Mukkavilli v. Jaddou ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SRINIVASA SAI TEZA
MUKKAVILLI,
Plaintiff,
Case No. 22-cv-2289 (TNM)
v.
UR M. JADDOU, Director, U.S. Citizenship and
Immigration Services, et al.,
Defendants.
MEMORANDUM OPINION
Indian national Srinivasa Sai Teza Mukkavilli invested nearly one million dollars in an
equestrian center in rural America. He did so for a shot at lawful permanent residency through
the “investor visa” program. But he has not received a visa. So Mukkavilli sued the Director of
the U.S. Citizenship and Immigration Services (USCIS) and the Secretary of State under the
Administrative Procedure Act. He argues that USCIS unlawfully withheld and unreasonably
delayed his investor visa and petition for permanent residency. Mukkavilli also argues that
USCIS’s decision to stop expediting various visa petitions was arbitrary and capricious. Among
other things, he seeks an order compelling the agency to adjudicate his visa petition within two
weeks and vacatur of certain final agency actions. �e Government moves to dismiss.
�e Court will grant that motion. It lacks jurisdiction over Mukkavilli’s claims that the
agency is unlawfully withholding a rural visa number (Count I), adjudication of his permanent
residency petition (Count II), and an investor visa number (Count III). And Mukkavilli fails to
1
state claims for the rest: USCIS’s denial of an expedite is committed to agency discretion by law
(Count IV) and it has not unreasonably delayed adjudication of his investor visa petition (Count
V).
I.
A.
First, some background on the investor visa program and how those visa petitions are
processed. �e Immigration and Nationality Act provides visas to immigrants who help create
American jobs. See 8 U.S.C. § 1153(b)(5). Foreign investors can obtain visas several ways.
One is to contribute to a USCIS-designated “regional center”—an entity that creates jobs
indirectly through economic growth. 8 U.S.C. § 1153(b)(5)(E).
Congress established the regional center program as a five-year pilot. See Departments of
State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations Act of 1992,
Pub. L. No. 102-395, § 610(a) (Oct. 6, 1992) (previously codified at 8 U.S.C. § 1153 note). It set
aside 300 visas a year for foreign investors who met certain criteria. See id. After its initial
sunset, Congress periodically reauthorized the program until 2021. See Da Costa v. Immigr. Inv.
Program Off., No. 22-cv-1576, 2022 WL 17173186, at *2 (D.D.C. Nov. 16, 2022) (summarizing
this history). But in June 2021, the program lapsed for nine months. See id.�en, in March 2022, Congress revamped it. See EB-5 Reform and Integrity Act of 2022
(“Reform Act”), Pub. L. 117-103, 136 Stat. 1070 (2022) (codified at 8 U.S.C. § 1153(b)(5)).
Apparently, some regional centers were fraudulent and raised national security concerns. See,
e.g., Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 378 (D.C. Cir. 2020) (Henderson, J.,
concurring) (noting these problems); see also News Release, Grassley, Leahy Introduce New EB-
5 Investor Visa Integrity Reforms (Mar. 18, 2021), https://perma.cc/WB34-F743. So Congress
2
reformed the program, reauthorized it through 2027, and changed parts of the investor visa
process. See 8 U.S.C. § 1153(b)(5)(E).
One change is particularly important here. �e Reform Act reserves percentages of visas
for three types of foreign investors: twenty percent for investors in rural areas, ten percent for
investors in high unemployment areas, and two percent for investors in infrastructure projects.
See id. § 1153(b)(5)(B)(i). In other words, the Act made it easier for investors who qualify for
one of these categories to get a visa.
B.
After making a qualifying investment, a foreign national may petition USCIS for
classification as an immigrant investor using an I-526 petition. See 8 C.F.R. § 204.6. Such
petitions must include evidence that the investor has put “the required amount of capital at risk
for the purpose of generating a return,” supporting documentation, and fees. Id. § 204.6(a), (j).
�ose petitions are one of the first steps to becoming a lawful permanent resident. See Palakuru
v. Renaud, 521 F. Supp. 3d 46, 48 (D.D.C. 2021).
Under the Reform Act, immigrant investors may file Form I-485 to obtain a green card at
the same time as Form I-526. See Pub. L. 117-103, § 102(d), 136 Stat. 1070, 1075 (2022)
(amending 8 U.S.C. § 1255); see also Green Card for Immigrant Investors, USCIS,
https://perma.cc/67VK-6ZEW. If USCIS approves these petitions, the immigrant is promoted to
“conditional” lawful permanent resident status for two years. See 8 C.F.R. § 216.2(a); see also
Wang v. USCIS, 375 F. Supp. 3d 22, 26 (D.D.C. 2019). After that waiting period, the investor
may petition for those conditions to be removed using yet another form if he has satisfied the
investment and job-creation requirements. See 8 C.F.R. § 216.6.
But properly filing the investor visa petition is only half the battle. �ere must also be a
3
visa available for the type of immigrant applying. Often, the odds are slim. A limited number of
employment-based visas are available each year, see 8 U.S.C. § 1151(d), and the same is true for
investor visas, see id. § 1153(b)(5)(A). Complicating matters further, each country can claim
only seven percent of the available visas, regardless of demand. See id. § 1152(a)(2). In sum,
the number of investor visas is limited, and even if one is available, an immigrant may be out of
luck if too many of his countrymen have already claimed visas.
When demand exceeds supply for investor visas or for those from a given country,
applicants are put on a waiting list. See id. § 1153(e)(3). Each applicant in the queue is assigned
a “priority date”—typically the day on which he filed his petition. 22 C.F.R. § 42.54. To help
applicants understand whether a visa may be available for those who filed when they did, the
State Department publishes a chart each month listing generic cut-off dates for categories of
petitions. �e January 2023 chart 1 reads:
Employment-based CHINA INDIA MEXICO PHILIPPINES
5th Unreserved
(including C5, T5, I5, 22MAR15 08NOV19 C C
R5)
5th Set Aside:
C C C C
Rural (20%)
5th Set Aside: High
C C C C
Unemployment (10%)
5th Set Aside:
C C C C
Infrastructure (2%)
�e bottom three rows correspond to the Reform Act’s new categories for rural, high
unemployment, and infrastructure investors—visas are “reserved” for these investors. As the
January 2023 chart indicates, visas remain “current” (marked with a C)—or available—under all
1
�is chart is lightly edited to remove irrelevant columns and rows. See Visa Bulletin for
January 2023, Dep’t of State, https://perma.cc/Z94U-X2GT.
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three categories. �e “5th Unreserved” category corresponds to all other investors. And it has
cut-off dates for Chinese and Indian investors, indicating that investor visas have run out for
those countries, at least for now. See 8 U.S.C. § 1153(b)(5)(B)(i)(II) (reserved visas not used
within two fiscal years will be made available to those in the unreserved category).
