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Cases that may guide USCIS in EB-5 Nexus review standards
 

Cases that may guide USCIS in EB-5 Nexus review standards

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    Cases that may guide USCIS in EB-5 Nexus review standards Cases that may guide USCIS in EB-5 Nexus review standards Document Transcript

    • Cases That May Guide USCIS In EB-5 NEXUS Review Standards By Joseph P. Whalen (April 25, 2012)The following discussion is somewhat esoteric because I do not draw from actualEB-5 cases but rather from cases discussing “concepts” that should be usefulacross contexts. The first case is a rather recent non-precedent in the realm ofasylum. Xia Chen v. Eric Holder, Jr., No. 09-71327 (9th Cir., APR 20 2012)1included the following observation and case citation. “.... However, as to Chen’s future fear, substantial evidence does not support the BIA’s nexus determination, because Chen’s testimony and supporting affidavits establish that an imputed religious opinion was one central reason for the police’s interest in her. See Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (statements by persecutor can establish nexus).”I was drawn to the evidence standard required for the nexus determination as to afuture condition or event. Substantial evidence is demanded by the Ninth Circuit touphold the BIA’s nexus determination in the asylum context. Then I looked to“see” what Kebede v. Ashcroft says about nexus and found that it was an indirectreference. That decision does not use the word “nexus” at all. “Rape "can support a finding of persecution," but "a petitioner alleging persecution must present some evidence, direct or circumstantial, of the persecutors motive." Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir.1996). The motive requirement is satisfied by evidence that political opinion was imputed to the petitioner. Id. That the alleged persecutor acted because of a petitioners familys political associations is sufficient. Id. at 960 (finding that a rape victim was eligible for asylum because evidence showed that "[h]er familys ties to the Somoza regime were well- known in her community").” At ¶ 12 “The IJ found that even if Kebedes testimony could be considered credible, Kebede failed to meet her burden of showing eligibility for asylum. The IJ determined that the Dergue soldiers did not rape Kebede "because of" her family background. The IJ erred in this regard, ignoring evidence that the soldiers linked their assault on1 The most prolific Circuit Court of Appeals is the Ninth Circuit. Here is a related resource usedby EOIR. It is an Asylum Handbook from the Seattle Immigration Court:http://www.justice.gov/eoir/vll/benchbook/resources/Seattle%20Asylum%20Handbook.htm Page 1 of 7
    • Kebede with her familys authority and position in the Selassie regime. During the rape, one soldier stated that Kebede was getting her due because "You had your time in the previous government." The IJ also erred in finding that the rape was an isolated incident, failing to recognize that this visit to Kebedes home was a part of a regular program of searches to which Kebedes family was subject.” At ¶ 13 “We reverse the IJs holding that Kebede failed to establish that she suffered past persecution.” At ¶ 14So, it appears to me that the Ninth Circuit in Kebede equated the “because of”factors with “nexus” back in 2004, and continues to do so in 2012. That is a trackrecord that seems to be one that we can count on at least for the near future.Following the chain backwards to 1996, and the next case I examined was Lopez-Galarza v. INS which held, in pertinent part: “that [the petitioners] ha[d] demonstrated past persecution sufficient to establish eligibility ... and ... [the court] ... remand[ed] to the BIA for a determination of whether [the petitioners] [we]re entitled to asylum as a matter of discretion.”While I don’t like the words “entitled” and “discretion” to be used in the samesentence because nobody is truly ever entitled to a favorable exercise of discretion(that’s an oxymoron), I do believe that I understand what the court meant. In thatparticular asylum case, the court determined that the petitioners, in that Petition forReview, had demonstrated prima facie eligibility for the relief sought. That meantthat the petitioner had established the right to make a claim to a qualified legalentitlement as a matter of law. In other words, the asylum-seeker at the very leastsatisfied the underlying threshold issue/question and therefore the case analysiscould proceed 2.However, the ultimate grant of asylum is an exercise of statutorily delegateddiscretionary authority in the power of the executive branch official within whosejurisdiction it lies at that time. Asylum is only a qualified entitlement which isavailable if one is not barred by law and thus legally disqualified or appropriatelydisenfranchised. Consider the persecutor bar or the issue of conscripting,commanding, or otherwise using child soldiers. Consider also, extrajudicial2 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) for the concept of multi-stage analysis.http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf Page 2 of 7
