March 28, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 C 4190 - John
Robert Blakey, Judge.
Ripple, Manion, and Sykes, Circuit Judges.
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.
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. §
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.
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.
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).
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.
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.
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.
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 ...