Shihuan Cheng v. Kathy Baran et al

Filing 21

ORDER re: Defendants' Motion to Dismiss or, in the Alternative, Transfer Venue 17 by Judge Ronald S.W. Lew. Because it lacks subject matter jurisdiction, the Court GRANTS Defendants' Motion pursuant to Rule 12(b)(1) 17 . Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE as to all Defendants 1 . The Court DENIES as MOOT Defendants' Motion to Transfer Venue. The Clerk shall close the case. ( MD JS-6. Case Terminated ) (jre)

Download PDF
1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 SHIHUAN CHENG, 13 Plaintiff, 14 v. 15 16 KATHY BARAN; LORI SCIALABBA; JOHN F. KELLY; 17 JEFF SESSIONS, 18 Defendants. 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CV 17-2001-RSWL-KSx ORDER re: Defendants’ Motion to Dismiss or, in the Alternative, Transfer Venue [17] Currently before the Court is Defendants Kathy 22 Baran, Lori Scialabba, John F. Kelly, and Jeff 23 Sessions’s (collectively, “Defendants”) Motion to 24 Dismiss (“Motion” or “Motion to Dismiss”), or in the 25 Alternative, Transfer Venue (“Motion to Transfer 26 Venue”) [17]. Having reviewed all papers submitted 27 pertaining to this Motion, the Court NOW FINDS AND 28 RULES AS FOLLOWS: the Court GRANTS Defendants’ Motion 1 1 to Dismiss and dismisses Plaintiff Shihuan Cheng’s 2 (“Plaintiff”) Complaint WITHOUT PREJUDICE. The Court 3 DENIES as MOOT Defendants’ Motion to Transfer Venue. 4 I. BACKGROUND 5 A. Factual Background 6 Plaintiff is a native and citizen of the People’s 7 Republic of China. Compl. ¶ 5, ECF No. 1. Defendants 8 are the director of the United States Citizenship and 9 Immigration Services (“USCIS”) California Service 10 Center (“CSC”), the Acting Director of the USCIS, the 11 Secretary of the Department of Homeland Security, and 12 the United States Attorney General.1 13 Id. at ¶¶ 6-9. The Immigration and Nationality Act (“INA”) section 14 203(b)(5), 8 U.S.C. § 1153(b)(5), provides employment15 based fifth preference category visas (“EB-5 visas”) 16 for immigrants that have invested or are “actively in 17 the process of investing” capital in a new commercial 18 enterprise.2 Id. at ¶ 10. The Immigrant Investor 19 Program Office (“IPO”), created by the USCIS, manages 20 and operates the EB-5 visa program. Def.’s Mot. to 21 22 23 24 25 26 1 James McCament began as Acting Director of the USCIS on March 31, 2017. See Defs.’ Mot. Caption, ECF No. 1. As of July 28, 2017, John F. Kelly is no longer the Secretary of the Department of Homeland Security. Per Federal Rules of Civil Procedure 25(d), a public “officer’s successor is automatically substituted as a party” and “[l]ater proceedings should be in the substituted party’s name.” 2 27 28 The immigrant should invest $1,000,000 in capital, but need only invest $500,000 for investments in “targeted employment area[s]” that have an unemployment rate 1.5 times the national average. See 8 U.S.C. § 1153(b)(5)(B)(ii),(C)(i)-(ii). 2 1 Dismiss or Transfer Venue (“Mot.”) 3:8-11; Ex. B, at 3, 2 ECF No. 17-2. The IPO is located in Washington, D.C. 3 Id. 4 On December 14, 2015, after he invested $500,000 5 capital in Galaxy Group, Inc. (“Galaxy”), Plaintiff 6 filed an I-526 Immigrant Petition by an Alien 7 Entrepreneur (“I-526 Petition”) for an EB-5 visa to 8 allow him to enter the United States. Compl. ¶ 5. 9 Galaxy is a California corporation that consults 10 clients in financial investments, trading, cosmetology 11 products, and movie co-production “involving China 12 elements.” Id. at ¶ 12. On December 16, 2015, 13 Plaintiff received his I-526 Petition receipt notice 14 from the USCIS CSC, located in Laguna Niguel, 15 California. 16 Id. at Ex. 1. Because his I-526 Petition was still pending as of 17 March 2017, Plaintiff filed the instant Complaint [1]. 18 On May 9, 2017, Defendants issued a Request for 19 Evidence (“RFE”) to Plaintiff, seeking further evidence 20 that Galaxy performed business activity so that 21 Plaintiff could show his qualifying contribution of 22 capital at risk. Mot. Ex. A, at 3-5. They also sought 23 evidence that Plaintiff complied with 8 C.F.R. § 24 204.6(j)(4)(i)’s “job creation” requirement. 25 11. Id. at 5- Plaintiff has until August 16, 2017 to respond to 26 the RFE. Id. at 1; 8 C.F.R. § 103.2(b)(8)(iv). 27 B. Procedural Background 28 On March 13, 2017, Plaintiff filed a Complaint 3 1 alleging the following claims: (1) a claim under the 2 Mandamus Act, 28 U.S.C. § 1361, for Defendants’ failure 3 to adjudicate the pending I-526 Petition; and (2) 4 violation of the APA, 5 U.S.C. §§ 701 et seq., for 5 unreasonably delaying in processing the I-526 Petition. 