Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Doe v. McAleenan

United States Court of Appeals, Seventh Circuit

June 17, 2019

John Doe, Plaintiff-Appellant,
v.
Kevin K. McAleenan, Acting Secretary of Homeland Security, et al., Defendants-Appellees.

          Argued March 28, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 4190 - John Robert Blakey, Judge.

          Before Ripple, Manion, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         Plaintiff John Doe, an Iranian national, petitioned for conditional permanent residency in 2013. He used the EB-5 admission category, which offers visas for immigrants who invest in new job-creating enterprises. The United States Citizenship and Immigration Service ("USCIS" or "agency") initially approved Doe's petition but revoked its approval roughly two years later.

         Doe sought judicial review of the agency's actions under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. But the district court concluded that Congress had stripped its jurisdiction to review discretionary revocations of visa petitions and dismissed Doe's suit. See 8 U.S.C. § l252(a)(2)(B)(ii).

         We affirm. Doe relies on the narrow jurisdictional gateway offered by Musunuru v. Lynch, 831 F.3d 880 (7th Cir. 2016). In Musunuru we held that § l252(a)(2)(B)(ii) doesn't preclude judicial review of purely procedural rulings during the adjudication of a visa petition. 831 F.3d at 887-88. But the ruling at issue here wasn't procedural. Doe is challenging the agency's substantive decision-making. And he cannot evade a jurisdiction-stripping statute by repackaging his substantive complaints as procedural objections.

         I. Background

         Congress allocates visas under the EB-5 admission category for "qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise." 8 U.S.C. § 1153(b)(5)(A). To qualify, an alien must show that he "has invested ... or[] is actively in the process of investing" the minimum amount of capital and that his investment "will ... create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted." Id. The default capital requirement is $1 million, but $500, 000 suffices for a project located in a "targeted employment area." Id. § H53(b)(5)(C)(ii); 8 C.F.R. § 204.6(f)(2).

         An alien seeking an EB-5 visa must file a petition using Form 1-526. 8 C.F.R. § 204.6(a). If the petition is approved, he receives a conditional form of permanent-resident status. 8 U.S.C. § H86b(a)(1). But the USCIS "may, at any time, for what [it] deems to be good and sufficient cause," revoke an approved 1-526 petition after providing notice and an opportunity to respond. See id. §§ 1155, 1154(a)(1)(H); 8 C.F.R. § 205.2. The agency's final revocation notice must be in writing and "explain[] the specific reasons for the revocation." 8 C.F.R. § 205.2(c).

         John Doe submitted his petition on June 7, 2013. Doe and 23 other investors each deposited $500, 000 in Golden Assisted Living EB-5 Fund, LLC, a "new commercial enterprise" under 8 C.F.R. § 2O4.6(j)(1). The enterprise, controlled by Attorney Taher Kameli, loaned the pooled $12 million to Golden Memory Care, Inc., which planned to construct an assisted-living center in Lake Barrington, Illinois. In August 2013 the USCIS issued Doe a Request for Evidence seeking additional information about the project. Doe's response notified the agency that the project had been "moved from Lake Barrington, Illinois to Fox Lake, Illinois, ... due to several unforeseen issues." He claims that he provided an updated business plan and an Illinois state agency's letter certifying Fox Lake as a targeted employment area.

         The USCIS approved Doe's petition on May 8, 2014, and Doe requested a visa through the United States Consulate in Abu Dhabi. But in January 2015, the State Department reviewed Doe's petition and returned it to the USCIS for review and possible revocation. The USCIS issued a Notice of Intent to Revoke on January 11, 2016. The agency explained that revocation is appropriate where "material changes ..., if unexplained and unreburted, would warrant a denial of the approved visa petition." The notice identified two material changes. First, "[s]ubsequent to approving the petition, [the] USCIS discovered information that contra-dict[ed] evidence in the record"-namely, that the project had moved to Fox Lake. The agency asserted that Doe hadn't provided a business plan or targeted employment area certification for the new location. Second, the record contained no evidence that the Fox Lake center was under construction or would create ten jobs.

         Doe disputed the agency's characterization. He had already notified the USCIS that the project had been relocated to Fox Lake, so the agency couldn't have "discovered" that fact after approving his petition. Doe claimed to have provided each piece of evidence the USCIS said was missing: an updated business plan, a targeted employment area certification, and a job-creation report. Finally, he challenged the legal basis for the agency's "material change" standard.

         Unmoved, the agency issued a Notice of Revocation on March 31, 2016. But it erroneously referenced a different EB-5 project, also controlled by Kameli, that had relocated from Waukegan, Illinois to West Dundee, Illinois. Doe notified the USCIS ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.