An investor may access this chart to see whether a visa may be available for immigrants
like him. First, the investor must figure out whether he is in the reserved or unreserved category.
Second, he must compare his priority date with the one listed in the chart. If his priority date
falls before the cut-off date in the applicable box, visas remain available. But if his priority date
falls after the cut-off date, the visa supply has run out. If there is a “C” in the applicable box,
visas remain available for immigrants like him regardless of his priority date.
For example, if an Indian national invested the required amount in a regional center and
successfully petitioned for an investor visa back in 2017, he would fall in the “unreserved”
category, which has a cut-off date of November 8, 2019. According to the January 2023 chart,
visas are available for investors like him. But if an Indian national invested after November 8,
2019, and does not qualify for one of the reserved categories, he is out of luck.
Because USCIS processes petitions daily and updates its bulletin monthly, sometimes the
cut-off date moves backward or “retrogresses.” See Adjudicative Review, USCIS Policy Manual,
Vol. 7, Part A, Ch. 6, USCIS, https://perma.cc/CG9A-QTFR. As USCIS explains, “[s]ometimes
[an immigrant visa number] that is current one month will not be current the next month, or the
cut-off date will move backwards to an earlier date . . . when the annual limit for a category or
country has been used up or is expected to be used up soon.” Id. So unlike many other waiting
lists, having waited longer does not necessarily mean one is any closer to a visa.
USCIS’s approach to processing investor visas has also changed over time. Historically,
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it took a “first-in, first-out” approach—adjudicating investor visa petitions based on date filed.
See USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory, USCIS, (Jan. 29, 2020),
https://perma.cc/A76G-J3GK (“Processing Announcement”). For example, a Chinese investor’s
petition filed on July 1 would be adjudicated before a Mexican investor’s petition filed days later.
But this system made little sense if all the visas for China were already taken. So to
increase efficiency, USCIS shifted to an “availability approach.” Id. Now, it prioritizes petitions
from countries “where visas are immediately available, or soon available” based on those
country limits it publishes monthly. Id. �us, no matter who filed first, if visas are available for
Mexico but not for China, the Mexican investor gets priority. USCIS also considers whether it
has already reviewed the underlying project. See Questions and Answers: EB-5 Immigrant
Investor Program Visa Availability Approach, USCIS, (Sept. 17, 2020), https://perma.cc/UTZ9-
GGRK (“Questions and Answers”). USCIS implemented this processing change in March 2020
and applied it to all pending investor visa petitions. See Processing Announcement.
Recall that the program authorizing visas for investors in regional centers lapsed for
about nine months while Congress reworked it. See supra Part I.A. During this time, visa
processing was placed on hold. See USCIS, EB-5 Reform & Integrity Act of 2022 Listening
Session at 4, https://perma.cc/G29S-QMPP. After the Reform Act passed, USCIS resumed
processing. It informed investors that it would process pre-Act petitions based on the law and
regulations in effect when they were filed. See EB-5 What’s New, Alerts, https://perma.cc/ST77-
N7B6 (“EB-5 Alerts”); see also Eligibility Requirements, USCIS Policy Manual, USCIS, Vol. 6,
Part G, Ch. 2, https://perma.cc/7BWV-837U (“Eligibility Requirements”). Relevant here, pre-
Reform Act applicants are not eligible for the new visa set-asides, one of which reserves twenty
percent of visas for investors in rural areas. See 8 U.S.C. § 1153(b)(5)(B)(i). �is matters
6
because more visas are “current” (available) for investors in the Act’s new set-asides. See, e.g.,
Visa Bulletin Chart.
C.
Mukkavilli is an Indian national who invested in a USCIS-approved regional center. See
Am. Compl. (“Compl.”) ¶¶ 1, 100, 122, ECF No. 11. He claims he chose one in Appalachia
called Tryon International Equestrian Center because its website boasted that USCIS was
expediting its investors’ visas. See id. ¶¶ 100–03. �e web address Mukkavilli provides, see
Compl. ¶ 82, is now defunct. But the original website pledged “priority processing speeds” for
those who invest in its regional center and cites promising statistics. See EB-5 Fast,
https://perma.cc/4S22-F5KH (cited in Da Costa, 2022 WL 17173186, at *9). But it also includes
several disclaimers in fine print. See id. For example, the website notes that past processing
times are not indicative of future results, and that investment in the center “involves a high
degree of risk of the loss of the investment[.]” Id.Based on the website’s advertising, and despite the disclaimers, Mukkavilli invested
nearly a million dollars in the regional center and applied for an investor visa in September 2020.
See id. ¶¶ 105, 122; see also Ex. A, ECF No. 1-1. At that time, investor visas were “current”
(available) for Indian nationals. See Compl. ¶ 107; see also Visa Bulletin for September 2022,
Dep’t of State, https://perma.cc/KA2Z-J2LK.
Months later, Mukkavilli contacted USCIS to ask about the expedite Tryon advertised.
See Compl. ¶ 108. USCIS responded that it had initially granted some expedites connected to
the Center because of the impending 2018 World Equestrian Games. See Ex. C, ECF No. 1-3
(“USCIS Letter”). But any additional expedites given after the Games were mistakes. See id.;
see also Compl. ¶ 109. So USCIS rejected Mukkavilli’s request for an expedite simply because
7
he is affiliated with the Tryon Center, but it informed him that he could apply for an expedite
under other criteria. See USCIS Letter; see also Def.’s Mot. to Dismiss (MTD) at 21, ECF No.
14 (citing Requests to Expedite Applications or Petitions, USCIS Policy Manual, Vol. 1, Part A,
Ch. 5, https://perma.cc/W4BW-B5ZE).
In May 2022, while his investor visa petition was pending, Mukkavilli filed a Form I-485
to adjust his status to lawful permanent resident. See Compl. ¶ 111. At that time, the Visa
Bulletin listed both the “reserved” and “unreserved” categories for Indian nationals as current—
meaning visas were available. See Visa Bulletin for May 2022, U.S. Dep’t of State,
https://perma.cc/MVL8-FZCC. But between September and October 2022, USCIS’s practice of
reserving rural visas under the Reform Act’s new set-asides changed the number of visas
available in the “unreserved” category. See Compl. ¶ 114.
�us, Mukkavilli’s visa petition was no longer current as of the October 2022 visa
bulletin. See id. �e October 2022 visa bulletin informed Indian nationals that if they had filed
before November 8, 2019, no visas were available to them. Compare Visa Bulletin for
September 2022, Dep’t of State, https://perma.cc/KA2Z-J2LK, with Visa Bulletin for October
2022, Dep’t of State, https://perma.cc/JTW4-G9W8. Because no visa is available for
Mukkavilli—an Indian national in the “unreserved” category—USCIS is not acting on his
petitions under its “availability approach” to processing. See Compl. ¶ 129. While Mukkavilli
refers to this as an “adjudication hold policy,” see, e.g., id. ¶ 138, it is merely what happens to
petitions when visas run out.
