Sychev v. Cuccinelli ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KIRILL SYCHEV,
Plaintiff,
v. Civil Action No. 20-3484 (CKK)
UR M. JADDOU, et al.,
Defendants.
MEMORANDUM OPINION
(March 30, 2022)
In this action, Plaintiff Kirill Sychev (“Plaintiff” or “Sychev”) seeks injunctive and
mandamus relief ordering officials of the United States Department of State (“State
Department”) and the United States Department of Homeland Security (“DHS”) to more
expeditiously act on his Form I-526 petition for an EB-5 immigrant investor visa pursuant to the
Administrative Procedure Act’s (“APA”) bar on “unreasonabl[e] delay[].” 5 U.S.C. § 706(1).
Because DHS has already conveyed Plaintiff’s visa application for processing to the State
Department’s National Visa Center (“NVC”), the Court shall dismiss as moot the complaint as
against the DHS Defendants. As for the State Department Defendants, the Court shall order
additional briefing from the parties before ruling. Accordingly, and upon review of the
pleadings, 1 the relevant legal authority, and the record as a whole, the Court shall GRANT IN
PART AND HOLD IN ABEYANCE IN PART Defendants’ [15] Motion to Dismiss.
1
The Court’s consideration has focused on the following:
• Plaintiff’s Complaint, ECF No. 1 (“Compl.”);
• Defendants’ Motion to Dismiss and Memorandum in Support Thereof, ECF No. 15
(“Mot.”);
• Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion Motino to Dismiss,
ECF No. 16 (“Opp.”); and
I. BACKGROUND
The EB-5 Immigrant Investor Program
The Immigration and Nationality Act (“INA”), U.S.C. §§ 1101 et seq., authorizes the
issuance of “EB-5” visas to immigrants who have “invested” capital in a “new commercial
enterprise” that “will benefit the United States economy and create full-time employment” for
ten citizens or non-citizens with work authorization. 8 U.S.C. § 1153(b)(5)(A)(i)-(ii). Through
this process, the applicant must have also made a direct investment of at least $1,000,000 or an
investment of $500,000 into a “targeted employment area.” § 1153(b)(5)(C)(ii). 2 A “targeted
employment area” is a “rural area or an area which has experienced high unemployment.” §
1153(b)(5)(B)(ii); see also 8 C.F.R. § 204.6(e).
At the time of the complaint, the law offered EB-5 applicants a second route through
investing into a “regional economic center.” See Departments of Commerce, Justice, and State,
the Judiciary and Related Agencies Appropriations Act of 1993, Pub. L. No. 102-395, § 610(a),
106 Stat. 1828, 1874 (Oct. 6, 1992); 8 C.F.R. § 204.6(m). These regional centers combine the
funds of many investors and channel them to enterprises that “increase[] export sales, improve[]
regional productivity, job creation, or increase[] domestic capital investment.” 8 C.F.R. §
204.6(m)(3)(i). A foreign investor’s investment in an approved Regional Center satisfies the
• Defendants’ Reply in Support of Defendants’ Motion to Dismiss, ECF No. 17 (“Repl.”).
In an exercise of its discretion, the Court has concluded that oral argument would not assist in
the resolution of the pending Motion.
2
Effective November 21, 2019, the threshold amounts required for EB-5 investments were
increased from $1,000,000 to $1,800,000 generally and from $500,000 to $900,000 for targeted
employment areas. See Final Rule, EB-5 Immigrant Investor Program Modernization, 84 Fed.
Reg. 35,750, 35,808 (Jul. 24, 2019). The Government notes that “[b]ecause Plaintiffs filed their
petitions before the requisite amounts were changed, they may still qualify under the old
amounts.” See Def.’s Mem. at 2 n.3.
2
EB-5 “employment-creation” requirement by creating jobs indirectly. Id. §§ 204.6(j)(4)(iii),
204.6(m)(7)(ii).
