Kalinowsky v. Mayorkas

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — 8 MARK W. KALINOWSKY, Case No. 22-cv-07209-VKD 9 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 10 v. JUDGMENT AND GRANTING DEFENDANTS’ CROSS MOTION FOR 11 ALEJANDRO MAYORKAS, et al., SUMMARY JUDGMENT Defendants. Re: Dkt. Nos. 19, 22 — 12 — — 13 — 14 Plaintiff Mark Kalinowsky is a Canadian national who applied for an immigrant visa under 15 the EB-5 immigrant investor visa program. He alleges that the U.S. Citizenship and Immigration 16 Services (“USCIS”) has unreasonably delayed adjudication of his visa application, known as a 17 Form I-526 petition. He seeks review of defendants’ action under the Administrative Procedures 18 Act (“APA”), 5 U.S.C. §§ 555 (b), 706(1), and an order compelling USCIS to adjudicate his 19 petition with 30 days under the Mandamus Act, 28 U.S.C. § 1361.1 20 The parties have filed cross motions for summary judgment. Dkt. Nos. 19, 22. On August 21 29, 2023, the Court held a hearing on the motions. Dkt. No. 33. Upon consideration of the 22 moving and responding papers, as well as the oral arguments presented, the Court denies Mr. 23 Kalinowsky’s motion for summary judgment and grants USCIS’s cross motion for summary 24 judgment. — 25 — — 26 — — 27 — 1 All parties have expressly consented that all proceedings in this matter may be heard and finally 1 I. BACKGROUND 2 Unless otherwise indicated, the following facts are not genuinely disputed. 3 A. EB-5 Immigrant Investor Visa Program 4 The EB-5 immigrant investor visa program provides a path for immigrant investors and 5 their family members to obtain lawful permanent residence in the United States if they invest in 6 new commercial enterprises (“NCEs”) that creates full-time employment for at least 10 U.S. 7 workers. See 8 U.S.C. § 1153 (b)(5). Successful applicants and their family members receive 8 conditional permanent resident status. 8 U.S.C. § 1186b(a). After two years, the investor may 9 petition for removal of the conditions and obtain full lawful permanent resident status by 10 demonstrating that their investment meets the program’s requirements. See id. § 1186b(c). 11 However, if USCIS determines that the investment does not meet the EB-5 program’s 12 requirements or is fraudulent, then the investor’s conditional status can be terminated. Id. § 13 1186b(b). 14 At the time relevant to these proceedings, if a non-citizen investor chose to invest in an 15 NCE in a “targeted employment area,”2 he or she would have to invest at least $500,000.3 8 16 U.S.C. § 1153 (b)(5)(C). One way that a non-citizen may participate in the EB-5 program is by 17 investing in a designated “Regional Center” NCE. See Dep’t of Commerce, et al., Appropriations 18 Act, 1993, Pub. L. No. 102-395, § 610 , 106 Stat. 1828 , 1874-75 (1992) (“Appropriations Act of 19 1993”). Multiple investors may invest in the same Regional Center, and together they may satisfy 20 the employment creation requirement by establishing that the investment will create a sufficient 21 number of jobs indirectly, as demonstrated by accepted, reasonable methodologies.4 See 8 C.F.R. — 22 — 2 “Targeted employment area” is defined as “a rural area or an area which has experienced high — 23 — unemployment (of at least 150 percent of the national average rate).” 8 U.S.C. § 1153 (b)(5)(B)(ii). — 24 — 3 In March 2022, the minimum amount required for investment in an NCE in a targeted — 25 — employment area was increased to $800,000. See EB-5 Reform and Integrity Act of 2022, Pub. L. No. 117-103, § 102 , 136 Stat. 49 , 1070. — 26 — 4 By contrast, a non-citizen investor relying on a “Direct” EB-5 petition must show that his or her — 27 — NCE investment directly results in the creation of full-time employment of at least 10 U.S. 1 § 204.6(m)(7)(ii). 2 The Regional Center program was temporary and its continuation required reauthorization 3 by Congress. See Appropriations Act of 1993 § 610(b). Since its advent in 1992, the program has 4 been reauthorized many times. Dkt. No. 19-1 at ECF 285 (Ex. B), Holly Straut-Eppsteiner, 5 Congressional Research Service Report on the EB-5 Immigrant Investor Visa (updated Dec. 16, 6 2021). The Regional Center program is now the principal means by which immigrant investors 7 obtain EB-5 visas. See id. (noting that 96% of EB-5 visas issued in fiscal year 2019 were under 8 the Regional Center program). 