So Mukkavilli sued. �e core of his suit is that USCIS is unreasonably delaying a
decision on his investor visa petition. See id. ¶¶ 159–274 (Count V). He also argues that USCIS
is unlawfully withholding (1) a rural visa for him under the Reform Act’s new set-asides, see id.8
¶¶ 125–31 (Count I), (2) final adjudication of his adjustment of status petition, see id. ¶¶ 133–41
(Count II), and (3) adjudication of his investor visa petition if his adjustment of status petition is
approved (Count III), see id. ¶¶ 142–49. Mukkavilli also contends that USCIS arbitrarily and
capriciously cancelled its prior decision to expedite visas—including his own—for investors in
Tryon. See id. ¶¶ 151–56. Finally, Mukkavilli seeks fees under the Equal Access to Justice Act.
See id. ¶¶ 275–78.
�e Government moves to dismiss for lack of subject matter jurisdiction and for failure to
state a claim. �e Court held a motions hearing, see Tr. of Mot. Hr’g (Hr’g Tr.), ECF No. 18,
after which it ordered supplemental briefing, see Order, ECF No. 17; Gov’t Suppl. Mem., ECF
No. 19; Pl.’s Suppl. Mem., ECF No. 20. �e Government’s motion to dismiss is ripe.
II.
Under Rule 12(b)(1), the Court presumes that a claim “lies outside [its] limited
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Plaintiffs
bear the burden of overcoming that presumption by a preponderance of the evidence. See, e.g.,
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Because subject matter jurisdiction
implicates this Court’s power to hear a claim, the Court gives the allegations “closer scrutiny”
than would be required for a 12(b)(6) motion for failure to state a claim. Nepal v. Dep’t of State,
602 F. Supp. 3d 115, 123 (D.D.C. 2022). And the Court “may consider materials outside the
pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction[.]” Jerome
Stevens Pharma., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
To defeat a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). �e plaintiff
must plead “factual content that allows the court to draw the reasonable inference that the
9
defendant is liable for the misconduct alleged.” Id. While the complaint need not contain
detailed factual allegations, it must provide more than a “formulaic recitation of the elements of a
cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Courts “treat the complaint’s factual allegations as true and . . . grant the plaintiff the
benefit of all inferences that can be derived from the facts alleged.” L. Xia v. Tillerson, 865 F.3d
643, 649 (D.C. Cir. 2017) (cleaned up). But the Court credits neither legal conclusions couched
as factual allegations, see Iqbal, 556 U.S. at 678, nor inferences unsupported by the facts of the
complaint, see Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006). �e Court may consider
“any documents either attached to or incorporated in the complaint, and matters of which
[courts] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621,
624 (D.C. Cir. 1997).
III.
�e Government moves to dismiss both for lack of subject matter jurisdiction and for
failure to state a claim. First, it argues that Mukkavilli’s unlawful withholding claims (Counts I–
III) are not ripe, and that he fails to state a claim on Count I. At the motions hearing and in
supplemental briefing, the Government also argues that the Court lacks jurisdiction over Counts
I–III because Mukkavilli fails to allege a discrete, required agency action. Second, the
Government avers that this Court lacks jurisdiction to review his claim that USCIS arbitrarily
and capriciously cancelled expedites for certain EB-5 visas because the decision was
discretionary (Count IV). �e Government also argues that Mukkavilli fails to state a claim on
Count IV. �ird, the Government argues that Mukkavilli fails to state a claim for unreasonable
10
delay (Count V). �e Court addresses each argument in turn. 2
A.
�e Government moves to dismiss Mukkavilli’s claims of unlawful withholding (Counts
I–III) on ripeness grounds. “[A]n Article III court cannot entertain the claims of a litigant unless
they are constitutionally and prudentially ripe.” Wyo. Outdoor Council v. U.S. Forest Serv., 165
F.3d 43, 48 (D.C. Cir. 1999). Constitutional ripeness—like standing—requires an injury that is
ongoing or “certainly impending.” Id.Prudential ripeness, on the other hand, prevents courts “from entangling themselves in
abstract disagreements over administrative policies, [and] protect[s] the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a concrete
way by the challenging parties.” In re Aiken County, 645 F.3d 428, 433 (D.C. Cir. 2011). To
avoid such entanglement, courts balance their interests and those of the agency “in delaying
review against the [plaintiff’s] interest in prompt consideration of allegedly unlawful agency
action.” See id. (cleaned up). A motion to dismiss on ripeness grounds is analyzed under Rule
12(b)(1). See Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir.
1996).
Recall that Mukkavilli argues that USCIS is unlawfully withholding (1) a rural visa
number to him under the Reform Act’s set-asides, see Compl. ¶¶ 125–31, (2) adjudication of his
2
�e Court will grant the Government’s motion to waive compliance with Local Civil Rule
7(n)’s requirement that it submit an index of the administrative record. See MTD at 12 n.5;
accord Palakuru, 521 F. Supp. 3d at 50 n.6 (collecting authorities explaining that an index is
unnecessary in cases involving agency inaction). While Mukkavilli claims he “reserves the right
to add additional reasons” to his Complaint after the record is produced, the Court disagrees.
Production of the record is unnecessary to resolve the arguments in the Government’s motion. If
Mukkavilli wishes to add to his Complaint, he must move for leave to amend. See Fed. R. Civ.
P. 15(a)(2); LCvR 7(i).
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petition to adjust his status to lawful permanent resident, see id. ¶¶ 133–41, and (3) an investor
visa number, see id. ¶¶ 143–49. �e crux of the Government’s ripeness argument is that these
claims are “wholly contingent upon future events, and thus do[] not present a live case or
controversy.” MTD at 12–13.
According to the Government, there is no live case about whether USCIS is withholding
a visa reserved for rural areas because “there has not been any final agency action” approving his
initial investor visa petition—likely because no investor visas are available for Indian nationals
who filed when he did. See id. at 13. So too for his adjustment of status petition and investor
visa number. See id. at 16–18. On prudential ripeness, the Government suggests that this Court
should let the administrative process run its course before issuing a decision. See id. at 13. �e
Court disagrees with both theories. 3
Mukkavilli claims he was injured by USCIS’s unlawful withholding of visa numbers.
See Resp. to Def.’s Mot. to Dismiss (Pl.’s Resp.) at 1–2 & n.1, ECF No. 15. �e agency inaction
is what inflicts his injury. Accord Gomez v. Trump, 485 F. Supp. 3d 145, 200 (D.D.C. 2020)
(agency inaction on diversity visas harmed plaintiffs); Food & Water Watch, Inc. v. Vilsack, 808
F.3d 905, 920 (D.C. Cir. 2015) (agency inaction in generating reports harmed organization that
would use them). And the Government cites no case, nor is this Court aware of any, holding that
similar unlawful withholding claims are not constitutionally ripe. Indeed, under the
Government’s logic, no case like Mukkavilli’s would ever be ripe because all requests for visas
hinge on future events.