To receive an EB-5 visa, an applicant must first file with USCIS a petition for
classification as an EB-5 investor, using a “Form I-526.” See 8 C.F.R. § 204.6(a), (c). Once the
Form I-526 is approved by USCIS, the applicant must still wait for a visa to become available,
which, the D.C. Circuit has observed, “may take years,” Mirror Lake Village, LLC v. Wolf, 971
F.3d 373, 375 (D.C. Cir. 2020); see also Nohria v. Renaud, No. 20-cv-2086-BAH, 2021 WL
950511, at *2 (D.D.C. Mar. 14, 2021) (“Successful adjudication and approval of an I-526
petition makes a petitioner eligible for a visa, but does not automatically provide a
visa.”(emphasis added)).
Because the INA limits the total number of visas available each fiscal year and allots
percentages of visas by country and type of visa, 3 when the demand for visas is higher than the
supply, visa petitions are queued based on their “priority date”—typically the date the visa
petition was filed with USCIS. 8 U.S.C. § 1153(e); 8 C.F.R. § 204.6(d). A petitioner then
becomes eligible for a visa when the “priority date” is listed for the applicant’s country and visa
category in the State Department’s monthly Visa Bulletin. See Haider v. U.S. Deo’t of Homland
Sec., No. 20-3808 (CKK), 2021 WL 5630794, at *2 (D.D.C. Dec. 1, 2021). Finally, a State
Department consular officer conducts an interview with the applicant and ultimately approves or
denies the visa. Id.3
At the time of the complaint, the INA limited the total number of immigrant visas per year, the
total number of employment-based visas granted to individuals from a given country, and also
limits EB-5 visas to 7.1% of all employment-based visas granted. 8 U.S.C. § 1151 (a)(2), (b)(5)(A),
(d).
3
Since its inception, the Program had been repeatedly reauthorized by statute. U.S.
Immigration Fund-NY LLC v. Mayorkas, No. 21-0358 (CKK), 2022 WL 715239, at *2 (D.D.C.
Mar. 10, 2022). The Program, however, expired on July 21, 2022, and, for its part, DHS ceased
review of Form I-526 petitions. See id. at *3. On March 15, 2022, President Joseph R. Biden,
Jr. signed the Violence Against Women Act Reauthorization Act into law, reauthorizing the
Program and EB-5 visa applications tied to the program. See Violence Against Women Act
Reauthorization Act of 2022, Pub. L. 117-103, 136 Stat. 49, 1075 (2022). In particular, the law
forbids the denial of a Form I-526 petition on the basis of the prior lapse in the Program’s
statutory authorization. Id. at 1109.
Factual Background
Plaintiff, a citizen of the Russian Federation, submitted an I-526 petition for an EB-5 visa
to DHS on March 24, 2016. Compl., Ex. A at 2. DHS approved the petition on November 16,
2018 and referred it to NVC for further processing. Compl. ¶ 9; see also id. On May 7, 2019,
Plaintiff appeared for his interview with a consular officer at the United States Embassy,
Moscow (“Embassy”). Compl. ¶ 10. On June 17, 2019, the Embassy sent Plaintiff a letter
informing him that his application had been sent back to USCIS for reprocessing on account of
“indications that petition [sic] . . . contains inaccurate information.” Compl. Ex. B. Defendant
asserts, and Plaintiff does not contest, that USCIS found no issue with his I-526 petition,
reaffirming and conveying it to NVC on March 26, 2021. Opp. at 2. On April 23, 2021,
however, the Embassy moved all visa processing for Russian nationals to the United States
Embassy, Warsaw. State Department, Visas, available at https://ru.usembassy.gov/visas/ (last
visited March 23, 2022 10:35 AM). Accordingly, should a consular officer assigned to
Plaintiff’s visa application schedule an interview, Plaintiff would have to travel to Poland for the
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interview. Due to the Russian Federation’s ongoing invasion of Ukraine, Polish airspace
remains closed to Russian commercial flights and other methods of travel from Russia into
Western Europe remain clogged. See Antonia Mortensen and Ivana Kottasava, “Poland and the
Czech Republic will close airspace for Russian airlines,” CNN (Feb. 25, 2022 1:47 PM ET)
https://edition.cnn.com/europe/live-news/ukraine-russia-news-02-25-
22/h_688ae817addb5fe6847b975d717fe824; Lisa Abend, “There’s an Atmosphere of Fear. With
Flights Banned, Russians are Fleeing by Train to Europe,” Time (Mar. 16, 2022 8:51 AM ET)
https://time.com/6157438/russians-trains-europe-ukraine/. 4
II. LEGAL STANDARD
A. Motion to Dismiss for Lack of Jurisdiction
On a Rule 12(b)(1) motion, the plaintiff “bears the burden of establishing jurisdiction by
a preponderance of the evidence.” Bagherian, 442 F. Supp. 3d at 91–92 (D.D.C. 2020); see
also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In determining whether there is
jurisdiction, the court may “‘consider the complaint supplemented by undisputed facts evidenced
in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.’” Coal. For Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir.