9 Congressional authorization for the Regional Center program expired in accordance with 10 its then-existing terms on June 30, 2021. See Consolidated Appropriations Act of 2021, Pub. L. 11 No. 116-260, div. O, title I, § 104, 134 Stat. 1182 , 2148; Da Costa v. Immigr. Inv. Program Off., — 12 — 643 F. Supp. 3d 1 , 2022 WL 17173186 , at *2 (D.D.C. 2022). Once the program lapsed, USCIS 13 stopped adjudicating Regional Center-based Form I-526 petitions. Zhu v. U.S. Dep’t of State, No. 14 22-55129, 2022 WL 17102357 , at *1 (9th Cir. Nov. 22, 2022). USCIS placed then-pending 15 petitions on hold, allowing applicants to maintain their place in the adjudication workflow. See 16 Dkt. No. 22-3 at ECF 99-100 (Ex. 11) (USCIS, EB-5 Reform & Integrity Act of 2022 Listening 17 Session (Apr. 29, 2022)). 18 In March of 2022, President Biden signed a Consolidated Appropriations Act, see Pub. L. 19 No. 117-103, which included the EB-5 Reform and Integrity Act of 2022 and provided authority 20 for a reformed Regional Center program through September 30, 2027. Da Costa, 2022 WL 21 17173186, at *2; 8 U.S.C. § 1153 (b)(5)(E)(i). The EB-5 Reform and Integrity Act repealed prior 22 legislation authorizing the Regional Center program, but included certain “grandfathering” 23 provisions which permit adjudication of Form I-526 petitions filed before March 15, 2022, 24 according to the eligibility requirements in place at the time such petitions were filed. See Dkt. 25 No. 22-3 at ECF 41 (Ex. 6). Since enactment of this new legislation, USCIS has resumed 26 processing Regional Center-based Form I-526 petitions filed on or before expiration of the — 27 — 1 statutory authorization of the legacy Regional Center program. Id. 2 USCIS has a backlog of pending Form I-526 petitions. In recent years, the pace of the 3 agency’s processing of petitions has declined and the backlog has grown. See Da Costa v. 4 Immigr. Inv. Program Off., --- F.4th ---, 2023 WL 5313526 , at *3 (D.C. Cir. 2023) (“[T]he data 5 show increasingly slow adjudications, with a markedly increased lag by Fiscal Year 2020.”). Over 6 the last five years, the median processing time for a Form I-526 petition has steadily grown from 7 17.9 months in fiscal year 20186 to 50.3 months in fiscal year 2023. Historical National Median 8 Processing Time (in Months) for All USCIS Offices for Select Forms by Fiscal Year, 9 https://egov.uscis.gov/processing-times/historic-pt (last visited Sept. 15, 2023); Da Costa, 2023 10 WL 5313526 , at *3 (citing the same data). USCIS currently has fewer employees reviewing Form 11 I-526 petitions now than it did before the backlog accrued and adjudicates fewer petitions each 12 year. Dkt. No. 22-1 ¶¶ 7, 8 (reporting 67 employees in fiscal year 2018 and 32 employees today); 13 Jain v. Jaddou, No. 21-CV-03115-VKD, 2023 WL 2769094 , at *2 (N.D. Cal. Mar. 31, 2023) 14 (“USCIS completed adjudication of over 12,000 petitions in FY 2017 and over 15,000 petitions in 15 FY 2018, but adjudicated only 4,492 petitions in FY 2019 and only 3,421 petitions in FY 2020.”). 16 B. USCIS’s “Visa Availability” Review Process 17 Previously, USCIS reviewed and adjudicated Form I-526 petitions on a “first in, first out” 18 basis—i.e., the petitions were processed in the order of filing. Dkt. No. 22-3 at ECF 20 (Ex. 3). 19 In the spring of 2020, USCIS announced the adoption of a “visa availability” approach to 20 processing these petitions. Id. This approach takes into account the availability of visas for an 21 immigrant’s country of chargeability (typically, their country of birth) and gives highest priority to 22 petitions for which visas are available or will be soon.7 See id. After considering the availability — 23 — 6 The fiscal year runs from October 1 of one year and ends on September 30 of the following year. — 24 — Glossary Definition of “Fiscal year,” U.S. Citizenship and Immigration Services, https://www.uscis.gov/tools/glossary. — 25 — 7 The Immigration and Nationality Act places annual limits on the number of employment-based — 26 — visas allocated to immigrants from each country of chargeability. See 8 U.S.C. § 1152 . For some countries, primarily China and India, the number of applications has exceeded the number of visas — 27 — available for some time, leading to major backlogs, including in the EB-5 program. See Dkt. No. 1 of visas, USCIS then considers several other factors, including whether the relevant NCE has 2 already been reviewed and when the petition was filed (i.e., “first in, first out”). Dkt. No. 22-3 at 3 ECF 22-25 (Ex. 4) (“Questions and Answers: EB-5 Immigrant Investor Program Visa Availability 4 Approach”). 