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Elgin Assisted Living Eb-5, LLC, et al v. Alejandro Mayorkas

October 16, 2012

ELGIN ASSISTED LIVING EB-5, LLC, ET AL., PLAINTIFFS,
v.
ALEJANDRO MAYORKAS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Sharon Johnson Coleman

Memorandum Opinion and Order

On April 20, 2012, plaintiffs anonymously filed a four-count complaint for declaratory judgment against defendants, various government officials including officials of the U.S. Citizenship and Immigration Service (collectively "defendants" or "USCIS"). On June 29, 2012, USCIS moved to dismiss for lack of subject matter jurisdiction. For the reasons stated below, this Court grants defendants' motion and dismisses the complaint.

Background

Plaintiffs are Iranian nationals who each filed an Alien Entrepreneur Form I-526 ("I-526"). Form I-526 is the first step taken by an immigrant investor to obtain a visa, in this case, the EB-5 visa,*fn1 that authorizes the foreign national admission in the United States. If an I-526 is approved, the immigrant investor must then file a DS-230, or Application for Immigrant Visa and Alien Registration, with the U.S. Department of State to obtain an EB-5 visa. Among the I-526's requirements is evidence that the applicant obtained the capital involved through lawful means. The procedure for granting immigrant status is authorized by 8 U.S.C. §§ 1154(a)(1)(H), 1154(b), and 1153(b)(5), and detailed in Title 8, Subchapter B of the Code of Federal

Regulations.

According to the plaintiffs, they desire to pool the funds of twenty-four immigrant investors to lend to a limited liability company ("LLC"). The LLC obtained licenses from the Department of Treasury, Office of Foreign Assets Control ("OFAC"), as required by the Iranian Transaction Regulations ("ITR"), 31 C.F.R. § 560. Plaintiffs filed their I-526s with USCIS on September 2, 2011, with an attached copy of the LLC's OFAC license. Pls.' Compl. ¶¶ 45, 46. USCIS issued Requests for Evidence ("RFEs") to the plaintiffs in early February and March 2012, requiring submission of the requested information by April or May 2012. Id. ¶¶ 47, 58, 69, 80, 91. Generally, the USCIS' concern with plaintiffs' I-526s involves the use of lawful capital in establishing eligibility for an EB-5 visa as required by 8 U.S.C. § 204.6. USCIS issued two sets of RFEs to the individual plaintiffs. Plaintiffs requested information from OFAC in order to respond to the first RFE. USCIS issued a second set of RFEs on May 4, 2012, this time with a response deadline of July 26, 2012. USCIS granted plaintiffs an extension to October 25, 2012, to respond to the RFEs because OFAC had not yet responded to plaintiffs' inquiry.

Legal Standard

When ruling on a Rule 12(b)(1) motion to dismiss, district courts must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff. Iddir v. INS, 301 F.3d 492, 496 (7th Cir. 1993). A court may also properly consider material outside of the pleadings. Afsharzadehyadzi v. Perryman, 214 F. Supp. 2d 884, 886 (7th Cir. 2002). A party seeking declaratory relief must show: (1) an actual controversy and, (2) a matter within federal court subject matter jurisdiction. Calderon v. Ashmus, 523 U.S. 740, 745 (1998).

Discussion

Defendants move to dismiss the complaint arguing that there is no final agency action to support subject matter jurisdiction. The Declaratory Judgment Act does not extend jurisdiction beyond what is authorized by Congress, it merely enlarges the range of remedies available in federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671--72 (1950); GNB Battery Techs., Inc. v. Gould, Inc., 65 F.3d 615, 619 (7th Cir. 1995). Where, as here, an agency action is not specifically made reviewable by a statute, the Administrative Procedure Act ("APA") allows judicial review of a "final agency action" for which there is no other adequate remedy. 5 U.S.C. § 704.

Two conditions must be satisfied for an agency action to be considered "final." Home Builders Ass'n of Greater Chi. v. U.S. Army Corps of Engr's, 335 F.3d 607, 614 (7th Cir. 2003). First, the action must mark the "consummation" of the agency's decision-making process, and must not be of a merely tentative or interlocutory nature. Id. Second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow." Id. In answering this second question, the Seventh Circuit uses the direct and immediate effects test first pronounced in Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967), under which the court considers whether the action's impact is sufficiently direct and immediate on the plaintiffs and has direct effect on day-to-day business. W. Ill. Home Health Care, Inc. v. Herman, 150 F.3d 659, 662 (7th Cir. 1998) (citing Abbott Labs., 387 U.S. at 151-52). "[T]he core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties." Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 797 (1992)).

Defendants argue that neither prong of the "finality" test is met in this case. Plaintiffs assert that because they will likely be unable to respond to the RFEs on time, this Court should find the issuance of the RFEs to be the last step in regards to their I-526s and the consummation of the decision-making process.

Before finding that judicial review is available, the court must also confirm that such review does not fall within either of these two exceptions: (1) where a statute expressly precludes judicial review; or (2) where agency action is committed to agency discretion by law.

5 U.S.C. § 701. While there is no statutory provision specifically precluding review of the issuing of RFEs in this matter, including the general jurisdiction-stripping provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(a)(2)(B)(ii), the RFEs may be precluded as agency action that is committed to USCIS discretion by law. "The exception has been found to apply to situations in which a statute's delegation of decision-making authority to an agency is so complete 'that a court would have no meaningful standard against which to judge the agency's exercise of discretion.'" Home Builders, 335 F.3d at 615. Determining whether a meaningful standard for review is available requires consideration of four areas: the statutory language, the statutory ...


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