United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE
Marzieh Adab hopes to get the green light on her green-card
application. Specifically, she seeks an EB-5 visa, which
creates a pathway to citizenship for foreign persons who
invest at least $500, 000 in the United States. To proceed,
Plaintiff first needed Defendant United States Citizenship
and Immigration Services to approve her I-526
alien-entrepreneur petition. USCIS initially declined to do
so, prompting Plaintiff to bring this suit. Before the case
could begin in earnest, the parties reached a settlement
agreement, pursuant to which Adab received a second shot to
prove eligibility. After she apparently did so, USCIS gave
its long-awaited approval to her I-526 petition and passed it
along to the State Department for visa issuance.
saga did not end there, however. Two years later, State asked
USCIS to reconsider its approval, prompting the latter agency
to issue notice of its intent to revoke the petition. Adab
has now responded with the instant Motion to Enforce the
parties' Settlement Agreement. She alleges that
revocation would violate the Agreement and asks this Court to
hold Defendants to their bargain. Adab's tactical move,
however, stalls at the starting line. USCIS has not yet
revoked her I-526 petition, and thus the action that
allegedly injured her is not yet ripe for review. The Court
must therefore deny the Motion without prejudice.
1990, Congress amended the Immigration Naturalization Act to
provide a priority visa classification for “employment
creation” immigrants who invest a substantial amount of
capital in the United States and create full-time employment
for U.S. workers. See Immigration Act of 1990, Pub.
L. No. 101-649, § 121(a) (Nov. 29, 1990) (codified as
amended at 8 U.S.C. §§ 1153(b)(5)). The program,
known as the “EB-5” program (or, perhaps more
colloquially, the “golden visa” program) has two
core requirements: First, an applicant must invest at least
$500, 000 in a new or troubled commercial enterprise.
See 8 U.S.C. § 1153(b)(5)(C); 8 C.F.R. §
204.6(f). Second, the investment must create at least ten
jobs for lawful U.S. workers. See 8 U.S.C. §
USCIS administers the EB-5 program, see 8 C.F.R.
§ 204.6, and establishes the procedures governing EB-5
classification. See 56 Fed. Reg. 60, 897, 60, 910-13
(INS) (Nov. 29, 1991) (codified at 8 C.F.R. § 204.6). As
is often the case with government benefits, the process for
obtaining an EB-5 visa can be complex. Most basically, it
proceeds in two steps: The USCIS (part of the Department of
Homeland Security) must first approve a Form I-526, Immigrant
Petition by Alien Entrepreneur. See 8 C.F.R. §
204.6(a). Its approval indicates that the petitioner has
provided prima facie evidence of qualification for
the visa. The Department of State then reviews any approved
petition and, if appropriate, issues an EB-5 visa. Should
State deem the petition approved in error, it will refer the
application back to USCIS for further consideration.
See USCIS, “Immigrant Visa Petitions Returned
by the State Department Consular Offices, ”
March 1, 2013, Plaintiff filed an I-526 petition with USCIS
based on her $500, 000 investment in a Riverside, California,
development project. See Compl., ¶ 69. A year
later, USCIS denied the petition (and that of 37 other
investors in the project), concluding that the investors had
failed to satisfy the Act's job-creation requirement.
Id., Exh. 10 (USCIS Decision) at 14-25. Adab brought
suit, first in California and, after a venue change, in this
Court. See ECF Nos. 25 & 26. Before the case
ramped up, however, the parties settled. Pursuant to the
bargain, USCIS agreed to reopen Plaintiff's I-526
petition, giving her a second chance to establish her
eligibility. See Mot. to Enforce, Exh. A (Settlement
Agreement), ¶ 2. In return, Adab would “stipulate
to dismiss this action with prejudice within sixty (60) days
after USCIS issue[d] a final decision” on her petition.
Id., ¶ 7. Should anything go awry, the parties
also provided that “[e]ither Party may apply to th[is]
Court for enforcement of [the] Agreement.”
Id., ¶ 5.
first, all went according to plan. After consummating the
agreement, the parties filed a joint motion to
administratively close the case on June 8, 2015, on the
ground that the agency would soon thereafter process the
petition. See ECF No. 44. A few weeks later, USCIS
issued a notice of approval. See Mot. to Enforce,
Exh. C (Approval Note). Despite USCIS's final decision,
however, the parties never filed a stipulation of dismissal,
and this case has remained administratively closed ever
since. The parties offer no explanation for why they failed
to follow up.
the case on ice, trouble eventually ensued. Plaintiff's
application proceeded to the State Department, which bears
the final responsibility for issuing an EB-5 visa.