6 Compl. ¶¶ 17, 19. Plaintiff also seeks attorneys’ fees 7 and costs under the Equal Access to Justice Act 8 (“EAJA”), 5 U.S.C. § 504 and 28 U.S.C. § 2412.3 9 ¶ 21. Id. at Defendants filed this Motion to Dismiss or, in 10 the Alternative, Transfer Venue [17] on June 21, 2017.4 11 Defendants seek dismissal pursuant to Federal Rules of 12 Civil Procedure (“FRCP” or “Rule”) 12(b)(1) and 13 12(b)(6). Plaintiff filed an Opposition on June 27, 14 2017 [18], and Defendants filed their Reply on July 4, 15 2017 [19]. 16 /// 17 18 3 Plaintiff presents his request for attorneys’ fees under Because the Court lacks jurisdiction over the APA and Mandamus Act claims, it need not reach the attorneys’ fees issue. 19 the EAJA as the third “claim” in the Complaint. 20 21 22 23 24 25 26 27 28 4 Central District Local Rule 6-1 provides that “the notice of motion shall be filed with the Clerk not later than twentyeight (28) days before the date set for hearing . . . .” Plaintiff urges the Court to strike the Motion as it was filed twenty-seven days before the hearing and thus one day late. Pl.’s Opp’n re Mot. to Dismiss or Transfer Venue (“Opp’n”) 3:2122. The “district court has broad discretion to depart from the strict terms of the local rules where it makes sense to do so and substantial rights are not at stake.” Prof’l Programs Grp. v. Dep’t. of Commerce, 29 F.3d 1349, 1354 (9th Cir. 1994). Although Defendants did not comply with Local Rule 6-1, Plaintiff does not show how this minor, inadvertent one-day delay has prejudiced him or threatened a substantial right at stake. Therefore, the Court decides this Motion on its merits. 4 1 II. DISCUSSION 2 A. Legal Standard 3 1. 4 Federal Rules of Civil Procedure 12(b)(1) authorize Motion to Dismiss Pursuant to FRCP 12(b)(1) 5 a court to dismiss claims over which it lacks proper 6 subject matter jurisdiction. The challenge “can be 7 either facial, confining the inquiry to allegations in 8 the complaint, or factual, permitting the court to look 9 beyond the complaint.” Savage v. Glendale Union High 10 Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). When 11 considering a Rule 12(b)(1) Motion challenging 12 jurisdictional allegations, “the Court is not 13 restricted to the face of the pleadings, but may review 14 evidence, such as declarations and testimony, to 15 resolve any factual disputes concerning the existence 16 of jurisdiction.” Khan v. Johnson, 65 F. Supp. 3d 918, 17 923 (C.D. Cal. 2014)(citing McCarthy v. United States, 18 850 F.2d 558, 560 (9th Cir. 1988)). 19 2. 20 Federal Rules of Civil Procedure 12(b)(6) allow a Motion to Dismiss Pursuant to FRCP 12(b)(6) 21 party to move for dismissal of one or more claims if 22 the pleading fails to state a claim upon which relief 23 can be granted. Fed. R. Civ. P. 12(b)(6). A complaint 24 must “contain sufficient factual matter, accepted as 25 true, to state a claim to relief that is plausible on 26 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 27 (internal quotation marks omitted). Dismissal can be 28 based on a “lack of a cognizable legal theory or the 5 1 absence of sufficient facts alleged under a cognizable 2 legal theory.” Balistreri v. Pacifica Police Dep't, 3 901 F.2d 696, 699 (9th Cir. 1990). 4 In ruling on a 12(b)(6) motion, a court may 5 generally consider only allegations contained in the 6 pleadings, exhibits attached to the complaint, and 7 matters properly subject to judicial notice. Swartz v. 8 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court 9 must presume all factual allegations of the complaint 10 to be true and draw all reasonable inferences in favor 11 of the non-moving party. Klarfeld v. United States, 12 944 F.2d 583, 585 (9th Cir. 1991). The question 13 presented by a motion to dismiss is not whether the 14 plaintiff will ultimately prevail, but whether the 15 plaintiff has alleged sufficient factual grounds to 16 support a plausible claim to relief, thereby entitling 17 the plaintiff to offer evidence in support of its 18 claim. Iqbal, 556 U.S. at 678; Swierkiewicz v. Sorema 19 N.A., 534 U.S. 506, 511 (2002). While a complaint need 20 not contain detailed factual allegations, a plaintiff 21 must provide more than “labels and conclusions” or “a 22 formulaic recitation of a cause of action’s elements.” 23 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 24 (internal citation omitted). 25 B. Analysis 26 1. 27 Plaintiff asks the Court to not consider the RFE, The Court Will Consider the RFE Exhibit 28 attached as an exhibit to the Motion, as a Rule 6 1 12(b)(6) Motion to Dismiss can only consider evidence 2 attached to the Complaint. 