2003) (citations omitted) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
1992). Courts must accept as true all factual allegations in the complaint and construe the
complaint liberally, granting the plaintiff the benefit of all inferences that can be drawn from the
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Travel restrictions for Russian nationals are widely reported, and the Court may “‘take judicial
notice of matters of common knowledge.’” Smith v. Ergo Solutions, LLC, 306 F.R.D. 57, 65
(D.D.C. 2015) (JDB) (quoting Ohio Bell Tel. Co. v. Pub. Utils. Comm’n of Ohio, 301 U.S. 292,
301 (1937)). To be clear, the Court takes judicial notice of these circumstances not as a matter of
fact finding, but rather to assess whether the complaint states a claim for which the Court may
grant relief.
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facts alleged. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1106 (D.C. Cir. 2005); Koutny
v. Martin, 530 F. Supp. 2d 84, 87 (D.D.C. 2007).
However, “the factual allegations in the complaint “will bear closer scrutiny in resolving
a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge
of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13–14 (D.D.C. 2001). A court need
not accept as true “‘a legal conclusion couched as a factual allegation’” or an inference
“‘unsupported by the facts set out in the complaint.’” Trudeau v. Fed. Trade Comm’n, 456 F.3d
178, 193 (D.C. Cir. 2006) (internal quotation marks omitted) (quoting Papasan v. Allain, 478
U.S. 265, 286 (1986)).
B. Motion to Dismiss for Failure to State a Claim
Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint on grounds that it
“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint
is not sufficient if it “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
557 (2007)). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. “In evaluating a motion to dismiss, the
Court must accept the factual allegations in the complaint as true and draw all reasonable
inferences in favor of plaintiff.” Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d
24, 27 (D.D.C. 2006).
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When considering a Rule 12(b)(6) motion, courts may consider “the facts alleged in the
complaint, documents attached as exhibits or incorporated by reference in the complaint” or
“documents upon which the plaintiff's complaint necessarily relies even if the document is
produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.”
Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal
quotation marks omitted) (quoting Gustave–Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C.
2002); Hinton v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009)). The court may also
consider documents in the public record of which the court may take judicial notice. Abhe &
Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007).
III. DISCUSSION
A. Mootness
Defendants first move to dismiss the complaint as against the DHS Defendants on
mootness grounds. Mot. at 5. Defendants argue that because Plaintiff’s visa application is
currently with NVC for review, there is no relief the Court could grant against DHS. As a
practical matter, Plaintiff conceded the point by failing to respond to it in his opposition. Kone v.