More, unused reserved visas will flow back into the unreserved visa category after two
3
�e Government was unclear in its briefing and during the motions hearing whether it argues
constitutional or prudential ripeness. See MTD at 11–13, 16–17; Hr’g Tr. at 32–33. So the Court
addresses both.
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years. See 8 U.S.C. § 1153(b)(5)(B)(i)(II). So as the Government conceded at oral argument,
while there is no visa available for Mukkavilli now, there may be in the future. See Hr’g Tr. at
35. �at admission further undercuts the argument that Counts I–III are constitutionally unripe.
�e Government’s passing reference to prudential ripeness fares no better. �is case
presents no abstract disagreements over administrative policies. See, e.g., In re Aiken County,
645 F.3d at 436 (finding issue prudentially unripe because various contingencies regarding a
license application, and the agency’s position on it, will be resolved in the future). And whether
or not the Government is unlawfully withholding something from Mukkavilli is “a purely legal
question, [which] is presumptively reviewable.” Nat’l Min. Ass’n v. Fowler, 324 F.3d 752, 757
(D.C. Cir. 2003).
More, Mukkavilli challenges the inner workings of the administrative process for visa
petitions, so there is no prudential reason for the Court to wait until the administrative decision
“has been formalized and its effects felt in a concrete way by the challenging parties.” Wyo.
Outdoor Council, 165 F.3d at 50. Mukkavilli is already feeling the effects of the alleged
unlawful withholding. See, e.g., Compl. ¶¶ 120–22, 130. For these reasons, the Court will
decline the Government’s invitation to dismiss Counts I–III on ripeness grounds.
B.
Still, the Court has a duty to ensure that it has subject matter jurisdiction. See Penkoski v.
Bowser, 548 F. Supp. 3d 12, 28 (D.D.C. 2021). And it finds that it lacks subject matter
jurisdiction over Mukkavilli’s unlawful withholding claims for a different reason.
Under the APA, this court may “compel agency action unlawfully withheld.” 5 U.S.C.
§ 706(1). But an unlawful withholding claim “can proceed only where a plaintiff asserts that an
agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah
13
Wilderness All., 542 U.S. 55, 64 (2004) (reversing lower court finding of subject matter
jurisdiction). �is “limitation . . . rules out judicial direction of even discrete agency action that
is not demanded by law . . . [or] agency regulations[.]” Id. at 65 (cleaned up). As the Supreme
Court has explained, this provision of the APA “carried forward” the traditional writ of
mandamus remedy. Id. at 63. And the mandamus remedy “was normally limited to enforcement
of a specific, unequivocal command, [and] the ordering of a precise, definite act . . . about which
an official had no discretion whatever.” Id. (cleaned up).
�e D.C. Circuit evaluates APA unlawful withholding claims and mandamus claims using
the same standard. Compare Norton, 542 U.S. at 63–64, with In re Core Commc’ns, Inc., 531
F.3d 849, 855 (D.C. Cir. 2008). �is makes sense because unlawful withholding and mandamus
claims seek the same remedy: an order that USCIS take a discrete, legally required action. Cf.
Compl. ¶¶ 280, 281, 283 (asking the Court to compel USCIS to take various actions related to
Mukkavilli’s visa petitions). To show that he is entitled to such an order, Mukkavilli must
demonstrate “(1) a clear and indisputable right to relief, (2) that the government agency or
official is violating a clear duty to act, and (3) that no adequate alternative remedy exists.” Am.
Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). Unless all these requirements are
met, “a court must dismiss the case for lack of jurisdiction.” Id.; see also Gov’t Suppl. Mem. at
3–7.
As the Circuit recently emphasized, the “clear and indisputable right to relief and clear
duty to act standards are . . . stringent.” Illinois v. Ferriero, 60 F.4th 704, 714 (D.C. Cir. 2023).
To meet them, Mukkavilli must show that a law commands the relief he seeks, not merely
authorizes it. See id. And even if he can establish the “clear duty to act” requirement, separation
of powers concerns may still inhere. See id. at 715. �us, courts must “carefully examine
14
precisely what form of relief is sought by a plaintiff to determine whether it seeks reallocation of
government resources or some other action that is ordinarily beyond the power of mandamus.”
Id.Mukkavilli has not shown that he has a clear and indisputable right to relief for Counts I–
III, or that USCIS is violating a clear duty to act. Cf. Skalka v. Kelly, 246 F. Supp. 3d 147, 153
(D.D.C. 2017) (holding that immigrants failed to show that agency action on their visa petitions
was unlawfully withheld). �erefore, the Court will dismiss these claims for lack of subject
matter jurisdiction. Accord Ferriero, 60 F.4th at 713; Beshir v. Holder, 10 F. Supp. 3d 165, 171
(D.D.C. 2014); Uranga v. USCIS, 490 F. Supp. 3d 86, 98–101 (D.D.C. 2020).
1.
Mukkavilli alleges that USCIS is unlawfully withholding a rural visa number from him.
See Compl. ¶¶ 125–31. 4 Recall that Mukkavilli applied for an investor visa before the Reform
Act passed. See id. ¶ 105; see also supra Part I.C. Recall too that the Reform Act allocated
twenty percent of visas for rural investors, but that once the agency resumed its processing, it
used pre-Act standards for pre-Act petitions. See EB-5 Alerts; see also Eligibility Requirements
(describing different standards for pre-Act petitions). In other words, pre-Reform Act filers—
including Mukkavilli—do not qualify for the new rural set-aside.
While Mukkavilli contests the wisdom of this policy choice, he does not show that he has
a clear and indisputable right to a rural visa number, or that USCIS is violating a clear duty to act
by not issuing him one. See Norton, 542 U.S. at 65. Mukkavilli asserts that USCIS’s choice not
4
Mukkavilli refers at times to a “high unemployment area[]” visa. If Mukkavilli is arguing he is
also entitled to a “targeted employment area” visa under the Reform Act, see 8 U.S.C.
§ 1153(b)(5)(D)(viii) (defining such areas as “rural” or one designated as high unemployment),
that claim fails for the same reasons stated in Part III.B.1. For clarity, the Court simply refers to
a rural visa for Count 1.
15
to consider his visa application under the Reform Act’s new rural category “misreads the statute
and violates congressional intent.” Compl. ¶ 127. But nothing in the Reform Act mandates that
USCIS issue him a rural visa number. Nor does he show he had an indisputable right to such a
number in the first place.
On the contrary, as the Government points out, the Reform Act’s new categories apply
only prospectively. See MTD at 15. �is Court recently held as such. See Del. Valley Reg’l Ctr.,
LLC v. DHS, No. 23-cv-119, 2023 WL 3863637 (D.D.C. June 7, 2023). It incorporates the
reasoning of that opinion by reference and notes a few highlights.