5 Using the “visa availability” approach, USCIS sorts petitions into three queues. Dkt. No. 6 22-1 ¶ 18. The first queue contains petitions where a visa is not available or soon to be available. — 7 — Id. Once USCIS determines that a visa is available or might be available soon, the petition moves 8 into either the second queue, if the agency has not already reviewed the NCE to which the petition 9 relates, or the third queue, if the agency has already reviewed the relevant NCE. Id. When USCIS 10 completes review of an NCE related to petitions in the second queue, all petitions related to that 11 NCE are transferred to the third queue. Id. Petitions in the third queue are then reviewed on a first 12 in, first out basis. Id. 13 In July of 2023, USCIS changed the way it reviews petitions in the third queue to allow for 14 a single examiner to review multiple petitions related to the same NCE at one time, using the date 15 of the oldest filed petition related to the NCE to set the order of review. Dkt. No. 30-1 at ECF 4-5 16 (Ex. 23). 17 C. Plaintiff’s Form I-526 Petition 18 Mr. Kalinowsky filed a Form I-526 petition on November 19, 2019 as part of the EB-5 19 Regional Center program. Dkt. No. 1 ¶ 16. Specifically, he invested $500,000 in a real estate 20 development project in Oakland, California associated with the Behring Regional Center. See 21 Dkt. No. 19-1 at ECF 2 (Ex. A). Mr. Kalinowsky sought visas for himself, his wife, and their two 22 children. Id. at ECF 21. 23 Mr. Kalinowsky resides in San Jose, California. Id. at ECF 14. He holds an E-2 treaty 24 investor visa, which is valid until May 2024. Dkt. No. 22-1 ¶ 28. Mr. Kalinowsky has been able 25 to obtain work and travel authorization while his Form I-526 petition is pending. Id. 26 As of June 2023, Mr. Kalinowsky’s petition was number 2,781 in USCIS’s third queue, — 27 — 1 meaning that there is a visa available or soon to be available, and USCIS has already reviewed the 2 NCE related to the petition. Id. ¶ 24 . At the hearing, the government reported that his petition had 3 advanced to approximately number 1,700 in the third queue. Dkt. No. 33 (audio recording at 4 10:22 a.m.). 5 II. DISCUSSION 6 A. Legal Standard 7 Mr. Kalinowsky asserts claims under both the Mandamus Act, 28 U.S.C. § 1361 , and the 8 APA, 5 U.S.C. § 706 (1), based on the same factual allegations. See Dkt. No. 1. He seeks 9 essentially the same relief under both claims. Id. ¶¶ 32-47 . In these circumstances, the Court 10 considers Mr. Kalinowsky’s claims that USCIS has unreasonably delayed adjudication of his 11 Form I-526 petitions using the TRAC framework described below. See Vaz v. Neal, 33 F.4th 1131 , 12 1135-36 (9th Cir. 2022) (APA); In re Nat. Res. Def. Council, Inc., 956 F.3d 1134 , 1138 (9th Cir. 13 2020) (mandamus). 14 A party may move for summary judgment on a “claim or defense” or “part of . . . a claim 15 or defense.” Fed. R. Civ. P. 56(a). Summary judgment is appropriate when, after adequate 16 discovery, there is no genuine issue as to any material facts and the moving party is entitled to 17 judgment as a matter of law. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Material 18 facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 19 242, 248 (1986). 20 Here, USCIS has produced a set of “agency documents” to Mr. Kalinowsky. Dkt. No. 18. In 21 addition, USCIS relies on supporting declarations of Alissa Emmel, the chief of its Immigrant Investor 22 Program Office, and Jan Lyons, a senior advisor in the same office. Dkt. No. 22-1; Dkt. No. 29-1. 23 Mr. Kalinowsky has not indicated that he requires any discovery pursuant to Rule 56(d). See Dkt. No. 24 4 ¶ 4. He does not rely on any supporting declarations. Neither party identifies any material facts that 25 are in dispute. 26 “When simultaneous cross-motions for summary judgment on the same claim are before 27 the court, the court must consider the appropriate evidentiary material identified and submitted in 1 Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132 , 1134 (9th Cir. 2001). 