    • killings because even in a valid civil war, atrocities will not be ignored, condoned,or tolerated by the international community and certainly not by the United States.In the asylum realm, one has to make a credible and convincing evidentiaryshowing that establishes sufficient facts within the appropriate context to warrant afavorable exercise of discretion in order to gain this relief. That is a form ofNEXUS. The Seattle Immigration Court’s Asylum Handbook (see footnote above)discusses NEXUS under pre- and post- Real ID Act standards. Given that they arelocated within the Ninth Circuit, their compendium is naturally focused there.Here are some excerpts relating to some Armenian asylum-seekers’ cases: “Baghdasaryan v. Holder, 592 F.3d 1018 (9th Cir. 2010) (A77-993-598); reversing a denial of relief to a “whistleblower” who asserted a claim based on threats and physical violence with regard to his protesting illegal demands for money by family members “on behalf” of a powerful local political figure. Respondent was found to be credible. * * * * * Nexus/ Pre REAL ID. The circuit notes that because the application was filed before the effective date of the REAL-ID Act, nexus is evaluated according to the ‘on account of’ standard, rather than the ‘central reason’ standard.” * * * * * th “Movsisian v. Ashcroft, 395 F.3d 1095 (9 Cir. 2005) (A70-966-525); remanding for the BIA to state the grounds on which it was denying the motion to reopen; but affirming a finding that the alien had not established a well-founded fear of persecution on religious grounds; TASHIMA; (GOODWIN, concurring in part and dissenting in part on procedural grounds). * * * * * Nexus/ Motive Not Found. “[Alien] presented no evidence that the Armenian government would target him for conscription or punishment on account of his religion or other protected ground. See Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992) (holding that religious conscientious objectors did not establish religious persecution because they did not show that the government intended to persecute them for their beliefs).” (at 1097).” * * * * * th “Mamouzian v. Ashcroft, 390 F.3d 1129 (9 Cir. 2004); affirming IJ denial of withholding and CAT, but remanding upon finding petitioner statutorily eligible for asylum; REINHARDT.” Page 3 of 7
    • * * * * * Nexus/ Motive, Evidence Standard. “An applicant need only produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground. Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999) (en banc); see also Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir. 2001).” (at 1134).”Around about now, the reader may be wondering what the heck has any of this todo with EB-5 other than a mere mention of one buzz-word, namely “NEXUS”?Well, I’m gonna tell ya right now.EB-5 NEXUS demands a showing of reasonable connections and viablearguments. Such showing must in turn support assertions that the investments andbusiness decisions made by closely associated commercial enterprises so heavilyinfluence or outright determine each other’s success or failure that the EB-5investors should get credit for helping make possible job creation beyond their ownpayroll. Jobs beyond ones’ own payroll are specifically allowed as EB-5 indirectjobs within a Regional Center affiliated project. Those indirect jobs are naturallyspread throughout the overall project to which the EB-5 aliens’ funds have beencommitted via their affiliated Regional Center General Partner and/or RegionalCenter Investment Advisor who is for simple practical purposes de facto in chargeof the EB-5 alien investors’ participation in that overall Regional Center affiliatedproject.The EB-5 regulations specifically provide for the EB-5 aliens to get credit for alljob creation efforts of themselves plus their associates who affirmatively includepersons who are not seeking visas, foreign and domestic partners, and non-naturalpersons (i.e. institutional investors). As for employment creation allocation bymultiple investors, what is required under 8 CFR § 204.6(g)(2) is a “reasonableagreement made among the alien entrepreneurs in regard to the identification andallocation of such qualifying positions.” As long as such agreements would beviewed as conscionable under the usual judicial review standards, then USCIS hasno reason to challenge them. USCIS can examine the underlying job creationnexus or premise upon which such agreements are based.Once the EB-5 investors establish reasonable methodologies for determining thejob counts and the nexus for that particular Regional Center affiliated overallproject, which promotes regional economic growth as, desired by Congress whenit created the Pilot Program, USCIS should accept the predictions and then justcheck for evidence submitted to substantiate the results at a later stage. Page 4 of 7
    • Acceptance of a plan or premise is very different from actually making it come tofruition. I see this multistage process as having different evidentiary burdens atdifferent times along the way. Up front the applicant needs to make a fairly strongcase in its detailed plans which support its predictions based on sound premisesand assumptions in order to “put USCIS on notice” of what the project shallattempt to accomplish and how those efforts are expected to proceed and progress.Later, a “back-end burden of proof” calls for evidence to substantiate fulfillment ofthe statutorily required results and potentially explain any changes that happenedalong the way. While the reality is that there are various factors, events, andinfluences beyond one’s control and this is nothing new to the world of commerce,if a Regional Center were to make such huge miscalculations and missteps that itscompetence is in question or if a Regional Center were to make a habit of failing tofollow its own plans, then termination from participation should be the expectedend result.Congress created the Pilot Program with somewhat lofty goals for regionaleconomic improvements and job growth. Within that Pilot Program, Congressenvisioned a new player within the defined regional economic zone. That newplayer was intended to become a new part of the regional economic infrastructure.Congress named that new player as the Regional Center and affiliated it with theEB-5 Employment Creation Visa aliens as a domestically based helper. The effortsmade by and the results of those combined efforts need to be viewed in the propercontext. The Regional Centers are one new component in a specifically definedregional economy operating within self-defined parameters in terms of the “kindsof commercial enterprises” it seeks to supplement and support with the addition ofits alien investors’ funds comingled with its own and/or domestic investors’ funds.The alien investors are joining into the U.S. investors’ efforts or conversely, thealien investors may be leading the way and are being joined by U.S. investors.Whatever the exact approach will be is highly variable, fluid, dynamic, andflexible. As such, each application for designation will be unique and the decisionto designate a Regional Center must be made on a case-by-case basis.Additionally, such an adjudication is not easy or straight-forward. Mere approvalnever equates to success of the intended commercial enterprises nor guaranteesresults for its alien investors. Case-by-case adjudications do demand individualizedanalysis. That explains to a degree why the Regional Center Approval Notices areoften as long as Regional Center Denial Notices.Of particular interest (to me at any rate) in this next case excerpt is the SeventhCircuit’s statement that they were “.... unable to affirm the AAO’s conclusion[s] Page 5 of 7