3 Opp’n 4:16. The Court can consider the RFE as evidence in 4 Defendants’ Rule 12(b)(6) Motion. The Court can 5 consider the RFE under the “incorporation by reference 6 doctrine,” even though it was not an exhibit attached 7 to the Complaint. Knievel v. ESPN, 393 F.3d 1068, 8 1076-77 (9th Cir. 2005). This doctrine permits the 9 Court to consider documents that the plaintiff does not 10 refer to in the complaint, but “plaintiff’s claim 11 depends on the contents of a document, the defendant 12 attaches the document to the motion to dismiss, and the 13 parties do not dispute the authenticity of the 14 document.” 15 Id. The RFE satisfies this criteria, and the Court 16 considers it. Defendants attach the RFE to their 17 Motion and because it suggests there is not a final 18 agency action, it is critical to resolving Plaintiff’s 19 claims that Defendants unreasonably delayed in 20 adjudicating the I-526 Petition and that the Court 21 should compel Defendants to adjudicate the I-526 22 Petition. Compl. ¶¶ 17, 19. Although Plaintiff 23 challenges the RFE’s authenticity on the grounds that 24 Defendants did not attach a declaration authenticating 25 the RFE, he references the RFE in the parties’ Joint 26 Stipulation for an Extension of Time for Defendants to 27 Respond to the Complaint [12], thus neutralizing this 28 third factor. 7 1 As for the Motion on Rule 12(b)(1) grounds, a court 2 can review “any other evidence properly before [it]” to 3 determine the threshold jurisdictional issue. 4 U.S., 630 F.3d 1245, 1248 n.3 (9th Cir. 2011). Green v. The RFE 5 is crucial to whether the Court has subject matter 6 jurisdiction over the APA claim, as it shows whether 7 there was a final agency decision and whether 8 Defendants have unreasonably delayed in processing the 9 I-526 Petition. 10 Accordingly, the Court considers the RFE for 11 purposes of the Rule 12(b)(1) and Rule 12(b)(6) Motion. 12 2. 13 Although Defendants’ Motion is filed under Rules Subject Matter Jurisdiction 14 12(b)(1) and 12(b)(6), the Court first considers the 15 Rule 12(b)(1) Motion for lack of subject matter 16 jurisdiction. Li v. Chertoff, 482 F. Supp. 2d 1172, 17 1175-76 (S.D. Cal. 2007). 18 19 a. Administrative Procedure Act The Court must first determine whether it has 20 jurisdiction over Plaintiff’s APA claim. 21 Pursuant to APA section 555(b), “[w]ith due regard 22 for the convenience and necessity of the parties or 23 their representatives and within a reasonable time, 24 each agency shall proceed to conclude a matter 25 presented to it.” 5 U.S.C. § 555(b). 5 U.S.C. § 26 706(1) adds that “[t]he reviewing court shall— . . . 27 compel agency action unlawfully withheld or 28 unreasonably delayed.” Jurisdiction is also conferred 8 1 through section 704: “an [a]gency action made 2 reviewable by statute and [a] final agency action for 3 which there is no other adequate remedy in a court are 4 subject to judicial review.” 5 5 U.S.C. § 704. Defendants argue that the Court cannot judicially 6 review their decision because they issued an RFE and 7 the I-526 Petition proceedings are ongoing; thus, there 8 is no “final agency action” to review under section 9 704. Mot. 9:4-22. Plaintiff counters that the Court 10 has jurisdiction over the Complaint pursuant to 11 sections 555(b) and 706(1) because Defendants 12 unreasonably delayed adjudication of his I-526 13 Petition, as set forth in the Complaint. 14 Opp’n 7:6-13. Typically, the lack of a “final” agency decision 15 will divest the Court of jurisdiction to review the 16 agency’s decision. “With a few exceptions, if there is 17 no final agency action, there is no basis for review of 18 the government’s decision or policy. One exception 19 occurs where plaintiffs claim that a governmental 20 action was unlawfully withheld or unreasonably 21 delayed.” 22 Cir. 2001). Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. When there is a “genuine failure to act,” 23 courts will allow this “limited exception” to apply. 24 Eco. Ctr., Inc. v. U.S. Forest Serv., 192 F.3d 922, 926 25 (9th Cir. 1999). 26 While an RFE issued pending a full determination of 27 Plaintiff’s I-526 Petition does not appear to be a 28 “final” action, the Court first determines if 9 1 Defendants’ alleged unreasonable delay is an exception 2 to the apparent lack of a final agency action, thus 3 conferring jurisdiction over the Action. 4 5 i. Unreasonable Delay “To invoke subject matter jurisdiction under the 6 APA, a petitioner must show (1) that Defendants had a 7 nondiscretionary duty to act and (2) that Defendants 8 unreasonably delayed in acting on that duty.” Bo Tang 9 v. Chertoff, No. C 07-0683 JF, 2007 WL 1650945, at *1 10 (N.D. Cal. June 5, 2007)(citing Norton v. S. Utah 11 Wilderness Alliance, 542 U.S. 55, 63-65 (2004)). 