�e Reform Act contains many indicators that it applies prospectively. Consider first the
effective dates sprinkled throughout the Act. In the EB-5 visa reform section—which contains
the new set-aside categories—Congress stated that “[t]he amendments made by this section shall
take effect on the date of the enactment of this Act.” Pub. L. 117-103, § 102(e), 136 Stat. 1070,
1075 (2022) (codified at 8 U.S.C. § 1153 note). And in the section reauthorizing and reforming
the regional center program, Congress stated that “[t]he amendment made by this subsection
shall take effect on the date that is 60 days after the date of the enactment of this Act.” Id. §
103(b)(2), 136 Stat. 1070, 1100 (codified at 8 U.S.C. § 1153 note).
Other courts have noted that similar effective dates are probative (indeed, sometimes
conclusive) evidence of solely prospective application. See, e.g., Landgraf v. USI Film Prods.,
511 U.S. 244, 257–58 (1994) (explaining that a similar statement “does not even arguably
suggest that it has any application to conduct that occurred at an earlier date”); Lytes v. D.C.
Water & Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009) (finding that a delayed effective date
was dispositive).
16
More, the Reform Act explains in one provision that pre-Act standards apply to pre-Act
filers. Investors seeking to “pool” their investments “shall file for classification” under two
different statutory sections depending on whether they filed “before [or after] the date of the
[Reform Act’s] enactment[.]” Id. § 105(a), 136 Stat. 1070, 1103 (codified at 8 U.S.C.
§ 1154(a)(1)(H)). And that new section of the Act “shall apply to any petition . . . that is filed
with the Secretary of Homeland Security on or after the date of the enactment of this Act.” Id.§ 105(b), 136 Stat. 1070, 1103 (codified at 8 U.S.C. § 1154 note).
�ese changes, and others, are a clean break from the prior regime. �e best reading of
the Reform Act is that it overhauled the regional center program, setting aside new percentages
of visas and raising the financial stakes to qualify for them. See Del. Valley Reg’l Ctr., 2023 WL
3863637, at *2, 9.
A default rule of interpretation confirms this reading. Statutes typically only cover
conduct after their enactment. So too for immigration regulations. See Sage IT v. Cissna, 314 F.
Supp. 3d 203, 208 (D.D.C. 2018) (rejecting claim that new USCIS regulation should apply
retroactively). �is presumption against retroactivity is “deeply rooted in our jurisprudence”
because “fairness dictate[s] that individuals should have an opportunity to know what the law is
and to conform their conduct accordingly.” Landgraf, 511 U.S. at 265–66.
To be sure, the presumption typically applies to protect the objecting party from
interference with their “substantive rights, liabilities, or duties[.]” Fernandez-Vargas v.
Gonzales, 548 U.S. 30, 37 (2006). While there is no need to protect USCIS, retroactive
application could harm post-Act investors because fewer reserved visas would be available to
them. Accord Del. Valley Reg’l Ctr., 2023 WL 3863637, at *10. In any event, Mukkavilli
presents no evidence rebutting the presumption against retroactivity. Indeed, he does not
17
meaningfully engage with USCIS’s textual and structural arguments on this point. Instead, he
claims that the agency’s retroactivity argument is a post-hoc rationalization for its prior actions,
which it failed to reasonably explain. See Pl.’s Resp. at 7. �e Court disagrees. Whether the Act
applies only prospectively is relevant to whether Mukkavilli can show an entitlement to its set-
asides.
In sum, Mukkavilli must show that he has a clear and indisputable right to qualify for the
Act’s rural visa set-aside. See Norton, 542 U.S. at 65. Because he fails to do that, the Court will
dismiss Count I for lack of subject matter jurisdiction. Cf. Ferriero, 60 F.4th at 713. 5
2.
Similarly, Mukkavilli alleges that USCIS is unlawfully withholding adjudication of his
adjustment of status petition and withholding an investor visa number. See Compl. ¶¶ 133–41,
143–49. Mukkavilli alleges that a decision to adjust his status or issue a visa number is discrete
and that USCIS “has a non-discretionary duty to make a decision” on it. Id. ¶¶ 133–34, 143. Yet
in support he points only to general regulations governing adjustment-of-status applications and
statutory silence. See, e.g., id. ¶¶ 27–29; Pl.’s Resp. at 8–15; Pl.’s Suppl. Mem. at 2–4.
First, the regulations. Mukkavilli states that “regulations independently and collectively
demonstrate a decision on [his petition] is required.” Id. ¶ 30. But their text belies that
conclusory claim. �ese regulations merely grant USCIS jurisdiction to decide such petitions,
see 8 C.F.R. § 245.2(a)(1), and specify steps the agency must take if it approves or denies the
5
USCIS also moves to dismiss Count I for failure to state a claim under Rule 12(b)(6) for the
same reasons just discussed: that the Act does not apply retroactively. See MTD at 13–16.
Mukkavilli merely alleges, without further explanation, that USCIS’s refusal to give him a rural
visa number “is unlawful because it misreads the statute and violates congressional intent.”
Compl. ¶ 127. But the Court need not credit such conclusory assertions. See, e.g., Iqbal, 556
U.S. at 678. �us, 12(b)(6) is an independent basis for dismissal of Count I.
18
application, see id. § 245.2(a)(5); see also id. §§ 103.2(b)(19), 103.3. �ey impose no clear duty
on USCIS. Cf. Beshir, 10 F. Supp. 3d at 173 (finding no duty for USCIS to adjudicate
adjustment of status petitions).
Next, the statute. Mukkavilli claims that 8 U.S.C. § 1255(a) supports his unlawful
withholding claims. See Pl.’s Resp. at 9–10, 12–17; see also Pl.’s Suppl. Mem. at 3–5. �is is so
because it does not require a visa to be immediately available when USCIS adjudicates an
adjustment of status application. See, e.g., Pl.’s Resp. at 9. Based on that statutory silence,
Mukkavilli spins out an argument based on § 1255(a)’s structure and history, concluding it was
Congress’s intent to “knowingly reject[] the requirement to have a current visa number at
approval.” See, e.g., id. at 13–15. �e Court declines to draw inferences about Congress’s
intent, especially where those inferences stem from statutory silence. See, e.g., Oklahoma v.
Castro-Huerta, 142 S. Ct. 2486, 2496–97 (2022). And the text of § 1255(a) includes no
mandatory duty to issue decisions on adjustment of status petitions. See 8 U.S.C. § 1255(a).
Quite the opposite. It states that an alien’s status “may be adjusted by the Attorney General, in
his discretion” if he meets certain requirements. See id.Finally, Mukkavilli argues that “[w]here Congress has specifically provided a deadline
for performance, courts in the Ninth Circuit enforce it.” Compl. ¶¶ 136, 145. Perhaps. But he
points to no deadline by which USCIS must act on his adjustment of status petition or issue him
an investor visa number. �us, even if the non-binding cases he cited were persuasive, he would
still lose.