See 8 U.S.C. § 1201(a)(1). On review, State
suspected that Plaintiff had committed fraud in her
application, see Def. Opp., Exh. A (Declaration of
Julia L. Harrison), ¶ 5, and therefore deemed her
ineligible to receive a visa. See Mot. to Enforce,
Exh. D (Foreign Service Refusal Worksheet) at 1. As
Defendants explain, the Department's Fraud Prevention
Unit purportedly discovered that eleven out of the fifteen
employees for whom Plaintiff had submitted I-9 Forms were not
U.S. citizens or otherwise qualifying U.S. workers.
See Harrison Decl., ¶ 5. Further, it determined
that those eleven I-9 Forms included fraudulent information
as to each individual's alien-registration number and, in
some cases, social-security number. Id. State
believed the false information was submitted willfully to the
Government to obtain an immigration benefit and therefore
suspected Plaintiff had committed misrepresentation.
Id.; see 8 U.S.C. § 1182(a)(6)
(misrepresentation is one basis of inadmissibility). In light
of its investigation, the agency returned the I-526 petition
to USCIS with a detailed memorandum of its findings and
recommendation for reconsideration. See Harrison
Decl., ¶ 3.
on these recommendations, USCIS issued a Notice of Intent to
Revoke (NOIR) to Plaintiff on June 15, 2017. See
Mot. to Enforce, Exh. G (NOIR). The NOIR set forth the State
Department's findings in detail, noting that the current
record, if unexplained and unrebutted, would warrant revoking
her petition. Id. The NOIR also advised Adab of her
opportunity to offer evidence in support of said petition and
in opposition to the proposed revocation within thirty days.
Id. Before responding to the NOIR, however, and
prior to any decision by USCIS, Plaintiff filed the instant
Motion on July 12, 2017, asking this Court to enforce the
parties' Settlement Agreement. See ECF No. 45.
Court's authority to enforce a settlement agreement is
“well established.” Autera v. Robinson,
419 F.2d 1197, 1200, 1200 n.9 (D.C. Cir. 1969) (holding that
a “trial court has power to summarily enforce on motion
a settlement agreement entered into by the litigants while
the litigation is pending before it”). Unless the
parties dispute whether a binding settlement agreement
exists, a district court may enforce it summarily.
Id. In this case, the Government concedes the
legitimacy of the June 4, 2015, Agreement. The relevant
merits question, accordingly, is simply one of contract
interpretation. Keepseagle v. Perdue, 856 F.3d 1039,
1047 (D.C. Cir. 2017) (“We interpret a settlement
agreement under contract law.”); see also Gonzalez
v. Dep't of Labor, 609 F.3d 451, 457 (D.C. Cir.
the Court may reach the merits, however, it must first
determine whether it has jurisdiction to do so, as
“Article III jurisdiction is always an antecedent
question.” Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 101 (1998). A court may not,
therefore, “resolve contested questions of law when its
jurisdiction is in doubt.” Id. at 101; cf.
Lee's Summit, MO v. Surface Transp. Bd., 231 F.3d
39, 41 (D.C. Cir. 2000) (“When there is doubt about a
party's constitutional standing, the court must resolve
the doubt, sua sponte if need be.”).
the plaintiff who bears the burden of proving that the court
has subject-matter jurisdiction to hear her claims. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992); U.S. Ecology, Inc. v. U.S. Dep't of
Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). Although the
Court must “treat the complaint's factual
allegations as true . . . and must grant plaintiff ‘the
benefit of all inferences that can be derived from the facts
alleged, '” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting
Schuler v. United States, 617 F.2d 605, 608 (D.C.
Cir. 1979)) (citation omitted), “the [p]laintiff's
factual allegations . . . will bear closer scrutiny in
resolving” jurisdictional issues than merits ones.
See Grand Lodge of Fraternal Order of Police v.
Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001) (quoting 5A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1350 (2d ed. 1987)).
Additionally, a court “may consider materials outside
the pleadings in deciding [questions] of jurisdiction. . .
.” Jerome Stevens Pharms., Inc. v. F.D.A., ...