2 Where the legal issue central to both motions is the same, the court need not organize its analysis 3 of the cross-motions in separate sections. Tulalip Tribes of Washington v. Washington, 783 F.3d 4 1151, 1156 (9th Cir. 2015). 5 B. Unreasonable Delay 6 Mr. Kalinowsky claims that USCIS has unreasonably delayed in processing his Form I-526 7 petition. 8 The APA provides that “[w]ith due regard for the convenience and necessity of the parties 9 or their representatives and within a reasonable time, each agency shall proceed to conclude a 10 matter presented to it.” 5 U.S.C. § 555 (b). Where an agency has a “clear, certain, and mandatory 11 duty” to take a discrete action, a court may compel the agency to act where it has “unreasonably 12 delayed” in performing that duty. 5 U.S.C. § 706 (1); Vaz, 33 F.4th at 1136 . A court may grant 13 mandamus relief “to compel an officer or employee of the United States or any agency thereof to 14 perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 . The parties do not dispute that USCIS 15 has a clear, mandatory duty to adjudicate Mr. Kalinowsky’s Form I-526 petition. Dkt. No. 19 at 16 11-12; Dkt. No. 22 at 10-11. The question presented is whether the agency has unreasonably 17 delayed that adjudication. 18 The Ninth Circuit requires a court to consider the six factors set out in Telecommunications 19 Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”), in evaluating 20 whether agency action has been unreasonably delayed. Vaz, 33 F.4th at 1137 . The TRAC factors 21 are: “(1) the time agencies take to make decisions must be governed by a ‘rule of reason;’ (2) 22 where Congress has provided a timetable or other indication of the speed with which it expects the 23 agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of 24 reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable 25 when human health and welfare are at stake; (4) the court should consider the effect of expediting 26 delayed action on agency activities of a higher or competing priority; (5) the court should also take 27 into account the nature and extent of the interests prejudiced by the delay; and (6) the court need 1 unreasonably delayed.’” Id. (quoting TRAC, 750 F.2d at 80 ) (cleaned up). 2 The Court addresses each of the TRAC factors below. 3 1. First TRAC Factor: Rule of Reason 4 The most important TRAC factor is the first factor, the “rule of reason.” In re Nat. Res. 5 Def. Council, Inc., 956 F.3d 1134 , 1139 (9th Cir. 2020). 6 Mr. Kalinowsky argues that USCIS does not use a rule of reason in adjudicating Form I7 526 petitions and that the agency’s 45-month delay in adjudicating his petition is per se 8 unreasonable. See Dkt. No. 19 at 14-17. USCIS argues that its “visa availability” review process 9 for adjudicating Form I-526 petitions is a rule of reason that provides a fair, rational, and orderly 10 approach to completing the required agency action. Dkt. No. 22 at 11-17. In addition, USCIS 11 observes that no court has concluded that a 45-month delay is processing a Form I-526 petition is 12 per se unreasonable. Id. at 12 . 13 Mr. Kalinowsky argues that USCIS “does not use a true, or stable and definable[] Visa 14 Availability Approach” and “redefine[s] and conflate[s] the definition of whether a visa is 15 available[] by adding other factors.” Dkt. No. 19 at 15. In particular, he contends that he had a 16 visa available during the lapse in the regional center program’s statutory authorization in 2021, but 17 USCIS improperly stopped processing his application during that time, and thus, he argues, 18 USCIS did not follow the “pure visa availability approach” it claims to follow. Id. USCIS 19 responds that it “does not employ a ‘pure’ visa availability approach” and that its decision to stop 20 processing regional center-based Form I-526 petitions in 2021 was necessary due to the lapse in 21 statutory authorization for the program. Dkt. No. 22 at 13, 16. 