A decision on an adjustment of status petition—for Mukkavilli or any other immigrant—
is a matter of agency discretion, not something demanded by law. See Norton, 542 U.S. at 65.
Mukkavilli points to no statute or regulation mandating that USCIS act on his adjustment of
19
status petition or to issue him an investor visa number. See id. at 66. 6 �us, the Court lacks
jurisdiction over Counts II and III. Cf. Ferriero, 60 F.4th at 713; Beshir, 10 F. Supp. 3d at 173.
C.
Next up is Mukkavilli’s claim that USCIS arbitrarily ended expedites for the regional
center in which he invested. See Compl. ¶¶ 151–56. �e Government argues that the Court
lacks jurisdiction over this claim because the decision was committed to agency discretion by
law, and, alternatively, that he fails to state a claim. See MTD at 19–22. �e Court agrees that
Mukkavilli fails to state a claim. 7
Recall that USCIS expedited some visas tied to the Tryon Center. See, e.g., Compl.
¶¶ 100, 183; USCIS Letter. It apparently did so to help complete the center before the 2018
World Equestrian Games. See USCIS Letter. But USCIS also explained that it mistakenly
continued expediting some investor visas after the 2018 Games. See id. Mukkavilli now claims
that its decision not to expedite his 2020 petition was arbitrary and capricious for various
6
Mukkavilli also argues that USCIS’s “adjudication hold policies” are unlawful. Compl.
¶¶ 133, 137. Recall that the agency has no such policy. See supra Part I.C. Rather, under its
availability approach to processing, USCIS puts visa petitions from oversubscribed countries on
the back-burner to allow it to process petitions more efficiently. See id. More, Mukkavilli claims
that the “policy” is illegal because it “contravenes Congressional intent.” Compl. ¶¶ 138, 147.
But he never explains why, and the Court need not credit such conclusory allegations, especially
given that no such policy exists.
7
�e D.C. Circuit has held that a complaint seeking review of an action committed to agency
discretion by law under 5 U.S.C. § 701(a)(2) “has failed to state a claim under the APA and
therefore should be dismissed under Rule 12(b)(6),” not Rule 12(b)(1). See Sierra Club v.
Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011); Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir.
2009). �ere is some tension between these holdings and the Supreme Court’s decision in
Norton v. Southern Utah Wilderness Alliance, which holds that to have subject matter jurisdiction
over an “unlawful withholding” claim under 5 U.S.C. § 706(1), one must allege a discrete, non-
discretionary duty. See 542 U.S. at 63–64; see supra Part III.B.1. �e inverse of a non-
discretionary duty is that an action is discretionary, implicating § 701(a)(2). It seems strange that
these provisions—almost two sides of the same coin—are governed by different standards. But
the Court need not resolve this incongruity to decide the § 701(a)(2) and § 706(1) claims here.
20
reasons. See Compl. ¶ 154. He insists that USCIS disregarded his reliance interests, did not
engage in reasoned decision-making or allow him to respond, and offered a pretextual reason for
rescinding the expedite. See id.
While many final agency actions are reviewable under the APA, this Court may not
review one that is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); see also
Heckler v. Chaney, 470 U.S. 821, 829 (1985). An action is committed to agency discretion if a
statute provides “no meaningful standard against which to judge the agency’s exercise of
discretion.” Chaney, 470 U.S. at 830. �is is so because courts lack a “concrete limitation[] to
impose on the agency’s exercise of discretion.” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d
151, 156 (D.C. Cir. 2006) (cleaned up).
To evaluate whether an action is committed to the agency’s discretion, this Court
considers “both the nature of the administrative action at issue and the language and structure of
the statute[.]” Id. Mukkavilli points to no statute that authorizes USCIS to expedite investor visa
petitions. See generally Compl. Indeed, at times he argues that USCIS acted unlawfully by
expediting at all. See, e.g., id. ¶ 222; see also Hr’g Tr. at 12–13.
Regardless, such a decision is committed to agency discretion by law. See MTD at 20–
22. �e Reform Act’s predecessor—which governed when Mukkavilli petitioned—states that the
Secretary “may give priority to petitions filed by aliens seeking admission[.]” Pub. L. No. 102-
395, § 610(d) (Oct. 6, 1992), as amended by Pub. L. 108-156 (Dec. 3, 2003) (repealed Mar. 15,
2022). And the Reform Act includes similar language, explaining that the Secretary “may
process petitions in a manner and order” he establishes. See Pub. L. 117-103, § 103(b)(1), 136
Stat. 1070, 1075 (2022) (codified at 8 U.S.C. § 1153(b)(5)(E)(ii)).
Both versions suggest that the decision to expedite a petition—or not—is committed to
21
the Government’s discretion. �e “usual presumption is that ‘may’ confers discretion.” Zhu v.
Gonzalez, 411 F.3d 292, 295 (D.C. Cir. 2005) (cleaned up); see also Citizens for Responsibility &
Ethics in Wash. v. FEC, 892 F.3d 434, 439 (D.C. Cir. 2018) (explaining that “the word ‘may’
imposes no constraints on the [agency’s] judgment”). And the Circuit has held that similar
provisions commit decisions to agency discretion, shielding them from judicial review. For
example, it found that the Attorney General has “complete discretion” to waive requirements for
work visas where the statute states he “may” “waive the [statutory] requirements” “when [he]
deems it to be in the national interest[.]” Zhu, 411 F.3d at 293, 295–96.
So too here. Neither version of the investor visa statute supplies standards for courts to
judge the agency’s exercise of discretion. Decisions about processing and prioritization are left
to the Secretary. USCIS confirms this on its website, stating that the “decision to accommodate
an expedite request is within [its] sole discretion.” See Requests to Expedite Applications or
Petitions, USCIS Policy Manual, Vol. 1, Part A, Ch. 5, https://perma.cc/W4BW-B5ZE. And it
lists the criteria that it considers, including financial consequences, emergencies, other urgent
humanitarian reasons, and more. See id. In other words, the decision to grant an expedite is “a
matter of grace” that requires a “favorable exercise of discretion.” Patel v. Garland, 142 S. Ct.
1614, 1619 (2022).
Because “no standards for judging the agency action are discernable, meaningful judicial
review is impossible, and agency action is shielded from the scrutiny of the courts[.]” Make the
Rd. N.Y. v. Wolf, 962 F.3d 612, 632 (D.C. Cir. 2020). �e Court will therefore dismiss Count IV
for failure to state a claim. 8
8
Mukkavilli conceded that Count IV is his “weakest claim.” See Hr’g Tr. at 12.
22
D.
Finally, Mukkavilli argues that USCIS has unreasonably delayed a decision on his
investor visa petition. See Compl. ¶¶ 159–274. He contends that a delay of about 25 months
violates the APA, which requires USCIS to act “within a reasonable time.” Id. ¶ 117; see also id.
¶ 105 (stating that he petitioned for an EB-5 visa in September 2020). 9 �e Government argues
that Mukkavilli fails to state a claim for unreasonable delay. See MTD at 23–41. �e Court
agrees with the Government.
