Sychev v. Cuccinelli
Civil Action No. 2020-3484
| D.D.C. | Mar 30, 2022Background:
- Sychev (Russian citizen) filed an EB-5 Form I-526 on March 24, 2016; USCIS approved it on November 16, 2018 and referred the petition to the State Department’s National Visa Center (NVC).
- On May 7, 2019 Sychev had a consular interview at the U.S. Embassy in Moscow; on June 17, 2019 the Embassy returned his file to USCIS alleging inaccuracies.
- USCIS found no defect, reconfirmed the I-526, and reconveyed it to NVC on March 26, 2021; in April 2021 the Embassy moved Russian visa processing to Warsaw, complicating travel for Russian nationals.
- Sychev alleges unreasonable delay in adjudication and seeks mandamus and APA relief to compel faster processing of his I-526 and visa issuance.
- Defendants moved to dismiss; the Court concluded DHS had conveyed the application to NVC and dismissed the suit as to DHS defendants as moot.
- Because the State Department acted (via a consular referral) the Court held Defendants’ motion in abeyance and ordered supplemental briefing on whether consular nonreviewability and TRAC factors permit judicial relief for the alleged delay.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness re: DHS defendants | Seeks court order compelling DHS to act more quickly on I-526 processing | DHS has already transmitted the petition to NVC, so no relief the court can grant against DHS | Dismissed as moot as to USCIS/DHS officials |
| Whether consular officer's referral to USCIS and resulting delay is judicially reviewable under APA/TRAC | Consular referral was erroneous bureaucratic action causing excessive delay; court can compel agency action | Consular decisions fall under consular nonreviewability and are not judicially reviewable; TRAC factors weigh against relief | Court held the question in abeyance and ordered supplemental briefing on consular nonreviewability and TRAC's application |
| Whether agency delay is "unreasonable" under TRAC (including competing priorities) | Delay from 2019 referral through 2021 reconveyance and post-referal processing is unreasonable | Competing priorities (mission-critical reallocations, pandemic, war-related restrictions) justify delay; expediting would displace similarly situated applicants | Court tentatively found fourth TRAC factor slightly favors Government; will decide after briefing |
| Whether plaintiff's safety/travel restrictions and harms weigh in TRAC (factors 3 & 5) | Claims danger (as a perceived foreign agent) and inability to travel to Warsaw materially prejudice him | Allegations are unsubstantiated and absent from the operative complaint; family/economic harms are typically insufficient | Court found current record insufficient to show health/welfare prejudice; factors not met on present record |
Key Cases Cited
- Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (establishes TRAC factors for unreasonable delay review)
- In re Am. Rivers & Idaho Rivers United, 372 F.3d 413 (D.C. Cir. 2004) (reasonable time measured in weeks or months, not years)
- Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003) (delay reasonableness depends on task complexity, significance, and agency resources)
- In re Barr Laboratories, Inc., 930 F.2d 72 (D.C. Cir. 1991) (courts should avoid relief that merely advances one petitioner at expense of others with no net gain)
- Mirror Lake Village, LLC v. Wolf, 971 F.3d 373 (D.C. Cir. 2020) (visa availability and adjudication may take years)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (plaintiff bears burden to establish jurisdiction)