    • .... because .... AAO’s decisions lack[ed] individualized analysis and.... [did]....not identify particular deficiencies in the substantial evidence submitted ...”Additionally, the Seventh Circuit Court found that AAO impermissibly appliedstatutory changes retroactively and contrary to the terms of a settlementagreement. You’ll have to read the actual case for that particular discussion.That last point above is quite important in the EB-5 Regional Center investmentcontext especially, in light of another case of particular importance, namely;Chang v. United States of America, 327 F. 3d 911 (9th Cir. 2003) 3 whichinvolved an attempt by INS to retroactively apply its newer interpretations asstated in the 1998 AAO EB-5 Precedents in a manner that undercut the reasonablereliance that a group of EB-5 aliens had to that point. Of course, in order toreasonably rely on its plan, the investors have to succeed with it. In the absence ofthe successful culmination of a particular plan, the actual results are whatultimately matter in determining whether or not, conditions will be lifted.Siddiqui also describes a jurisdictional mess where the old and newer statutes andregulations involved collided in such a way that the Court asked the differentAdministrative Agencies to sort of get together and fix this mess so that this caselands back in this Court. They did as asked but it just goes to the heart of anothermatter that has plagued immigration proceedings in the absence of a long overduerulemaking by USCIS, especially AAO, and better coordination between the keyplayers in these matters. Here is the promised excerpt, take it for what it is, namely,something to start or continue the conversation.Siddiqui v. Holder, 670 F.3d 736 (7th Cir. 2012) [originally: Nos. 09-3912, 10-1282 & 10-3221 (7th Circuit, January 12, 2012)]4 stated: “....... Mohsin H. Siddiqui, a native of Pakistan, appeals the denial of his legalization applications by the Administrative Appeals Office (“AAO”), the appellate body of the U.S. Citizenship and Immigration Services (“USCIS”). Siddiqui disputes the AAO’s finding that he failed to prove his continuous3 See: http://law.justia.com/cases/federal/appellate-courts/F3/327/911/625674/ and theassociated follow up challenge Spencer Enterprises Inc v. United States, No. 01-16391.(9th Cir,9/17/03) affirming District Court and clarifying jurisdiction, at: http://caselaw.findlaw.com/us-9th-circuit/1330636.html affirmed: Spencer et al. v. USA (E.D. Calif. 3/28/01) at:http://www.slideshare.net/BigJoe5/spencer-enterprises-eb5decision-district-court-20014 See: http://www.slideshare.net/BigJoe5/siddiqui-v-holder-et-al-7th-cir-11212-remand Page 6 of 7
    • residence in the United States and the AAO’s retroactive application of the definition of “conviction,” found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, to his 1991 felony. We are unable to affirm the AAO’s conclusion regarding Siddiqui’s failure to establish continuous residence because the AAO’s decisions lack individualized analysis and do not identify particular deficiencies in the substantial evidence submitted by Siddiqui. Further, we conclude that the AAO erred in applying IIRIRA’s definition to Siddiqui’s offense because Congress did not clearly express its intent to apply the definition retroactively to individuals such as Siddiqui, whose legalization applications would have been adjudicated prior to the enactment of IIRIRA if the government had not unlawfully refused in late 1980s to accept applications from applicants who had briefly left the country. We therefore vacate the removal order and remand so that the AAO can properly address the evidence in support of Siddiqui’s claim of continuous residence.”The steps and efforts required to demonstrate sufficient NEXUS will varysomewhat between different contexts but certain underlying principles remain thesame. Controversy already exists within EB-5. At present, that controversy is ill-defined and unfocused. The folks arguing are unclear as to what they are arguingabout. I feel that it is important that certain terms and parameters be explored andagreed upon in advance of reliance upon them. I will not attempt to answer anyspecific questions here. I only aim to bring them visibility and start theconversation. Here are some terms and issues to think about for EB-5, have fun!Reasonable Methodologies Deference to Prior DeterminationsReasonable Reliance Bait and SwitchUnrealistic Expectations Matter of Ho CompliantPlausible vs. Possible vs. Probable Business Plan“but for” vs. “because of” Econometric Model/MethodologyVerifiable Detail Economic AnalysisStatistically Valid Feasibility StudySound Judgment Market SurveyEstablished By vs. Imposed Upon Direct vs. Indirect JobsPreponderance vs. Specific Evidence Variables & AssumptionsMaterial Change vs. Materiality Input & OutputTiming of Commitment Verifiable & Reliable SourcesForms of Commitment Verification & SubstantiationTypes of EB-5 NEXUS Qualifying Employees & I-9 IssuesSubstantial Evidence Compliance with: ICE I-9 Audits, OSC,Pilot Program OCAHO, SEC, OFAC, IRS, OSHA, etc... Page 7 of 7