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Suzana Rodrigues Do NASCIMENTO, Plaintiff, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
ORDER GRANTING MOTION TO DISMISS
THIS CAUSE is before the Court on Defendants United States Department of Homeland Security (“DHS”), Alejandro Mayorkas as DHS Secretary, United States Citizenship and Immigration Services (“USCIS”), Ur Jaddou as Director of USCIS, and Alissa Emmel as Chief of USCIS's Immigrant Investor Program Office's (collectively, “Defendants”) Motion to Dismiss (“Motion”), (ECF No. 7). Plaintiff has filed a response in opposition to the Motion (“Response”) (ECF No. 8), to which Defendants have replied (“Reply”) (ECF No. 9). After the filing of this briefing, Defendants filed several Notices of Supplemental Authority (ECF Nos. 10, 12, 14, 16, 17, 18, 19, 20), some to which Plaintiff has responded (ECF Nos. 13, 15, 20). After careful consideration, the Motion is GRANTED for the reasons set forth herein.
In an effort to encourage job growth in the United States and investments into the United States from foreign nationals, the EB-5 visa program allows foreign investors to make certain investments into United States-based commercial enterprise initiatives in exchange for “employment based, fifth-preference (‘EB-5’) immigrant visa[s] ․” (Compl. ¶ 19, ECF No. 1). Plaintiff, a Brazilian national whose principal place of residence is in Rio de Janeiro, invested $500,000 into the development of the Radisson RED Miami Airport hotel (the “Project”). (Id. ¶¶ 1, 8). On November 20, 2019, after this investment, Plaintiff filed her I-526 petition and paid a $3,675.00 application fee to the USCIS “in exchange for timely adjudication of her petition.” (Id. ¶ 5). Today, Plaintiff's petition remains pending. (Id. ¶ 6).
Plaintiff alleges that “[t]he longer it takes for Investor Plaintiff's I-526 petition to be processed, the longer the money is at risk, and the greater the risk that the Project will not have available funds to repay her in the event that her I-526 petition is denied.” (Id. ¶ 35). Plaintiff commenced this action on July 20, 2022, claiming that Defendants’ refusal to act is “arbitrary and not in accordance with law” and that “Defendants willfully, and unreasonably, have delayed in and have refused to[ ] adjudicate Investor Plaintiff's petition, thereby depriving her of the right to a decision on her status and the peace of mind to which she is entitled. In addition, Plaintiff is unable to live, work, or invest and create new jobs in the United States as a result of this delay.” (Id. ¶ 54). As such, Plaintiff is seeking adjudication of her petition within thirty days via a Writ of Mandamus and/or a Court order entered pursuant to the Administrative Procedure Act (“APA”). (Id. ¶ 74).
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “Attacks on subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) come in two forms”: facial and factual attacks. Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990) (per curiam). “On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion, meaning that the court must consider the allegations of the complaint to be true.” Fru Veg Mktg., Inc. v. Vegfruitworld Corp., 896 F. Supp. 2d 1175, 1179 (S.D. Fla. 2012). “Factual attacks challenge subject matter jurisdiction in fact, irrespective of the pleadings.” Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). The burden is on the party seeking to invoke the Court's jurisdiction to establish that jurisdiction exists. Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673. If the Court determines that it lacks subject matter jurisdiction, it must dismiss the claim. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
Under Federal Rule of Civil Procedure 12(b)(6), the Court will grant a motion to dismiss if the complaint fails to state a claim for which relief can be granted. To survive dismissal, the complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). At this stage of the case, “the question is whether the complaint ‘contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Worthy v. Phenix City, 930 F.3d 1206, 1217 (11th Cir. 2019) (alteration adopted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). In ruling on a motion to dismiss, the Court “accepts the factual allegations in the complaint as true and construes them in the light most favorable to plaintiff.” Speaker v. U.S. HHS CDC & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). A complaint must contain enough facts to plausibly allege the required elements. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295–96 (11th Cir. 2007). A pleading that offers “a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
Defendant seeks dismissal of the Complaint on two grounds. First, Defendant argues that the Court lacks subject matter jurisdiction under the Mandamus Act. Second, Defendant argues that Plaintiff has failed to state a claim upon which relief can be granted under the Administrative Procedure Act. The Court addresses each in turn.