District of Columbia, 808 F. Supp. 2d 80, 83 (D.D.C. 2011). Even if he had not, where an
agency has accorded all relief it can in a visa case, claims against that agency are moot. Haider,
2021 WL 5630794, at *2. Accordingly, the Court shall dismiss Plaintiff’s complaint as against
Ur M. Jaddou, in her official capacity as Director, U.S. Citizenship and Immigration Services,
and Alissa Emmel, in her official capacity as Chief, Immigrant Investor Program Office.
B. Failure to State a Claim
The APA requires that agencies “within a reasonable time . . . shall proceed to conclude a
matter presented to it.” 5 U.S.C. § 555(b). If agencies fail to do so, courts may “compel agency
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action unlawfully withheld or unreasonably delayed.” Id. § 706(1) “There is ‘no per se rule as to
how long is too long’ to wait for agency action, but a reasonable time for agency action is
typically counted in weeks or months, not years.” In re Am. Rivers & Idaho Rivers United, 372
F.3d 413, 419 (D.C. Cir. 2004) (citation omitted) (quoting In re Int’l Chem. Workers Union, 958
F.2d 1144, 1149 (D.C. Cir. 1992)). The standard by which the Court reviews agency inaction
under the Mandamus Act, 28 U.S.C. § 1361, is the same standard applied to claims under §
706(1) of the APA. Jingjing v. Mayorkas, No. 20-cv-654 (CRC), 2021 WL 2115209, at *3
(D.D.C. May 25, 2021).
To determine whether Plaintiffs have sufficiently alleged that agency action has been
“unreasonably delayed,” the Court applies the factors laid out in Telecommunications Research
& Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”):
(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.
In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 549 (D.C. Cir. 1999) (quoting
TRAC, 750 F.2d at 80) (internal quotation marks omitted). Whether a delay is unreasonable
“cannot be decided in the abstract, by reference to some number of months or years beyond
8
which agency inaction is presumed to be unlawful, but will depend in large part . . . upon the
complexity of the task at hand, the significance (and permanence) of the outcome, and the
resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336
F.3d 1094, 1102 (D.C. Cir. 2003). Moreover, the D.C. Circuit has noted the “importance of
competing priorities in assessing the reasonableness of an administrative delay.” Id. (internal
citations and quotation marks omitted). It therefore has refused to grant relief where “a judicial
order putting [the petitioner] at the head of the queue [would] simply move[ ] all others back one
space and produce[ ] no net gain.” In re Barr Laboratories, Inc., 930 F.2d 72, 75 (D.C. Cir.
1991).
1. First and Second TRAC Factors
The D.C. Circuit has explained that the first TRAC factor—the time agencies take to
make decisions must be governed by a “rule of reason”— is the “most important,” although it is
generally reviewed with the second TRAC factor as well. In re Core Commc’ns, Inc., 531 F.3d
849, 855 (D.C. Cir. 2008). The inquiry centers on “whether the agency’s response time . . . is
governed by an identifiable rationale.” Ctr. for Sci. in the Pub. Interest v. FDA, 74 F. Supp. 3d
295, 300 (D.D.C. 2014).
In general, courts of this jurisdiction have regularly found that the Government applies a
“rule of reason” to review of I-526 petitions by EB-5 applicants––USCIS, for example,
adjudicates applications in the order they were filed. See, e.g., Palakuru v. Renaud, 521 F. Supp.
3d 46, 50 (D.D.C. 2021) (TNM). In most visa cases seeking to expedite review, therefore, the
question is whether that general rule of review has resulted in an unreasonable delay. E.g.,
Xiaobing v. Blinken, 544 F. Supp. 3d 1, 11-12 (D.D.C. 2021) (TJK) (holding that effects of
COVID-19 made delay in visa adjudication reasonable). In those cases, delays of even three
years may be reasonable. See, e.g., Xu v. Cissna, 434 F. Supp. 3d 43, 55 (S.D.N.Y. 2020); Skalka
9
v. Kelly, 246 F. Supp. 3d 147, 153-54 (D.D.C. 2017) (RJL) (two-year delay “does not typically
require judicial intervention”).