12 The decision “to issue a visa under the immigrant 13 investor program” is not discretionary; in fact, 14 section 1153(b)(5) of the INA “mandates issuance of 15 such visas,” stating that “visas shall be made 16 available” to immigrants that enter into a new 17 commercial enterprise. Spencer Enters., Inc. v. U.S., 18 345 F.3d 683, 691 (9th Cir. 2003)(internal quotation 19 marks and citation omitted)(emphasis in original). In 20 any event, Defendants do not contest that they have a 21 nondiscretionary duty to issue EB-5 visas, and the 22 first prong for jurisdiction to hear the APA claim is 23 satisfied. However, it is less clear that Defendants 24 unreasonably delayed in acting on their duty to issue 25 an EB-5 visa. 26 There are several rubrics by which the Court could 27 determine whether Defendants “unreasonably delayed” in 28 processing Plaintiff’s I-526 Petition. 10 It does not 1 appear that I-526 petitions have a statutory time frame 2 for adjudication, nor does section 1153(b)(5) prescribe 3 how efficiently Defendants should issue EB-5 visas. 4 See 8 C.F.R. § 204.6; 8 U.S.C. § 1153(b)(5). When 5 “[c]ongress imposes a duty but does not articulate a 6 specific time frame within which that duty must be 7 honored,” the Court may look to section 555(b)’s 8 imperative that an agency adjudicate a matter “within a 9 reasonable time.” Quan v. Chertoff, No. SC 06-7881, 10 2007 WL 1655601, at *4 (N.D. Cal. June 7, 2007). 11 Plaintiff points to Defendants’ admission that, as of 12 December 31, 2016, they were processing applications 13 received five months earlier on July 28, 2016. Compl. 14 Ex. 2 (attaching IPO’s time information page that was 15 last updated on February 17, 2017). This shows, 16 Plaintiff argues, that Defendants did not expeditiously 17 review the I-526 Petition under their own time 18 constraints. But as of May 31, 2017, it appears that 19 Defendants are processing I-526 petitions received as 20 far back as October 18, 2015. USCIS Processing Time 21 Information for the Immigrant Investor Program Office, 22, 23 (last updated July 18, 2017). 24 While the aforementioned timeframes offer some 25 guidance in deciding whether Defendants unreasonably 26 delayed in processing the I-526 Petition, none should 27 be applied in a static way. Congress suggests that an 28 immigrant benefit application should be completed 11 1 within 180 days (6 months), 8 U.S.C. § 1571(b), which 2 would comport with Plaintiff’s evidence that between 3 December 31, 2016 and February 17, 2017, Defendants 4 were processing cases received five to seven months 5 prior on July 28, 2016. By contrast, the IPO’s time 6 information page suggests that by May 9, 2017—when 7 Defendants issued the RFE—they were on schedule, 8 perhaps even a little ahead, in reviewing an I-526 9 Petition received in December 2015, since they were 10 apparently reviewing October 2015 petitions as of May 11 2017. This apparent backlog has been acknowledged in 12 the CIS Ombudsman’s 2017 Annual Report: 13 14 15 16 17 This report confirms continued delays in Immigrant Investor EB-5 processing. There are currently 88,000 pending or approved I-526 petitions for a visa category that allows for 10,000 immigrant visas yearly. EB-5 processing times continue to exceed a year, and have not improved. Investors and their dependents from China may have to wait over 10 years for EB-5 immigrant visas. 18 CIS Ombudsman Issues 2017 Annual Report, 19 No. 14 19 Immigr. Bus. News & Comment NL 6 (Aug. 1, 2017) 20 (emphasis added). 21 Considering that EB-5 visa processing currently may 22 exceed a year and the fact that Chinese investors like 23 Plaintiff have projected wait times of over ten years, 24 the apparent seventeen-month delay between filing of 25 the I-526 Petition in December 2015 and the issuance of 26 the RFE in May 2017 has not crossed the threshold into 27 unreasonableness. See Home Builders Ass’n of Great 28 Chi. v. U.S. Army Corps. Of Eng’rs., 335 F.3d 607, 616 12 1 (7th Cir. 2003)(unreasonable delay not satisfied where 2 plaintiff complained of minor delays resulting from 3 procedural hurdles). The Court cannot conclude that 4 seventeen months is unreasonable in light of cases 5 where courts have held that even four-year delays were 6 permissible. See, e.g., Ou. v. Johnson, No. 7 15-cv-03936-BLF, 2016 WL 7238850, at *3 (N.D. Cal. Feb. 8 16, 2016)(concluding that an eleven-month delay was not 9 unreasonable and collecting cases where delays of four 10 years or less were not unreasonable). 