22 Mr. Kalinowsky’s argument is not persuasive. USCIS’s decision to stop processing Form 23 I-526 petitions during the lapse in statutory authorization (while preserving applicants’ place in the 24 adjudication workflow) is not inconsistent with application of a rule of reason. Other district 25 courts addressing this same argument have reached the same conclusion. See Da Costa, 2022 WL 26 17173186, at *6 (collecting cases). Moreover, as the USCIS observes, every district court that has 27 considered USCIS’s “visa availability” approach to review of Form I-526 petitions has determined 1 2:23-CV-02033-SB-MRW, 2023 WL 4291841 , at *3 (C.D. Cal. June 16, 2023); Sheiner v. 2 Mayorkas, No. 22-CV-04871-SVK, 2023 WL 3568088 , at *7 (N.D. Cal. Apr. 14, 2023); Devani v. 3 U.S. Citizenship & Immigr. Servs., No. 22-CV-01932 (DLF), 2023 WL 2913645 , at *3 (D.D.C. 4 Apr. 12, 2023); Jain, 2023 WL 2769094 , at *6; Ramesh v. Mayorkas, No. 21-CV-00653-DMR, — 5 — 2023 WL 5667887 , *5-7 (N.D. Cal. Feb. 7, 2023); Bega v. Jaddou, No. CV 22-02171 (BAH), — 6 — 2022 WL 17403123 , at *6-*7 (D.D.C. Dec. 2, 2022); Da Costa, 2022 WL 17173186 , at *8; 7 Mokkapati v. Mayorkas, No. 21-1195, 2022 WL 2817840 , at *6 (D.D.C. July 19, 2022); Desai v. 8 U.S. Citizenship & Immigr. Servs., No. CV 20-1005 (CKK), 2021 WL 1110737 , at *5 (D.D.C. 9 Mar. 22 , 2021); Thakker v. Renaud, No. 20-1133 (CKK), 2021 WL 1092269 , at *6 (D.D.C. 10 Mar. 22 , 2021); Palakuru v. Renaud, 521 F. Supp. 3d 46 , 51 (D.D.C. 2021). And on August 18, 11 2023, the D.C. Circuit concluded that the USCIS employs a rule of reason when it uses the “visa 12 availability” approach to adjudicate Form I-526 petitions. Da Costa, 2023 WL 5313526 , at *6.8 13 Mr. Kalinowsky does not attempt to distinguish any of this authority in his briefing, and he also 14 was unable to distinguish the D.C. Circuit’s decision in Da Costa when questioned about it during 15 the hearing. See Dkt. No. 19 at 14-17; Dkt. No. 24 at 10; Dkt. No. 33 (audio recording at 10:13 16 a.m.). 17 Mr. Kalinowsky’s other argument, that a 45-month delay in adjudicating his Form I-526 18 petition, is also unsupported. The authority on which he relies is inapposite, as it does not concern 19 the adjudication of Form I-526 petitions. See Dkt. No. 19 at 14 (citing Aslam v. Mukasey, 531 F. 20 Supp. 2d 736, 737 (E.D. Va. 2008); Kashkool v. Chertoff, 553 F. Supp. 2d 1131, 1133 (D. Ariz. 21 2008) (I-485 applications); Alkenani v. Barrows, 356 F. Supp. 2d 652, 653 (N.D. Tex. 2005) 22 (application for naturalization)). He also concedes that no other court has found a similar delay in 23 adjudicating a Form I-526 petition per se unreasonable and several courts have found similar or 24 even greater delays not unreasonable. Dkt. No. 33 (audio recording at 10:02 a.m.-10:04 a.m.). — 25 — — 26 — 8 The D.C. Circuit’s decision is not binding on this Court, but it is particularly persuasive in this context as the Ninth Circuit has looked to the “more developed law of the District of Columbia — 27 — Circuit” in its unreasonable delay decisions. In re Nat. Res. Def. Council, Inc., 956 F.3d at 1139 1 See also Jain, 2023 WL 2769094 , at *3, 6 (between 40 and 48 months); Devani, 2023 WL 2 2913645, at *4 (41 months); Sheiner, 2023 WL 3568088 , at *8 (41 months); Da Costa, 2023 WL 3 5313526, at *7 (rejecting the claim that “four-and-one-half years to process an immigration 4 petition is per se unreasonable”) (cleaned up). Cf. Beyene v. Napolitano, No. C 12-01149 WHA, — 5 — 2012 WL 2911838 , at *6-7 (N.D. Cal. July 13, 2012) (5-year delay in processing I-485 application 6 not unreasonable when plaintiff already resided in the United States and provided no evidence of 7 financial harm). 8 Accordingly, the Court concludes that the first TRAC factor weighs in favor of USCIS. 9 2. Second TRAC Factor: Congressional Indication 10 The second TRAC factor considers whether Congress has provided an indication of the 11 speed with which it expects an agency to act. TRAC, 750 F.2d at 80 . Here, the parties agree that 12 Congress has not mandated a time limit for adjudication of Form I-526 petitions. Dkt. No. 19 at 13 14; Dkt. No. 22 at 17. They disagree, however, about whether a 45-month delay is inconsistent 14 with Congress’s purpose in enacting the EB-5 immigrant investor program. In particular, Mr. 15 Kalinowsky argues that extended delays erode public confidence in the program and undermine its 16 effectiveness by discouraging potential immigrant investors from investing their money in the 17 United States. Dkt. No. 19 at 16; Dkt. No. 33 (audio recording at 10:19 a.m.-10:20 a.m.). 