By Matt Galati
It should not have to be like this.
Regional centers and EB-5 investors are charged the highest fees amongst all participants in the U.S. immigration system. Thanks to the poorly thought out “EB-5 Modernization Rule,” new participants to the program are at a historic low compared to recent years. Yet, processing times remain unconscionable, currently pegged at the time of this writing (late March 2021) as follows:
Late March 2021 processing time range
These processing times make little sense and look even worse in context. The agency’s production in fiscal year 2019 was terribly disappointing, with just a fraction of adjudications of the year before. Combining these with the high fees, it is hardly surprising then that EB-5 stakeholders are turning to the courts to try to force USCIS to finally act. USCIS production of late has lagged compared to historical trends. It is hardly surprising then that mandamus actions are growing quite popular.
Let’s explore, in general terms, what a mandamus lawsuit is and what litigants can generally expect. Naturally, however, each affected EB-5 stakeholder and each lawsuit will have different outcomes, experiences, and circumstances. Nothing substitutes an attorney consultation, but here you will find some general concepts and government defense strategies from the last few years.
WHAT IS A MANDAMUS LAWSUIT?
Mandamus is a Latin word meaning “we command.” As explained by Law.com, it is essentially a writ whereby a court “orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.” Jurisdictionally, these kinds of lawsuits can take one of two (or both) forms. Suits can be lodged alleging a violation of the federal Administrative Procedures Act which requires agencies to make decisions within a reasonable time, or under the Mandamus Act ( 28 U.S.C. 1361), which vests federal district courts with jurisdiction “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
In the EB-5 context, a mandamus lawsuit seeks to have a judge to order USCIS / the IPO to decide a particular petition or application. Note that the suit does not contemplate the actual merits of the filing. That is, the mandamus court will not be asked to decide whether an investor’s source of funds was lawful or whether the project indeed qualifies for exemplar status. Accordingly, the issue before the judge is whether or not she/he should force USCIS’ hand. A successful mandamus suit will simply bring about the adjudication that has been delayed. Cases with merit should lead to approvals. Cases without merit should lead to denials. The filing of a mandamus, at least on its fact, should have no effect.
WHAT ARE THE STEPS AND HOW LONG DOES A MANDAMUS LAWSUIT TAKE?
Like most lawsuits, a mandamus action begins with the filing of a complaint whereby the plaintiff(s) allege the operative facts surrounding the delay, put forth their cause(s) of action, and state their claims that the case filed in the proper court against the proper defendants. Different lawyers will take different approaches to their complaints including whether or not to sue specific DHS/USCIS defendants such as Secretary Mayorkas, or the interim heads of USCIS and the IPO. Some lawyers may have favorite jurisdictions of where to file, although those choices may be limited based on the plaintiffs’ residences.
Once a complaint is accepted by a civil clerk’s office, the plaintiff’s attorney must then effectuate service of process. Although this is often dramatized in movies against private parties with process servers surprising defendants from behind bushes or using deception to lure in an unwitting litigant, against the government service is usually effectuated by U.S. mail. Unlike suits against private parties, the U.S. government normally has 60 days to respond to the complaint, unless the plaintiffs are seeking emergency relief.
HOW WILL THE GOVERNMENT REACT?
The 60 days following service may prove to be the most critical for the plaintiffs in a mandamus action. During this time, the complaint is reviewed by the government’s attorneys, who normally work in the local U.S. Department of Justice Attorney’s Office having jurisdiction over the suit. That individual must then make a formal appearance in the case against the plaintiff(s).
During this time, the Assistant United States Attorney (AUSAs) will consult with its client, USCIS, to determine the defendants’ strategy in the suit. Many times – but certainly not every time or perhaps not even most times – USCIS will decide to adjudicate the case rather than pursue a vigorous defense in court. It may therefore be possible to negotiate timeframes for adjudication without motions practice, discovery, or trial if both parties are in agreement that USCIS can adjudicate the case. Indeed, while adversarial, litigation against the government need not necessarily be hostile.
Most clients are concerned about retaliation. Specifically, they raise concerns that the filing of the complaint will provoke a summary denial of the petition, or perhaps revocation of an underlying visa such as an H-1B. While such retaliation may theoretically be possible, it is unlikely to occur and virtually no attorneys have experienced it despite representing over hundreds of clients in EB-5 related mandamus. Spuriously denying a case could provoke sanctions against government officials, including recoupment of attorney’s fees and costs.
That being said, mandamus is not premium processing. Plaintiffs are not guaranteed adjudications within certain timeframes by simply filing suit. AUSAs need not be aligned with plaintiffs and will often fully defend mandamus actions.
While AUSAs could theoretically answer the allegations of a complaint on their merits, such answers are (at least now) extremely rare in immigration mandamus actions. What is far more common is for the AUSA to file a motion to get the case out of the court. These motions can be procedural (for example, a motion to transfer a case to a different venue or to sever the plaintiffs) or dispositive.
Dispositive motions usually take the form of being filed under Federal Rule 12(b)(6), which seeks dismissal for an alleged failure of the complaint to state a claim on which relief can be granted. In other words, the government argues that even if the court were to assume every fact alleged in the complaint is 100% correct, and all the inferences from those facts can be drawn in favor of the plaintiffs, the court still cannot order the petitions to be adjudicated because it is legally prohibited from doing so.
Some attorneys try to avoid these motions at all costs. Others prefer a more intentional approach to obtain relief for the clients and move the law forward on behalf of those waiting amidst unconscionable processing times. Extensive briefing on these motions is required, usually with a response by the plaintiffs and a reply by the government. Additional motions may also be filed if they have merit.
HOW WILL THE COURT REACT?
Eventually, the judge will rule on the motion. There is no set timeframe for this process and different courts and different judges will move at different speeds. It is important for attorneys to research the relevant case law in the jurisdiction where the case will be filed, as some courts are more friendly to immigration mandamus cases than others. Complicating this, however, is that some courts such as the District of Columbia (D.D.C.) have conflicting case law. The outcome of such a motion could simply be determined by which judge is assigned that particular case.
If a judge rules in favor of the government on a Rule 12(b)(6) motion, the case is dismissed from the court, usually without prejudice to the plaintiffs filing a new action. However, this decision can be appealed to the Circuit Courts if the plaintiffs so choose. An appeal, or threat of an appeal, may provide additional negotiation leverage to settle a case.
If a judge rules against the government, then the case must continue and the government must answer the complaint. The parties may then continue with discovery, which may involve the taking of USCIS officials’ depositions. Prevailing against the government in a dispositive motion poses excellent opportunities for settlement. For example, in the seminal I-526 mandamus case Gutta v. Renaud, 2021 WL 533757, Case No. 20-cv-06579-DMR (N.D. Cal. Feb. 12, 2021), the judge denied the government’s motion to dismiss in February 2021. Shortly thereafter, all parties were able to reach a settlement agreement which guaranteed at least initial adjudication on the 22 plaintiffs’ cases before the EB-5 program is scheduled to sunset on June 30, 2021.
MANDAMUS IS NOT A ONE SIZE FITS ALL OPTION
Many EB-5 stakeholders, rightfully, consider mandamus to be a last resort. It can involve expensive legal fees. It certainly is not suitable for every case and some may be able to file in more friendly jurisdictions than others. Moreover, there are separate legal frameworks for filing a mandamus on an I-526, I-924, and I-829. There is also a much larger body of case law regarding mandamus on interim benefits such as work and travel authorization, as well as adjustment of status.
Close consultation with an experienced attorney, capable of putting together a cogent strategy, is an absolute must.