Plaintiff’s claim is slightly different. Unlike visa cases where the applicable agency has
yet to act, the State Department has acted, and acted in such a way as to delay the ultimate
adjudication of Plaintiff’s visa application. Plaintiff, therefore, alleges arbitrary delay not on the
basis of the lack of or improper agency policy, but on the basis of that policy having not been
applied to his application. The question, therefore, turns on the propriety, i.e., reasonableness, of
the alleged mistake on the part of the consular officer who sent Plaintiff’s visa application back
to USCIS for further processing. In support of this argument, Plaintiff cites Wang v. Chertoff,
676 F. Supp. 2d 1086 (D. Idaho 2009). That case sensibly holds that dismissal of an
unreasonable-delay claim was improper where bureaucratic error on USCIS’ part caused
excessive administrative delay. Id. at 1098-99.
The allegedly improper agency action at issue here, however, was not made by USCIS,
but rather by a State Department consular officer. This fact implicates the “doctrine of consular
nonreviewability,” which the parties have not addressed. “The doctrine of consular
nonreviewability recognizes that Congress has empowered consular officers with the exclusive
authority to review a proper application for a visa when made overseas.” Thatikonda v. U.S.
Dep’t of Homeland Sec., 2022 WL 425013, at *5 (D.D.C. Feb. 11, 2022) (citing 8 U.S.C. §§
1104(a); 1201(a), (g)). Accordingly, in practice, “decision[s] to issue or withhold a visa [are] not
subject to judicial review, at least unless Congress says otherwise.” Joorabi v. Pompeo, 464 F.
Supp. 93, 100 (D.D.C. 2020) (quoting Saavedra Bruno, 197 F.3d at 1159).
Again, the decision here is not quite a decision to “issue or withhold,” definitively, but to
send Plaintiff’s application back to USCIS for further processing. Courts of this jurisdiction
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have held that the doctrine does not apply where “plaintiffs ‘do not seek judicial review of a
consular decision, but instead seek a final decision on their applications.”’ Didban v. Pompeo,
435 F. Supp. 3d 168, 174 (D.D.C. 2020) quoting Afghan & Iraqi Allies Under Serious Threat
Because of Their Faithful Serv. to the United States v. Pompeo, No. 18-CV-01388-TSC, 2019
WL 367841, at *10 (D.D.C. Jan. 30, 2019)). Upon the Court’s review, however, no court has yet
to consider whether the doctrine applies to a consular officer’s referral of an application to
USCIS for re-review.
Because this first TRAC factor may well be dispositive in this case, and because the
parties have yet to address the doctrine of consular nonreviewability, the Court will order
supplemental briefing on the question and hold the rest of the Motion in abeyance. Nevertheless,
in an effort to guide that briefing, the Court shall offer a tentative discussion of the rest of the
TRAC factors, subject to ultimate resolution after reviewing the parties’ supplemental briefing.
2. Fourth TRAC Factor
The fourth TRAC factor requires an assessment of “the effect of expediting delayed
action on agency activities of a higher or competing priority.” TRAC, 750 F.2d at 80. In other
words, the Court considers whether expediting Plaintiff’s application would “harm other agency
activities of equal or greater priority.” Nibber, 2020 WL 7360215, at *7. The D.C. Circuit has
emphasized the importance of considering “competing priorities” in assessing the
“reasonableness of an administrative delay”—even “refus[ing] to grant relief when all the other
factors considered in TRAC favored it, where a judicial order putting the petitioner at the head of
the queue [would] simply move[ ] all others back one space and produce[ ] no net gain.”
Mashpee, 336 F.3d at 1100 (quoting In re Barr, 930 F.2d at 75); see also Ghadami, 2020 WL
1308376, at *9 (finding that “expediting review in [the plaintiff’s] case would merely direct
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government resources from the adjudication of other waiver applications”). Any such order
interferes with the agency’s “unique—and authoritative—position to view its projects as a
whole, estimate the prospects for each, and allocate its resources in the optimal way.” In re
Barr, 930 F.2d at 76.