“�ere is no per se rule as to how long is too long to wait for agency action[.]” In re Am.
Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (cleaned up). Addressing an
unreasonable delay claim is “ordinarily a complicated and nuanced task requiring consideration
of particular facts and circumstances before the court.” So courts in this Circuit consider the so-
called TRAC factors:
(1) the time agencies take to make decisions must be governed by a rule of reason;
(2) when 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;
9
�e Government argues that Mukkavilli’s petition has been pending for “less than two years”
because the eight months during which Congress failed to reauthorize the program should not
“be counted against the agency.” MTD at 29–30. �e Court is inclined to agree because USCIS
lacked any authority to issue visas for regional centers during this time. Accord Da Costa, 2022
WL 17173186, at *6 (collecting cases holding the same). But even if the petition has been
pending for more than two years, as Mukkavilli asserts, see Pl.’s Resp. at 28, the Court finds that
the delay is not unreasonable.
23
(4) the effect of expediting delayed action on agency activities of a higher or competing
priority;
(5) 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.
Telecomms. Rsch. & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984).
�e Government suggests in supplemental briefing that courts need not conduct TRAC
analysis if no clear, non-discretionary duty has been identified. See Gov’t Suppl. Mem. at 2 n.1,
7. �is seems right because even if the Court finds the delay unreasonable, if there is no clear,
non-discretionary duty to act, there is nothing the Court may mandamus. See, e.g., Norton, 542
U.S. at 63, n.1 (“[A] delay cannot be unreasonable with respect to action that is not required.”).
But even assuming the TRAC factors apply, Mukkavilli has stated no plausible claim for relief
that USCIS unreasonably delayed adjudication of his investor visa.
1.
�e Court first resolves a threshold objection: Mukkavilli argues that the question of
unreasonable delay should not be evaluated at the motion-to-dismiss stage because it is too fact-
intensive. See Pl.’s Resp. at 20–21. �e Court disagrees.
Courts in this Circuit routinely apply the TRAC factors at the motion-to-dismiss stage to
determine whether a plaintiff has alleged facts sufficient to state a plausible claim for
unreasonable delay. See, e.g., Palakuru, 521 F. Supp. 3d at 50 n.5 (collecting cases). Mukkavilli
argues that fact disputes exist, citing several documents he obtained through FOIA. See Hr’g Tr.
24
at 4–5. 10 While the Court has reviewed these exhibits, they do not persuade it that further
discovery is warranted here. Mukkavilli fails to distinguish his case from other unreasonable
delay cases evaluated at the motion-to-dismiss stage. See Gov’t Reply at 5–6, ECF No. 16.
Mukkavilli also says this Court should not credit the Government’s version of the facts in
analyzing the TRAC factors. See Pl.’s Resp. at 21. �e Court treats his allegations as true, as it
must. But it may take judicial notice of information posted on official government websites
without transforming the Government’s motion into one for summary judgment. See, e.g.,
Dastagir v. Blinken, 557 F. Supp. 3d 160, 163 n.3 (D.D.C. 2021).
�e Court analyzes the TRAC factors in groups.
2.
�e first and second TRAC factors assess “whether the agency’s response time complies
with an existing specified schedule and whether it is governed by an identifiable rationale.” Ctr.
for Sci. in the Pub. Int. v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C. 2014). �ese two factors are
“typically considered together,” Milligan v. Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020),
though the first is the “most important,” In re Core Commc’ns, Inc., 531 F.3d at 855.
Recall that USCIS manages investor visa petitions using an “availability approach,”
prioritizing petitions for aliens from countries with available visas. See Processing
Announcement. �en, when visas are available for investors from a certain country, the “first-in,
first-out” method kicks back in. See Questions and Answers. �is is an identifiable rationale.
And it makes sense based on USCIS’s priorities, which include efficiency and processing
10
As the Government notes, some of these documents are appended to Mukkavilli’s original
Complaint and others are attached to his Opposition. See Gov’t Reply at 4, n.2, ECF No. 16
(listing exhibits). None are attached to his Amended Complaint. �ey are thus arguably not
properly before the Court now.
25
investor visas from “traditionally underrepresented countries.” MTD at 25. �is Court echoes a
growing chorus holding that USCIS’s investor visa adjudication process is governed by a rule of
reason. Accord Palakuru, 521 F. Supp. 3d at 51; see also DaCosta, 2022 WL 17173186, at *8
(collecting authorities holding the same).
Mukkavilli argues that Congress wants visas adjudicated within 180 days. See Compl.
¶ 191. He cites 8 U.S.C. § 1571(b) in support, which states that “[i]t is the sense of Congress
that the processing of an immigration benefit application should be completed not later than 180
days after the initial filing of the application.” Id.; see also Pl.’s Reply at 34. But a “sense of
Congress resolution is not law.” Emergency Coal. to Def. Educ. Travel v. Dep’t of Treasury, 545
F.3d 4, 14 n.6 (D.C. Cir. 2008). Mukkavilli thus wisely concedes that this provision is “not
mandatory.” Compl. ¶ 193; see also id. ¶ 194 (calling the provision a “legislative aspiration”).
Several courts agree. See, e.g., Skalka, 246 F. Supp. 3d at 153–54; Palakuru, 521 F. Supp. 3d at
51–52. Even if this provision provides some “indication of the speed with which [Congress]
expects the agency to proceed,” TRAC, 750 F.2d at 80, it does not change the Court’s rule-of-
reason analysis.
Mukkavilli levies a few other counterarguments. First, he claims that USCIS lacks a rule
of reason because it “systemically prioritizes later filed petitions over earlier filed petitions.”
Compl. ¶¶ 167–68. And he argues that investor visa petitions filed after his have already been
decided because of USCIS’s visa expedites for the Tryon Center. See id. ¶¶ 176, 183–84. But he
provides no factual support for these conclusory assertions. Nor does he allege that other
immigrants from his country with later-filed petitions were expedited ahead of him. And, as
explained, USCIS informed Mukkavilli that it had mistakenly expedited some visas tied to
Tryon. See USCIS Letter. �is does not disturb the Court’s conclusion that USCIS processes
26
investor petitions reasonably. See, e.g., Iqbal, 556 U.S. at 678 (explaining courts need not credit
unsupported allegations). A few mistakes do not invalidate a reasoned system.
Second, Mukkavilli raises several complaints about transparency. For example, he argues
that USCIS improperly relies on unspecified “other factors” to prioritize investor visa petitions.
See Compl. ¶ 170 (citing Questions and Answers). And he argues that the agency does not
explain how cases are assigned to an adjudicator. See id. ¶ 171. But the fact that USCIS does
not explain how cases are assigned to an adjudicator is not dispositive of whether its method of
processing petitions is reasonable. Besides, USCIS explains on the same website Mukkavilli
cites that another factor is whether the investor’s “underlying project has been reviewed.” See
Questions and Answers.