A. This Court Lacks Subject Matter Jurisdiction over the Mandamus Act Request.
The Mandamus Act provides district courts with “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. A writ of mandamus is “an extraordinary remedy which should be utilized only in the clearest and most compelling of cases.” Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (citing Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)). “Mandamus relief is only appropriate when: (1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) ‘no other adequate remedy is available.’ ” Cash, 327 F.3d at 1258 (quoting Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980)) (alterations incorporated). The burden is on the party seeking mandamus to demonstrate that the party's right to the writ is “clear and indisputable.” Hakki v. Sec'y, Dep't of Veterans Affs., 7 F.4th 1012, 1036–37 (11th Cir. 2021). “[A] writ of mandamus ‘is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.’ ” Cash, 327 F.3d at 1258 (quoting Heckler v. Ringer, 466 U.S. 602, 616, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984)). Even if all three elements are satisfied, the decision is “granted only in the exercise of sound discretion.” Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 373, 75 S.Ct. 845, 99 L.Ed. 1155 (1955).
Defendant argues that Plaintiff has failed to meet her burden under the Mandamus Act because she has not met any of the factors. (Motion at 8). This Court agrees. “The first and second factors required for the entry of a writ of mandamus are related in this case, where the question of Defendants’ having a clear duty determines in large part whether Plaintiff clearly has a right to the relief sought.” Osechas Lopez v. Mayorkas, No. 22-CIV-21733, --- F.Supp.3d ––––, ––––, 2023 WL 152640, at *3 (S.D. Fla. Jan. 10, 2023). The question here is whether Defendants have a clear duty to act on Plaintiff's I-526 petition in a certain timeframe, and if the amount of time since the submission of Plaintiff's I-526 petition constitutes an unreasonable delay by USCIS. Plaintiff alleges that “[b]ecause Defendants have a purely ministerial duty under the law to adjudicate Investor Plaintiff's application and petitions within a reasonable time, and have utterly failed, or refused, to do so, a Writ of Mandamus is proper to compel Defendants to perform their duty to adjudicate Investor Plaintiff's application and petition.” (Compl. ¶ 72).
The Complaint points to 8 U.S.C. § 1571(b), which states that “[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application,” for the proposition that Defendants have unreasonably delayed in processing her I-526 petition. (Compl. ¶ 37) (citing § 1571(b)) (emphasis added). In a recent case in this District requesting similar relief to that requested here, the court found that a plaintiff had “not demonstrated a clear right to the relief requested—that USCIS adjudicate her I-526 petition within thirty (30) days of this Court's order—largely because there is no congressionally or administratively prescribed timeframe within which USCIS has a duty to process or adjudicate I-526 petitions.” Osechas, --- F.Supp.3d at ––––, 2023 WL, at *4. As the court noted, “ ‘should’ is not ‘must,’ and [plaintiff] has failed to plead Defendants’ clear duty and any right to the relief sought.” Id.; see also Alfassi v. Garland, 614 F. Supp. 3d 1252, 1255 (S.D. Fla. 2022) (“[B]ecause Defendants exert discretionary, and not mandatory, powers in processing I-130 Petitions, Plaintiffs have not established that Defendants have a clear duty to act with respect to the pacing of their I-130 Petition.”); Grinberg v. Swacina, 478 F. Supp. 2d 1350, 1352 (S.D. Fla. 2007) (holding that district courts are without jurisdiction to consider complaints regarding “the pace at which immigration decisions are made” in a case involving I-485 applications); Eldeeb v. Chertoff, 619 F. Supp. 2d 1190, 1205 (M.D. Fla. 2007) (finding that, with respect to an I-485 application, USCIS “has a non-discretionary duty to act on an application, a discretionary duty as to the pace of processing the application, and a non-discretionary duty to adjudicate an application.”) (emphasis in original). As such, Plaintiff fails to meet the first two factors.