11 To further persuade the Court that it has 12 jurisdiction because Defendants unreasonably delayed in 13 adjudicating his I-526 Petition, Plaintiff relies on 14 two cases, both of which are distinguishable from the 15 facts at hand. In Latifi v. Neufeld, No. 16 13–cv–05337–BLF, 2015 WL 3657860, at *2 (N.D. Cal. June 17 12, 2015), the USCIS reopened and reconsidered its 18 denial of a plaintiff’s I-485 green card application 19 and placed it on hold “to await the possibility of a 20 future exemption that might allow the application to be 21 approved,” as the plaintiff was apparently not exempt 22 from terrorist-related inadmissibility grounds. After 23 a six-year hold with no movement, the plaintiff raised 24 an APA claim. The parties agreed to stay the motion 25 pending the USCIS’s RFE, but the USCIS reviewed 26 plaintiff’s responses to the RFE and took no further 27 action on the petition. Id. at *2. The court denied 28 the defendants’ motion to dismiss for lack of 13 1 jurisdiction, not precisely on the grounds that the 2 defendants “unreasonably delayed”—although six years is 3 a considerably long time—but rather because the 4 “decision” to not adjudicate plaintiff’s application is 5 non-discretionary and thus is reviewable by the court. 6 Id. at *3. In its analysis regarding the additional 7 motion for summary judgment, the court did conclude 8 that a six-year delay was “unreasonable as a matter of 9 law.” 10 Id. at *4. In Soneji v. Department of Homeland Security, 525 11 F. Supp. 2d 1151, 1156 (N.D. Cal. 2007), the court 12 concluded it had jurisdiction to consider the 13 plaintiffs’ APA claim. In that case, one plaintiff’s 14 I-485 application was pending for three-and-a-half 15 years after the USCIS had preliminarily requested that 16 the FBI name check both plaintiffs. Id. at 1153. 17 Defendants had yet to adjudicate the petitions as they 18 conceded that they had yet to receive one plaintiff’s 19 name check results. Id. The court concluded that the 20 case epitomized “unreasonable delay,” as one 21 plaintiff’s background check was processed the day it 22 was received while the other plaintiff’s application 23 languished for three years and the defendants offered 24 “no meaningful explanation for the disparity in the 25 treatment of the two . . . .” 26 Id. at 1156. Plaintiff’s reliance on Latifi and Soneji is 27 misplaced, and it is not clear that Defendants 28 unreasonably delayed or genuinely failed to act. 14 1 First, the defendants in Latifi and Soneji delayed far 2 longer in adjudicating the plaintiffs’ petitions; here, 3 Defendants delayed only roughly 1.5 years from December 4 2015 to May 2017—as opposed to 3.5 years or 6 5 years—before issuing the RFE. Second, the defendants 6 in Latifi took no further action on the plaintiff’s 7 application after reviewing his responses to the RFE 8 and the defendants in Soneji failed to complete a 9 background check in the application process after 3.5 10 years. Unlike those cases, where the petition 11 adjudication had “no foreseeable end in sight,” Latifi, 12 2015 WL 3657860, at *4, Defendants have sought further 13 information that Plaintiff’s EB-5 visa eligibility was 14 established, providing him with a deadline of August 15 16, 2017 to respond. Mot. Ex. A, at 1. Defendants 16 will review the RFE after August 16, 2017. This falls 17 in line with the steps for adjudicating an I-526 18 Application under 8 C.F.R. §§ 103.2 (b)(8)(iv).5 19 Language in the RFE also suggests that Defendants have 20 already reviewed and evaluated Plaintiff’s application 21 materials. 22 Mot. Ex. A, at 3. Third, unlike the defendants in Latifi and Soneji, 23 Defendants have “taken action in furtherance of a 24 25 5 Section 103.2(b)(8)(iv) provides: “A request for evidence 26 . . . will specify the type of evidence required, and whether initial evidence or additional evidence is required . . . [it] 27 will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed 28 twelve weeks.” 15 1 review of [p]laintiff’s application.”6 Compare 2 Kobaivanova v. Hansen, No. 1:11cv943, 2011 WL 4401687, 3 at *6 (N.D. Oh. Sept. 16, 2011)(“the record contains no 4 evidence that [d]efendants have been idle or are 5 unwilling to adjudicate [p]laintiff’s I-485 6 application”), and Doe v. U.S. Immigration & 7 Citizenship Serv., No. 15 cv 10958, 2017 WL 770998, at 8 *5 (N.D. Ill. Feb. 28, 2017)(“USCIS clearly did more 9 than react to the petition” when reviewing an I-526 10 petition), with Gelfer v. Chertoff, No. C 06-06724 WHA, 11 2007 WL 902382, at *2 (N.D. Cal. Mar. 22, 12 2007)(unreasonable delay where USCIS was awaiting FBI 13 name check results for two years but “[did] not point 14 to a single action taken during that period of time to 15 further the processing of petitioner’s application . . 