)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility pleading standard)
- Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (TRAC factors for unreasonable delay)
- Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (agency delay analysis; consider complexity and resources)
- In re Barr Labs, Inc., 930 F.2d 72 (D.C. Cir. 1991) (deference to agency resource allocation)
- Preiser v. Newkirk, 422 U.S. 395 (U.S. 1975) (courts may not issue advisory opinions; case must present live controversy)
- County of Los Angeles v. Davis, 440 U.S. 625 (U.S. 1979) (voluntary cessation moots suit only if recurrence is unlikely and effects are eradicated)