Moreover, Plaintiff's claim fails under the third factor, whether there is no other adequate remedy available. As pled in the Complaint, another adequate remedy exists pursuant to the APA (Compl. ¶ 14 (“Review is also warranted, and relief sought under the Administrative Procedure Act 5 U.S.C. § 701 et seq., § 702, § 706(1) and § 555(b).”)); see Hollywood Mobile Ests. Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1268 (11th Cir. 2011) (“The availability of relief under the Administrative Procedure Act ․ forecloses a grant of a writ of mandamus.”).
B. Plaintiff Fails to State a Claim under the APA.
The Complaint also seeks relief under the APA 5 U.S.C. §§ 701, 702, 706(1), 555(b). (Compl. ¶¶ 14, 73-74). The APA authorizes suit by any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. “Agency action” includes “failure to act.” 5 U.S.C. § 551(13). The APA requires agencies to conclude matters “within a reasonable time,” and authorizes federal courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. §§ 555(b), 706(1).
As asserted by Plaintiff in her Response, courts often look to the six-factor balancing test set forth in Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”), to determine whether agency delay is reasonable or unreasonable. (Response at 11). The TRAC factors are: (1) “the time agencies take to make decisions must be governed by a rule of reason”; (2) “where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason”; (3) “delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake”; (4) “the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority”; (5) “the court should also take into account the nature and extent of the interests prejudiced by delay”; and (6) “the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” TRAC, 750 F.2d at 80 (quotations omitted).
The first and second TRAC factors are “typically considered together” and in this case, weigh in Defendants’ favor. See Milligan v. Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020). Of the two factors, the first—whether a “rule of reason” guides the agency—is the most important. See In re Core Commc'ns Inc., 531 F.3d 849, 855 (D.C. Cir. 2008). Plaintiff argues that USCIS’ purported “rule of reason,” which is known as the “visa availability” approach, “is not a uniform rule of reason because there is no identified processing logic for assignment of current I-526 forms.” (Response at 12). This method has repeatedly been upheld as “reasonable and well within the agency's workload-management discretion” and “consistent with the ‘wide discretion’ afforded to USCIS by Congress in the ‘area of immigration processing,’ ” Mokkapati v. Mayorkas, 2022 WL 2817840, at *5 (D.D.C. July 19, 2022) (quoting Skalka v. Kelly, 246 F. Supp. 3d 147, 153–54 (D.D.C. 2017)). See Nohria v. Renaud, 2021 WL 950511, at *6 n.5 (D.D.C. March 14, 2021) (“The agency's process is clearly governed by a solid rule of reason—the visa availability approach—meeting the first factor.”); see also Telles v. Mayorkas, 2022 WL 2713349, at *3 (D.D.C. July 13, 2022) (holding that USCIS's processing of I-526 petitions is governed by an “identifiable rationale”) (internal quotation omitted).
The second factor, whether “Congress has provided a timetable or other indication of speed,” also weighs in Defendants’ favor. As discussed above, there is no congressionally or administratively mandated timetable in which I-526 petitions must be adjudicated. All that is statutorily stated is that “[i]t is the sense of Congress” that an I-526 petition “should he completed not later than 180 days after the initial filing ․” § 1571(b) (emphasis added). But the “180 day” language does not obligate Defendants to adjudicate an I-526 petition, it merely expresses a legislative “sense.” See Bian v. Clinton, 605 F.3d 249, 255 (5th Cir. 2010), vacated on other grounds by Bian v. Clinton, 2010 WL 3633770 (5th Cir. Sept. 16, 2010) (holding that § 1571(b)’s “sense of Congress” language “merely expresses Congress's sense of the adjudicative process,” and does not indicate that USCIS has a “plainly prescribed” duty to adjudicate a petition within any specific time frame.). Thus, the second factor also tilts the TRAC scale in Defendants’ favor.
