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Adab v. United States Citizenship and Immigration Services

United States District Court, District of Columbia

September 29, 2017

MARZIEH ADAB, Plaintiff,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         The 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.

         I. Background

         In 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. § 1153(b)(5)(A)(ii).

         Defendant 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, ” available at https://www.uscis.gov/unassigned/immigrant-visa-petitions-returned-state-department-consular-offices.

         On 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.

         At 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.

         With 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.

         Based 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.

         II. Legal Standard

         This 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. 2010).

         Before 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.”).

         It is 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., ...


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