16 . [or why the] application is particularly 17 troublesome.”) Latifi and Soneji’s reasoning would be 18 more compelling had Defendants taken several years to 19 20 6 Plaintiff argues that Defendants still owe him a duty to 21 adjudicate his I-526 Petition, as he “still awaits adjudication” and that “the RFE changes nothing.” Opp’n 10:21-22. A similar 22 argument—that issuance of an RFE after filing of the Complaint jurisdiction 23 did not change the “unreasonable delay” and thatraised and present at the time the Complaint was filed—was 24 rejected in Net-Inspect, LLC v. U.S. Citizenship & Immigration 25 26 27 28 Servs., No. C14–1514JLR, 2015 WL 880956, at *6 (W.D. Wash. Mar. 2, 2015). The diversity jurisdiction rule, that “jurisdiction should be assessed as of the time the complaint was filed,” was not applicable to the context of “administrative finality.” Id. (citing Cabaccang v. U.S. Citizenship & Immigration Servs., 627 F.3d 1313, 1317 (9th Cir. 2010)). Thus, Defendants did not unreasonably delay just because the RFE was issued after Plaintiff filed the Complaint. 16 1 respond to Plaintiff’s RFE response and allowed the I2 526 Petition to languish; in that event, Plaintiff may 3 have a stronger argument for unreasonable delay. See 4 Meixian Ye v. Kelly, 17 Civ. 3010 (BMC), 2017 WL 5 2804932 (E.D.N.Y. June 28, 2017)(“If the time comes in 6 the future where there is another delay that plaintiff 7 believes is illegal, plaintiff will be free to commence 8 another proceeding to challenge that delay . . . this 9 Court is not going to keep the case open based on 10 plaintiff's desire to have a judicial overseer of her 11 administrative process.”) 12 Thus, although Defendants have a nondiscretionary 13 duty to issue EB-5 visas, the Court lacks jurisdiction 14 over the APA claim pursuant to APA section 701(6) 15 because Plaintiff cannot show that Defendants 16 unreasonably delayed in acting on that duty. The next 17 issue is whether there is a “final” agency action that 18 the Court has jurisdiction to review. 19 20 ii. Final Agency Action An agency action is judicially reviewable and the 21 Court has subject matter jurisdiction when either the 22 agency action “(1) is made reviewable by statute; or 23 (2) it constitutes a “final” action for which there is 24 no other adequate remedy in a court.” 25 F.3d at 1315. Cabaccang, 627 Plaintiff offers no statute that would 26 make Defendants’ actions reviewable; thus, the Court 27 looks to the second prong. 28 The Supreme Court has developed a two-part test to 17 1 determine whether an agency decision is final. 2 v. Spear, 520 U.S. 154, 177 (1997). Bennett First, the action 3 must “mark the consummation of the agency’s decision4 making process,” and second, the action “must be one by 5 which ‘rights or obligations have been determined,’ or 6 from which ‘legal consequences will flow.’” Id. at 7 177. 8 Courts have concluded that issuance of an RFE 9 during the pendency of a visa application review is not 10 a “final agency” action subject to judicial review 11 under APA section 704. See, e.g., Elgin Ass’t Living 12 EB-5, LLC v. Mayorkas, No. 12 cv 2941, 2012 WL 4932661, 13 at *3 (N.D. Ill. Oct. 16, 2012)(RFEs are not final 14 agency actions because they do not consummate the 15 USCIS’s decision-making process regarding petitions and 16 visas, and no legal consequences seemingly flow from 17 them); True Capital Mgmt., LLC v. U.S. Dep’t of 18 Homeland Sec., No. 13–261 JSC, 2013 WL 3157904, at *3 19 (N.D. Cal. June 20, 2013)(citation omitted)(reopening 20 of H-1B petition and issuing an RFE after defendants’ 21 prior denial was “not the ‘final administrative work’ 22 in th[e] matter”). 23 The Ninth Circuit and several courts sitting in 24 this circuit have determined that even reopening of 25 agency decisions denying plaintiffs’ visa petitions are 26 not “final” and thus are not judicially reviewable 27 under section 704. See, e.g., Bhasin v. Dept. of 28 Homeland Sec., 413 F. App’x 983, 985 (9th Cir. 18 1 2011)(concluding that USCIS’s reopening of plaintiff’s 2 previously denied visa petition was not a final agency 3 action subject to judicial review); Mamigonian v. 4 Biggs, 710 F.3d 936, 942 (9th Cir. 2013)(district court 5 lacked jurisdiction to review USCIS’s actions where it 6 had not determined her pending adjustment-of-status 7 application). 8 Here, the issuance of the RFE cannot be understood 9 as a “final” action for purposes of the APA. The RFE 10 expresses that Defendants will not make a final 11 decision until Plaintiff provides additional evidence. 12 See Mot. Ex. A, at 1 (“USCIS may deny your petition as 13 abandoned, [or] may deny your petition based on the 14 record”). Defendants’ RFE cannot be said to be the 15 “last word on the matter” of Plaintiff’s I-526 16 Petition. Net-Inspect, 2015 WL 880956. The issuance 17 of the RFE does not mark the consummation of the 18 decision-making process; rather, it is one step in the 19 adjudication process. Plaintiff has until August 16, 20 2017 to respond, and in turn Defendants have a chance 21 to review the response. 22 103.2(b)(8)(iv). See 8 C.F.R. § Moreover, Defendants did not provide 23 a “definitive statement of [the] agency’s position,” as 24 the RFE only “established that [Plaintiff] [was] not 25 eligible for the benefit” he was seeking. 26 at 1. Mot. Ex. A, Defendants left open whether Plaintiff was 27 eligible for the EB-5 benefits. Id. And if reopened 28 agency decisions are not final, as the aforementioned 19 1 cases suggest, the Court does not see how a current 2 pending I-526 Petition, to which no approval or denial 3 has yet occurred, constitutes a “final action.” 4 Finally, the issuance of the RFE does not create rights 5 or obligations, nor do legal consequences flow from it 6 because it is an intermediary step in the decision7 making process regarding petitions and visas. See 8 generally 8 C.F.R. § 103.2; Elgin, 2012 WL 4932661, at 9 *3. 10 Accordingly, because of the issuance of the RFE, 11 Defendants’ actions up to this point are best 12 characterized as a non-final agency action. Defendants 13 are well into the decision-making process regarding 14 Plaintiff’s I-526 Petition. This Court does not have 15 the jurisdiction to interfere with this process, as the 16 finality requirement is meant to prevent premature 17 judicial intervention. Independent Petroleum Ass’n of 18 Am. v. Babbit, 971 F. Supp. 19, 28 (D.C. Cir. 1997). 19 Thus, the Court GRANTS Defendants’ Motion as to the APA 20 claim and dismisses it for lack of subject matter 21 jurisdiction.7 22 23 24 25 26 27 28 7 Defendants also seek dismissal of the APA claim on Rule 12(b)(6) grounds. While the Court lacks subject matter jurisdiction over the APA claim due to a missing final agency decision, the APA claim would similarly fail under a Rule 12(b)(6) analysis, as a “final agency action” is a requisite element of an APA claim. Net-Inspect, 2015 WL 880956, at *7. Defendants also argue that the APA claim merits dismissal under Rule 12(b)(1) because Plaintiff “has not exhausted his administrative remedies where there is no final agency action.” 20 1 2 b. Mandamus Act Under the Mandamus Act, 28 U.S.C. § 1361, Plaintiff 3 asks the Court to compel Defendants to adjudicate his 4 I-526 Petition. Compl. ¶ 17. Section 1361 confers 5 original jurisdiction to a district court over “any 6 action in the nature of mandamus to compel an officer 7 or employee of the United States or any agency thereof 8 to perform a duty owed to the plaintiff.” The court 9 may issue a writ of mandamus if “(1) [plaintiff’s] 10 claim is clear and certain; (2) the official's duty is 11 nondiscretionary, ministerial, and so plainly 12 prescribed as to be free from doubt; and (3) no other 13 adequate remedy is available.” Azurin v. Von Raab, 803 14 F.2d 993, 996 (9th Cir. 1986). 15 As the Ninth Circuit has recognized, “mandamus 16 relief and relief under the APA are ‘in essence’ the 17 same,” and it has “elected to analyze [a mandamus] 18 claim under the APA where there is an adequate remedy 19 under the APA.” R.T. Vanderbilt Co. v. Babbitt, 113 20 F.3d 1061, 1065 (9th Cir. 1997)(citations omitted); see 21 also Taiebat v. Scialabba, No. 17-cv-0805-PJH, 2017 WL 22 747460, at *4 (N.D. Cal. Feb. 27, 2017)(“Relief under 23 the mandamus act and the APA are virtually equivalent 24 25 Mot. 10:19-21. Because the Court has already concluded that it 26 lacks jurisdiction under 5 U.S.C. § 704 because there is no final agency action to review, and because the “exhaustion of 27 administrative remedies” argument is largely repetitive of the “lack of final agency action” argument, the Court declines to 28 address this additional argument. 21 1 when a petitioner seeks to compel an agency to act on a 2 nondiscretionary duty”)(citing Independence Mining Co., 3 Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997)). 4 Section 706(1) of the APA allows a court to compel 5 “agency action unlawfully withheld or unreasonably 6 delayed.” R.T. Vanderbilt Company, 113 F.3d at 1065. 7 Plaintiff seeks largely the same remedy under the 8 Mandamus Act as the APA, asking the Court to compel 9 adjudication of his I-526 Petition that he alleges 10 Defendants have “continual[ly] delay[ed] and refus[ed] 11 to adjudicate.” Compl. ¶ 17. Because Plaintiff has a 12 similar remedy under the APA and the Court has already 13 determined that it lacks jurisdiction over the APA 14 claim, see supra part II.B.2.a.i, this “obviate[s] the 15 need to consider the jurisdictional question posed 16 under the Mandamus Act.” Liu v. Chertoff, No. 17 CV–06–1682–ST, 2007 WL 2435157, at *5 (D. Or. Aug. 29, 18 2007). 19 Briefly, the Court concludes for largely the same 20 reasons in the APA analysis that it lacks jurisdiction 21 to compel the relief sought in the Mandamus Act claim. 22 Plaintiff’s entitlement to adjudication of his I-526 23 Petition is not necessarily “clear and certain,” as he 24 has not demonstrated that the seventeen-month delay was 25 unreasonable. Wang v. Chertoff, SACV07-01260-CJC(ANx), 26 2008 WL 11342756, at *3 (C.D. Cal. Mar. 12, 2008); see 27 also Kobaivanova, 2011 WL 4401687, at *7 (Plaintiff 28 lacks a “clear and indisputable right” to an “order 22 1 compelling the USCIS to immediately adjudicate [his I2 526 application], because there has been no 3 unreasonable delay”). As previously mentioned, 4 Defendants have a nondiscretionary, ministerial duty to 5 act on Plaintiff’s I-526 Petition in a reasonable time. 6 See Spencer, 345 F.3d at 961. 7 Finally, Plaintiff may have difficulty showing he 8 lacks an adequate alternative remedy. “Mandamus relief 9 generally will not be granted where a court finds that 10 an applicant has an adequate alternative remedy, such 11 as an administrative appeal.” Ragland, Mandamus 12 Actions—no Adequate Alternative Remedy, 10 Bus. & Com. 13 Litig. Fed. Cts. § 105:21 (4th ed. Dec. 2016). The 14 Court is not Plaintiff’s last resort to have Defendants 15 adjudicate his I-526 Petition. Even if Defendants had 16 denied his Petition, he would still have an adequate 17 alternative remedy of an appeal to the Administrative 18 Appeals Office. But in any event, the “no other 19 alternative remedy” argument is premature, as 20 Defendants are currently processing the I-526 Petition 21 and this is not the kind of situation where court 22 intervention is needed to “spur [Defendants] to proceed 23 with adjudication and render a decision.”8 24 25 26 27 28 8 Defendants argue that Plaintiff’s mandamus claim is moot because Defendants have issued an RFE for additional evidence of eligibility, thus acting on his I-526 Petition. “A case is moot ‘only if interim events have completely and irrevocably eradicated the effects of alleged improper conduct raised in the petition for writ of mandamus.’” Peng v. Gonzales, No. C-06-07872 JCS, 2007 WL 2141270, at *5 (N.D. Cal. July 25, 23 1 To the extent Plaintiff asks the Court to compel 2 Defendants to adjudicate his I-526 Petition more 3 quickly, the Court does not see how it could provide 4 this relief short of asking Defendants to move up their 5 August 16, 2017 deadline for the RFE response. Perhaps 6 Plaintiff anticipates that Defendants will stall in 7 their adjudication post-RFE, but it is not the Court’s 8 place to inject itself into Defendants’ decision-making 9 based on hypothetical future actions. The Court defers 10 to Defendants and advises Plaintiff to “take [his I-526 11 Petition] issue up through the [Defendants’] normal 12 administrative procedures.” Accord Luo v. Coultice, 13 178 F. Supp. 2d 1135, 1140 (C.D. Cal. 2001); Miller v. 14 Napolitano, 3:13–CV–00443 (CSH), 2013 WL 4011710, at *5 15 (D. Conn. Aug. 5, 2013)(“[V]isa-granting processes 16 ought to continue to unfold without the extraordinary 17 remedy of judicial interference”) 18 Because the Court lacks jurisdiction to hear the 19 Mandamus Act claim, Defendants’ Motion is GRANTED as to 20 21 2007)(citation omitted). For immigration cases compelling 22 adjudication of an application or petition, “a claim is moot if the application has been adjudicated.” Id. (citation omitted). 23 From many of these immigration cases, the claim appears to be agency issues e.g., Zhou 24 moot when theNo. C–08–04523 a formal decision. See, *2 (N.D. v. Chertoff, RMW, 2009 WL 2246231, at 25 Cal. July 24, 2009)(court had no “outstanding duty” to compel 26 27 28 defendants to perform where plaintiff’s petition for immigration visa was denied). To the extent Plaintiff seeks full adjudication of the I-526 Petition, the interim step of issuing an RFE may not necessarily moot the mandamus claim as in other cases. In any event, the Court lacks jurisdiction over the mandamus claim as the three-part test is not satisfied. 24 1 this claim. 2 3. Motion to Transfer Venue 3 Defendants alternatively move to transfer this 4 Action to the District of Columbia under 28 U.S.C. § 5 1406(a) because the events giving rise to the Action, 6 which concern the USCIS IPO’s adjudication process, 7 take place at the IPO’s headquarters in the District of 8 Columbia. Mot. 14:1-8. Because the Court lacks 9 subject matter jurisdiction and dismisses this case 10 pursuant to Rule 12(b)(1), it DENIES as MOOT the Motion 11 to Transfer Venue. 12 13 III. CONCLUSION Because it lacks subject matter jurisdiction, the 14 Court GRANTS Defendants’ Motion pursuant to Rule 15 12(b)(1) [17]. Plaintiff’s Complaint is DISMISSED 16 WITHOUT PREJUDICE as to all Defendants [1]. The Court 17 DENIES as MOOT Defendants’ Motion to Transfer Venue. 18 The Clerk shall close the case. 19 IT IS SO ORDERED. 20 21 DATED: August 3, 2017 22 s/ HONORABLE RONALD S.W. LEW Senior U.S. District Judge 23 24 25 26 27 28 25

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?