Again, this case presents somewhat different circumstances. As this Court explained in
Desai v. USCIS, No. 20-1005 (CKK), 2021 WL 1110737 (D.D.C. Mar. 22, 2021), the fourth
TRAC factor weighs in favor of the defendants where an order directing the agency “to process
Plaintiff’s application would still put him ahead in the queue of those similarly situated.” Id. at
*7 (emphasis original); see also Palakuru, 521 F. Supp. 3d at 53 (“Granting [Plaintiff] relief here
would advance his petition in front of others similarly situated––with respect to the availability
of visas and investment in a regional center––who filed their petitions earlier.”). Here, the
universe of “similarly situated” applicants is substantially smaller. Plaintiff’s class, properly
understood, is that of Russian visa applicants whose petitions have been returned to USCIS after
a consular interview. The Court is cognizant of Plaintiff’s uncertain ability to travel to Warsaw
for a consular interview––whenever one may be scheduled––while travel beyond Russia is
severely restricted. Nevertheless, the circumstances surrounding the Russo-Ukrainian War and
the ongoing COVID-19 pandemic require the Court to give “deference to the State Department’s
priority-setting and prioritization of ‘mission critical’ functions.” See Tate v. Pompeo, 513 F.
Supp. 3d 132, 150 (D.D.C. 2021) (Howell, C.J.). This factor therefore weighs slightly in favor
of the Government.
3. Third and Fifth TRAC Factors
The third and fifth factors are often considered together, and require the Court to consider
Plaintiffs’ interests, health, and welfare. Ghadami, 2020 WL 1308376, at *9. In general,
12
concerns like separation from family or inability to supervise an economic investment are
insufficient to weigh in favor of the plaintiff. See, e.g., Desai, 2021 WL 110737 at *7 (economic
interests); Thakker v. Renaud, No. 20-1133 (CKK), 2021 WL 1092269, at *7-8 (D.D.C. Mar. 21,
2021) (family separation). In his Supplemental Memorandum, Plaintiff paints a more
compelling picture, alleging that, by virtue of seeking an EB-5 visa while Russia’s invasion of
Ukraine is ongoing, “he now finds himself in grave danger as a ‘foreign agent’ who has invested
money and sought to acquire permanent resident status in a country that has [been characterized
by the Russian government as] [] ‘firmly ensconced as Russia’s top enemy.’” Supp. Br. at 2.
Such an allegation, however, is broad and fairly unsubstantiated at present time, not to mention
absent from the operative complaint. Therefore, the Court concludes that, based on the
information in the pleadings and that which the Court may judicially notice, Plaintiff falls short
of meeting the third and fifth TRAC factors of showing that human health and welfare are at
stake or that there are other interests prejudiced by the agency’s delay. See Nohria, 2021 WL
950511, at *6 n.5.
4. Sixth TRAC Factor
The sixth TRAC factor notes that the “Court need not find any impropriety lurking behind
agency lassitude in order to hold the agency action is unreasonably delayed.” Ghadami, 2020
WL 1308376, at *9. Plaintiff admits that he “does not possess sufficient information to allege
bad faith,” Opp. at 6, and so this factor is not an issue in this case.
As explained above, the Court’s discussion of the TRAC factors is, at present, tentative,
and the Court awaits further briefing from the parties.
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IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT IN PART AND HOLIDNG IN
ABEYANCE IN PART Defendants’ [15] Motion to Dismiss and DISMISS Plaintiff’s [1]
Complaint as against Defendants Ur M. Jaddou, in her official capacity as Director, U.S.
Citizenship and Immigration Services, and Alissa Emmel, in her official capacity as Chief,
Immigrant Investor Program Office. An appropriate order accompanies this Memorandum
Opinion.
Dated: March 30, 2022 /S/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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