18 On at least two occasions, Congress has given some indication of its expectations 19 regarding the time frame in which USCIS will process Form I-526 petitions. First, in 2000, 20 Congress enacted a statute authorizing funds to eliminate a then-existing backlog of certain 21 immigration petitions. The statute provides: “It is the sense of Congress that the processing of an 22 immigrant benefit application should be completed not later than 180 days after the initial filing of 23 the application[.]” 8 U.S.C. § 1571 (b). Second, in the EB-5 Reform and Integrity Act of 2022, 24 Congress directed USCIS to complete a fee study and to adjust the fees it charges “to achieve 25 efficient processing.” Pub. L. No. 117-103 § 106 , 136 Stat. 49 , 1103-04 (Mar. 15, 2022). 26 Specifically, Congress required USCIS to set fees for services provided under the immigrant 27 investor programs “at a level sufficient to ensure the full recovery only of the costs of providing 1 later than” 90 to 240 days, depending on the nature of the petition. Id. 2 The Ninth Circuit has held that a “sense of Congress” provision “amounts to no more than 3 non-binding, legislative dicta” and “creates no enforceable federal rights.” Yang v. Cal. Dep’t of 4 Soc. Servs., 183 F.3d 953 , 958, 961-62 (9th Cir. 1999). However, the second TRAC factor does 5 not require that the Court consider only mandated statutory time limits. See Desai, 2021 WL 6 1110737, at *6. This Court has previously concluded that “[w]ith respect to the Form I-526 7 petitions at issue, Congress has not been silent, but has at least indicated that the agency’s goal 8 should be to adjudicate these provisions in a matter of months, not years.” Jain, 2023 WL 9 2769094, at *7 (citing Uranga v. U.S. Citizenship & Immigr. Servs., 490 F. Supp. 3d 86 , 103 10 (D.D.C. 2020)) (“[Section 1571(b)] is certainly an indication of what the legislature had in mind – 11 after all, Congress had the option of saying nothing on the subject at all.”). See also Da Costa, — 12 — 2023 WL 5313526 , at *9 (“[E]ven though the language [of Section 1571(b)] is insufficient to set a 13 deadline, we can look to Congress’s aspirational statement as a ruler against which the agency's 14 progress must be measured.”) (cleaned up). 15 Here, Mr. Kalinowsky’s Form I-526 petition has been pending for over 45 months. Even 16 if the Court excludes the nine months during which the lapse in Congressional authorization 17 prevented USCIS from acting on pending petitions, the delay is still 36 months. Moreover, it is 18 undisputed that USCIS’s processing time has increased dramatically in recent years. While 19 USCIS offers several explanations for these delays, including staff attrition, the COVID-19 20 pandemic, spending cuts, competing priorities, as well as the lapse in statutory authorization, Dkt. 21 No. 22 at 14-16; Dkt. No. 22-1 ¶¶ 9-14, the agency’s failure to devote sufficient resources to 22 performing its mandatory duty to adjudicate these petitions—or Congress’s failure to appropriate 23 sufficient funds for that purpose—does not relieve the agency from its responsibility to act within 24 a reasonable time. See Jain, 2023 WL 2769094 , at *7; Da Costa, 2023 WL 5313526 , at *9 (“We 25 do not make light of the troubling backlog of petitions waiting for USCIS adjudication, nor does 26 the increasingly sluggish pace of adjudication escape our attention. Those problems are serious.”). 27 As noted above, in the context of agency action on requests for immigration benefits, 1 Heinauer, 32 F. Supp. 3d 1063, 1071 (N.D. Cal. 2014) (collecting cases); Ramesh, 2023 WL 2 5667887, at *7-8. However, this Court agrees with those courts that have concluded delays of this 3 magnitude do not compare favorably to available indications of Congressional expectations. See 4 Keller Wurtz v. U.S. Citizenship & Immigr. Servs., No. 20-CV-2163-JCS, 2020 WL 4673949 , at 5 *5 (N.D. Cal. Aug. 12, 2020) (“USCIS is correct that [the 8 U.S.C. 1571(b)] timeline is not 6 mandatory, but it nevertheless weighs in favor of finding the delay here—approximately four 7 times Congress’s stated goal—to be unreasonable.”); Islam, 32 F. Supp. 3d at 1073 (“While the 8 language of § 1571(b) is not mandatory, it nonetheless suffices to tip the second TRAC factor in 9 [plaintiff’s] favor.”); see also Desai, 2021 WL 1110737 , at *6 (finding that the second TRAC 10 factor weighed in favor of plaintiff in light of section 1571(b), while concluding that plaintiff 11 failed to state an unreasonable delay claim in consideration of the remaining factors); Da Costa, — 12 — 2023 WL 5313526 , at *9 (“This factor somewhat favors Plaintiffs, as they have waited longer than 13 180 days. But the delay has not reached the level of disproportionality we have previously held 14 sufficient to grant relief.”). 