The third and fifth TRAC factors consider whether “human health and welfare are at stake,” and the “nature and extent of the interests prejudiced by delay.” TRAC, 750 F.2d at 80. Plaintiff argues that while the basis of her “visa applications is economic, any visa necessarily touches on the health, welfare, and safety of those seeking to plan their lives in the United States.” (Response at 19). Plaintiff also alleges that she “faces harm arising from the uncertainty of her immigration status, which is especially exacerbated given that she is from Brazil, a country rife with violent crime where gang activity and organized crime is widespread.” (Id. at 19-20; see also Compl. ¶ 36). However, “[i]n the absence of other factual assertions that would allow the drawing of such an inference, this remains merely a conclusory allegation unentitled to presumptive acceptance at the motion-to-dismiss stage.” Bega v. Jaddou, No. CV 22-02171 (BAH), 2022 WL 17403123, at *7 (D.D.C. Dec. 2, 2022), aff'd sub mm. Da Costa v. Immigr. Inv. Program Off., No. 22-5313, ––– F.4th ––––, 2023 WL 5313526 (D.C. Cir. Aug. 18, 2023). Here, Plaintiff's Complaint does not allege any specific physical or mental health concerns. Taken in the light most favorable to Plaintiff, the third and fifth TRAC factors also weigh in favor of Defendants. See Telles, 2022 WL 2713349, at *4 (finding economic harm does not weigh in favor of finding unreasonable delay); Bega, 2022 WL 17403123, at *7 (finding uncertainties about planning the future are inherent in the immigration process and economic in nature).
As to the fourth factor, consideration must be given to the effect of expediting Plaintiff's petition on the USCIS's “activities of a higher or competing priority.” TRAC, 750 F.2d at 80. “Many courts have expressed concern over elevating one petitioner's position in the visa queue to the detriment of all others legitimately ahead of the petitioner, given that an order compelling agency action would effectively reorder the agency's established priorities.” Otto v. Mayorkas, No. 8:22-CV-1172-WFJ-SPF, 2023 WL 2078270, at *5 (M.D. Fla. Feb. 17, 2023); see, e.g., Palakuru v. Renaud, 521 F. Supp. 3d 46, 52 (D.D.C. 2021). Moreover, switching positions of applicants would “produce no net gain” in the overall progression of adjudications. Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003). Therefore, this factor weighs in favor of Defendants.
Lastly, the sixth TRAC factor provides that “the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” TRAC, 750 F.2d at 80. Here, this factor is neutral. Although Plaintiff alleges that she has a right to adjudication in a manner which is “not arbitrary and capricious,” that USCIS has adjudicated a decreasing annual volume of I-526 petitions since at least 2015, and that “[m]ysteriously, despite the substantial volume of petitions that can be processed ․ Plaintiff's case has not been adjudicated in over three years,” notwithstanding these contentions, this factor does not weigh in favor of either party. (Compl. ¶¶ 16, 49, 51). See Palakuru, 521 F. Supp. 3d at 53 (considering the sixth TRAC factor “neutral” even though the plaintiff alleged that the government had engaged in “purposeful delay” and “artificially inflate[d] Form I-526 processing times”).
In sum, under the applicable TRAC factors, the Court does not find that Plaintiff has adequately stated a claim of unreasonable delay and therefore grants Defendants’ Motion.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss, (ECF No. 7), is GRANTED. The Complaint is DISMISSED without prejudice.
DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of August, 2023.
JOSE E. MARTINEZ, UNITED STATES DISTRICT JUDGE
Response sent, thank you
Docket No: Case Number: 22-cv-22261-JEM
Decided: August 31, 2023
Court: United States District Court, S.D. Florida,
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