Third, Mukkavilli points to USCIS’s slow pace in adjudicating investor visas. See
Compl. ¶¶ 177–81. He argues that because the agency is processing “historically low” numbers
of petitions despite increasing its staff, its processing method must be unreasonable. See id. ¶¶
179–82. �is logic does not follow. While a backlog certainly exists, see, e.g., USCIS
Announces New Actions to Reduce Backlogs, USCIS, https://perma.cc/NBW4-6ZAQ, USCIS is
working to combat it, see, e.g., id. Indeed, its shift to the visa availability approach was one
response. See Processing Announcement. More, courts have regularly found that waiting times
like Mukkavilli’s are not unreasonable. See, e.g., Palakuru, 521 F. Supp. 3d at 52 (collecting
cases).
In sum, TRAC factors one and two favor USCIS.
3.
Next up is the fourth TRAC factor, or the “effect of expediting delayed action on agency
activities of a higher or competing priority.” TRAC, 750 F.2d at 80. Here, the D.C. Circuit has
27
underscored that courts should assess whether USCIS is juggling competing priorities with
limited resources. See Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094,
1100–02 (D.C. Cir. 2003). For courts “have no basis for reordering agency priorities.” In re
Barr Lab’ys, Inc., 930 F.2d 72, 75 (D.C. Cir. 1991). �e Circuit has thus “refused to grant
relief,” despite all the other TRAC favors favoring it, when “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.”
Id.So too here. Were the Court to compel USCIS to adjudicate Mukkavilli’s petition, it
would move him ahead of other similarly-situated investors simply because he sued. More,
forcing the agency to act on his petition when there are no investor visas for Indian nationals, see
supra Part I.B (discussing the Visa Bulletins), raises significant separation of powers concerns,
see Ferriero, 60 F.4th at 715 (noting that separation of powers may counsel against mandamus
relief). �is is so because Congress has capped the number of employment-based visas
available, see 8 U.S.C. § 1151(d), and the number of visas available per country, see id. §
1152(a)(2). And there are no more investor visas available to Indian nationals. See supra Part
I.B. So not only would an order move Mukkavilli ahead in line, it would also command USCIS
to exceed the country caps Congress prescribed.
Mukkavilli’s counterarguments are unpersuasive. First, he claims that compelling action
on his petition would not move him to the front of the line because there is no line. See Compl.
¶¶ 221–23. Rather, according to Mukkavilli, USCIS has a “pool” of investor visa petitions,
which it decides in an “arbitrary order.” Id. ¶ 221. Not so.
As explained, USCIS processes petitions reasonably by prioritizing investors whose
countries have available visas. See supra Part III.A.2. �en, it uses a first-in, first-out approach.
28
See id. So compelling USCIS to act on his petition would allow him to jump the line of other
Indian nationals who invested in a regional center who filed petitions earlier.
Second, he argues that USCIS already prioritizes regional center petitions for investors.
See Compl. ¶ 216. Maybe so, but USCIS also prioritizes petitions based on whether visas are
available to investors from particular countries, and there are none for India.
Third, Mukkavilli contends that compelling action on his petition will not interfere with
agency priorities because the agency could process all petitions if it wished to. See id. ¶¶ 208–
15. �is is unpersuasive. Mukkavilli offers no support for this assertion beyond his opinion that
USCIS is moving slower than necessary given its resources.
Fourth, and finally, Mukkavilli claims that the regional center program “never lapsed”
and accuses USCIS of improperly focusing on immigration investigations rather than
adjudications. See id. ¶¶ 242–61. �e Court is hard-pressed to understand how these arguments
relate to the TRAC analysis. And as USCIS points out, they suffer from factual and logical
inconsistencies. See MTD at 30–31.
In sum, granting Mukkavilli the relief he seeks would interfere with agency priorities,
move him ahead of similarly situated investors, and potentially violate the separation of powers.
�e fourth TRAC factor thus decisively favors USCIS.
4.
�e Court looks next to TRAC factors three and five. �ese involve “the interests
prejudiced by delay,” including the impact on “human health and welfare.” TRAC, 750 F.2d at
80. Mukkavilli argues that he cannot travel or tend to his parents, and that the delay has caused
his family anxiety and stress. See Compl. ¶¶ 119–20. He also claims that he passed up other
29
employment-visa opportunities because he thought his investor visa would be processed quickly.
See id. ¶ 121. And he explains that he lost almost a million dollars. See id. ¶ 122.
�e Court has no doubt that Mukkavilli has an interest in prompt adjudication. But many
other investors do too. More, to receive an investor visa, Mukkavilli knew that he had to put his
money “at risk.” See, e.g., 8 C.F.R. § 204.6. At most, factors three and five only slightly favor
finding an unreasonable delay. Even so, they do not tip the balance against the other factors that
favor the Government. Accord Palakuru, 521 F. Supp. 3d at 53. USCIS juggles competing
priorities when it adjudicates visas, including congressionally mandated country and program
limits. Mukkavilli’s individual interests do not overcome these systemic interests.
5.
Finally, the sixth TRAC factor is neutral. It instructs courts that they “need not find any
impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably
delayed.’” TRAC, 750 F.2d at 80. Mukkavilli argues that USCIS “promised expedited
treatment” for his investor visa, but then cancelled the expedite without notice. Compl. ¶ 268.
�e Court finds this bad-faith argument unpersuasive for a few reasons. First, Mukkavilli
alleges it was the center’s website that promised him that his petition would be expedited, not
USCIS. See id. ¶¶ 99–103; see also EB-5 Fast, https://perma.cc/4S22-F5KH. Second, one of
Mukkavilli’s exhibits shows that USCIS notified him that it was not going to expedite his
petition, and that past expedites had been mistakes. See USCIS Letter. Perhaps wisely,
Mukkavilli drops these arguments in support of the sixth factor in his opposition. See generally
Pl.’s Resp.
�e sixth factor is thus neutral and does not alter the Court’s analysis.
30
IV.
In sum, the Court will dismiss Mukkavilli’s unlawful withholding claims (Counts I–III)
for lack of jurisdiction. And he fails to state a claim for Count I. �e Court will also dismiss
Mukkavilli’s claim that USCIS arbitrarily refused to expedite his petition for failure to state a
claim because that decision was committed to agency discretion by law (Count IV). Finally, the
Court finds that Mukkavilli states no claim for unreasonable delay under the TRAC factors
(Count V). Because Mukkavilli is not a “prevailing party,” 28 U.S.C. § 2412, his request for
attorney’s fees under the Equal Access to Justice Act, see Compl. ¶¶ 275–78, will be denied. For
these reasons, the Court will grant the Government’s Motion to Dismiss. A separate Order will
issue today.
2023.06.15
Dated: June 15, 2023 12:35:37 -04'00'
_____________________________
TREVOR N. McFADDEN, U.S.D.J.
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