15 As it is undisputed that Mr. Kalinowsky has waited for years, well beyond the 16 Congressional indication of the average time an adjudication should reasonably require, the 17 second TRAC factor weighs in favor of Mr. Kalinowsky. 18 3. Third and Fifth TRAC Factors: Nature of Interests 19 The third and fifth TRAC factors overlap, requiring this Court to consider whether Mr. 20 Kalinowsky’s claim implicates human health and welfare, as well as the nature and extent of the 21 interests prejudiced by the delay. TRAC, 750 F.2d at 80 . 22 Mr. Kalinowsky contends that these factors weigh in his favor, claiming that “his family’s 23 plans for the future remain uncertain and his investment remains at extraordinary risk.” Dkt. No. 24 19 at 17. He argues that “[t]he longer this process takes, the greater [the] uncertainty of ultimate 25 success [is],” noting that USCIS’s delays in adjudicating his Form I-526 petition expose both his 26 investment and visa application to a greater risk from shifts in economic conditions and the 27 potential that his regional center might back out of the project. Id. at 18. According to Mr. 1 obtained. Id. at 18-19. Mr. Kalinowsky also claims his expectations have been disappointed, 2 citing “the general expectation . . . that participants [in the EB-5 program] would invest over a 3 two-year period, essentially the period of conditional residence, and then be eligible to receive 4 their investment monies back,.” Id. at 18. USCIS responds that Mr. Kalinowsky’s allegations of 5 harm are vague and unsupported by the record. Dkt. No. 22 at 19. It also notes that other courts 6 have rejected health and welfare arguments from visa applicants who already reside in the United 7 States and allege only uncertainty in future immigration status and financial investments. Id. at 8 19-20. 9 “Courts in this district have found that where a plaintiff does not show ‘any immediate risk 10 of deportation or impairment to his physical, financial, or safety needs if his application is not 11 immediately adjudicated,’ the third and fifth TRAC factors weigh in favor of denying relief.” Jain, — 12 — 2023 WL 2769094 , at *8 (quoting Beyene, 2012 WL 2911838 , at *8). Other courts analyzing 13 claims made by EB-5 applicants residing in the United States have arrived at similar conclusions. 14 See, e.g., Bega, 2022 WL 17403123 , at *7 (“Although the delay in processing their I-526 petitions 15 no doubt does impact plaintiffs' ability to plan for their future with certainty and to protect their 16 investments, these uncertainties are inherent in the immigration process and economic in nature, 17 and thus do not support a finding that the third and fifth TRAC factors weigh in plaintiffs’ favor.”). 18 Mr. Kalinowsky’s allegations of uncertainty regarding his immigration status and inability 19 to make long term plans are not particularly compelling, and are indistinguishable from claims 20 other courts have found unsuccessful. The investment risks Mr. Kalinowsky cites are “inherent in 21 the I-526 application process.” Da Costa, 2022 WL 17173186 , at *10 (quoting Fangfang Xu v. 22 Cissna, 434 F. Supp. 3d 43 , 54 (S.D.N.Y. 2020)) (cleaned up); see also Tingzi Wang v. U.S. 23 Citizenship & Immigr. Servs., 375 F. Supp. 3d 22, 27 (D.D.C. 2019) (“[A]n investment made to 24 support an I-526 petition ‘cannot be said to be at risk’ if it was ‘guaranteed to be returned, 25 regardless of the success or failure of the business.’”) (quoting In re Izummi, 22 I. & N. Dec. 169 , 26 184 (BIA 1998)); Dkt. No. 22-3 at ECF 65 (Ex. 10) (stating the same). Moreover, Mr. 27 Kalinowsky’s concerns about whether he will ultimately be able to obtain unconditional 1 be successful. See Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir. 2 1984) (“An approved visa petition is merely a preliminary step in the visa application process. . . . 3 It does not guarantee that a visa will be issued, nor does it grant the alien any right to remain in the 4 United States.”). 5 Accordingly, the Court concludes that the third and the fifth TRAC factors weigh in favor 6 of USCIS. 7 4. Fourth TRAC Factor: Effect of Expediting Delayed Action 8 The fourth TRAC factor requires the Court to consider the effect of expediting adjudication 9 of plaintiffs’ applications “on agency action of a higher or competing priority.” TRAC, 750 F.2d 10 at 80. 11 Mr. Kalinowsky argues that the effect of expediting review of his petition would be 12 “minimal” on USCIS, as it only takes the agency approximately one working day to adjudicate a 13 Form I-526 petition. Dkt. No. 19 at 19. USCIS argues that Mr. Kalinowsky is simply asking for 14 “a judicial order putting [himself] at the head of the queue” and “produc[ing] no net gain.” Dkt. 15 No. 22 at 21. See also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094 , 1100 16 (D.C. Cir. 2003). 17 The Court agrees with USCIS. Mr. Kalinowsky seeks individual relief. However, he does 18 not claim that he was “singled out for slower adjudication” and instead “appear[s] similarly 19 situated to all other Form I-526 petitioners who are waiting for USCIS to clear its petition 20 backlog.” See Da Costa, 2023 WL 5313526 , at *8. And “[b]ecause USCIS prioritizes 21 adjudication based on the date a petition was filed . . . a court order requiring USCIS to adjudicate 22 [Mr. Kalinowsky’s] Form I-526 petition[] would move it ahead of longer-pending petitions.” Id. 23 Most courts have found that the fourth TRAC factor weighs heavily in the agency’s favor 24 when a judicial order putting plaintiffs at the head of the line would simply move all others back 25 one space and produce no net gain. See id.; Jain, 2023 WL 2769094 , at *9 (collecting cases). 26 Moreover, the Ninth Circuit has cautioned against “interfer[ing] with [an agency’s] discretion in 27 prioritizing its activities and allocating its resources.” Vaz, 33 F.4th at 1138 . Mr. Kalinowsky 1 Accordingly, the Court finds that the fourth TRAC factor weighs in favor of USCIS. 2 5. Sixth TRAC Factor: Impropriety 3 The sixth TRAC factor acknowledges that “the court need not find any impropriety lurking 4 behind agency lassitude in order to hold that agency action is unreasonably delayed.” TRAC, 750 5 F.2d at 80. However, when an agency has delayed an action in bad faith, “by singling someone 6 out for bad treatment or asserting utter indifference to a congressional deadline,” a court may find 7 that this impropriety justifies a finding of unreasonable delay. Indep. Min. Co. v. Babbitt, 105 8 F.3d 502, 510 (9th Cir. 1997) (quoting In re Barr Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991)). 9 Mr. Kalinowsky does not allege that USCIS has acted in bad faith, but does comment that 10 “enticing investors to advance hundreds of thousands of dollars in the United States offering the 11 potential for permanent resident status . . . borders on unethical when compared to uncertain 12 timelines that put an immigrant’s fate, and investment, in uncertain jeopardy.” Dkt. No. 19 at 20. 13 USCIS responds that its processing times have been affected by several factors beyond its control, 14 including “employee attrition, revenue shortfalls, a nearly year-long hiring freeze, and the sunset 15 in statutory authorization related to the EB-5 Regional Center Program.” Dkt. No. 22 at 23. 16 Based on this record, the Court finds no evidence of impropriety in USCIS’s processing of 17 Form I-526 petitions generally or Mr. Kalinowsky’s petition in particular. Accordingly, the Court 18 concludes that this factor does not weigh in Mr. Kalinowsky’s favor and does not alter the Court's 19 analysis based on the other TRAC factors. See Bega, 2022 WL 17403123 , at *8. 20 III. CONCLUSION 21 The Court concludes that the first, third, fourth, and fifth TRAC factors weigh in favor of 22 USCIS; the second factor weighs in favor of Mr. Kalinowsky; and the sixth factor does not impact 23 the Court’s analysis. On this summary judgment record, the Court concludes that the agency’s 24 delay is not unreasonable as a matter of law and that Mr. Kalinowsky is not entitled to the relief he 25 seeks under the APA or the Mandamus Act. Accordingly, the Court grants USCIS’s motion for 26 summary judgment and denies Mr. Kalinowsky’s motion for summary judgment. 27 // 1 IT IS SO ORDERED. 2 || Dated: September 20, 2023 — 3 — Varieyuin®, □□ □□□□□□ VIRGINIA K. DEMARCHI 5 United States Magistrate Judge — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — — 12 — — 13 — © — 15 — — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —