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Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 1 of 25 Page ID #:1
1 Benjamin L. Meeker (Cal. State Bar No. 204183)
LAW...
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administrative remedies available to compe...
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43. Pursuant to 28 U.S.C. § 1361, Defe...
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EXHIBIT 1
Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 14 of 25 Page ID #:14Department ofHomeland Security
U.S. Citizenship and...
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Benjamin Meeker <blm@blmeekerlaw.com>
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Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 19 of 25 Page ID #:19On Tue, Apr 26, 2016 at 7:27PM, USCIS Immigrant Inv...
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Ni v. Johnson et al., No. 16-cv-05526 (C.D. CA July 25, 2016) EB-5 Complaint for Mandamus and Declaratory Judgment.

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Ni v. Johnson et al., No. 16-cv-05526 (C.D. CA July 25, 2016) EB-5 Complaint for Mandamus and Declaratory Judgment.

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Ni v. Johnson et al., No. 16-cv-05526 (C.D. CA July 25, 2016) EB-5 Complaint for Mandamus and Declaratory Judgment.

  1. 1. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 1 of 25 Page ID #:1 1 Benjamin L. Meeker (Cal. State Bar No. 204183) LAW OFFICE OF BENJAMIN L. MEEKER 2 2131 Palomar Airport Road, Suite 218 Carlsbad, CA 92011 3 Tel: 949-940-6929 4 Fax: 760-820-9040 Email: blm@blmeekerlaw.com 5 Attorney for Plaintiff 6 FANNI 7 8 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 9 FANNI ) 10 11D, Block 3, Lianfeng Building ) II No. 28, Yutian Road ) Futian District, Shenzhen, China ) I2 ) Plaintiff ) Civil No.: I3 ) v. ) COMPLAINT FOR MANDAMUS AND I4 ) DECLARATORY JUDGMENT I5 JEH C. JOHNSON, Secretary ) U.S. Department of Homeland Security ) I6 245 Murray Lane, SW ) Washington, DC 20528-0075 ) I7 ) 18 LEON RODRIGUEZ, Director ) U.S. Citizenship and Immigration Services ) I9 20 Massachusetts Avenue, NW ) Washington, DC 20529-2090 ) 20 ) KATHY A. BARAN, Director ) 2I U.S. Citizenship and Immigration Services ) 22 California Service Center ) 24000 Avila Road, 2"d Floor, Room 2312 ) 23 Laguna Niguel, CA 92607 ) ) 24 NICHOLAS COLUCCI, Chief ) 25 Immigrant Investor Program Office ) U.S. Citizenship and Immigration Services ) 26 20 Massachusetts Avenue, NW ) Washington, DC 20529-2090 ) 27 ) JAMES B. COMEY, Director ) 28 Federal Bureau of Investigation ) 16-cv-05526 This is a strange and confusing case. . First of all, this investor owns 99% of the company however it is described as Regional Center project. . It is unclear which Regional Center is involved, there are several possibilities. . I do not see how multiple investors are "pooling" investments. . The arguments about how all problems stem from an "adjudication delay" fail because the priority date is still not current which means that the stated "wrongs" are imaginary and false. . Lastly, I believe that USCIS has never explained the meaning of its posted processing dates. I think it is "the length of time before an Officer begins the review process" but people think it is the time from filing to decision".
  2. 2. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 2 of 25 Page ID #:2 2 3 4 5 J. Edgar Hoover Building 935 Pennsylvania Avenue, NW Washington, DC 20535 Defendants ) ) ) ) ) ) 6 The Plaintiff, FAN NI, through undersigned counsel, complains of the Defendants, JEH C. 7 JOHNSON, Secretary, U.S. Department of Homeland Security; LEON RODRIGUEZ, Director, U.S. 8 9 10 11 12 13 14 15 16 17 Citizenship and Immigration Services ("USCIS"); KATHY A. BARAN, Director, USCIS California Service Center; NICHOLAS COLUCCI, Chief, USCIS Immigrant Investor Program Office; and JAMES B. COMEY, Director, Federal Bureau of Investigation, as follows: I. PRELIMINARY STATEMENT 1. This is a civil action to compel agency action unreasonably delayed, pursuant to 5 U.S.C. § 555(b) and § 706(1) of the Administrative Procedure Act ("APA"), and petition for mandamus relief, pursuant to 28 U.S.C. § 1361 of the Mandamus and Venue Act of 1962. 2. Plaintiff made a qualifying $500,000 investment and filed a Form I-526, Immigrant 18 Petition by Alien Entrepreneur, pursuant to Immigration and Nationality Act ("INA") § 203(b)(5), 8 19 U.S.C. § 1153(b)(5), however, the Defendants have refused or willfully failed to process or adjudicate 20 Plaintiffs Petition. 21 22 23 24 25 26 3. Defendants' delay has caused Plaintiffs $500,000 investment to remain at risk and has deprived her of the opportunity to become a lawful permanent resident of the United States and potentially recoup her investment. Moreover, the longer Plaintiff is forced to wait for an adjudication of her Petition, the longer her investment remains at risk and potentially subject to loss. 4. Plaintiff has made several (no fewer than five) attempts to have Defendants adjudicate her 27 Petition, including numerous case status requests. Defendants have refused to provide any substantive 28 information regarding when Plaintiff can expect a decision on her Petition. Plaintiff has no other 2
  3. 3. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 3 of 25 Page ID #:3 2 3 4 5 6 administrative remedies available to compel Defendants to act. Defendants' willful failure to adjudicate Plaintiffs Petition causes irreparable harm to Plaintiff by depriving her of the ability to pursue an employment-based, fifth-preference immigrant visa on the basis of her qualifying investment through the Immigrant Investor Program. 5. Defendants have continually refused or failed to perform statutory and regulatory duties 7 owed to the Plaintiff. Accordingly, Plaintiff is seeking mandamus relief arising out of the unlawful and 8 unreasonably delayed actions ofthe Defendants. 9 II. PARTIES 10 11 12 13 14 15 16 6. Plaintiff, Fan Ni, is a native and citizen of China. She currently resides in Shenzhen, China. She filed her Form 1-526, Petition by Alien Entrepreneur ("1-526 Petition"), with the USCIS California Service Center on October 31, 2014. See Exhibit 1. 7. Defendant, Jeh C. Johnson, is the Secretary of the United States Department of Homeland Security, whose office address is DHS, 245 Murray Lane, SW, Washington, D.C. 20528-0075. 8. Defendant, Leon Rodriguez, is the Director of USCIS, whose office address is USCIS, 20 17 Massachusetts Avenue, NW, Washington, D.C. 20529-2090. USCIS is the agency charged with, inter 18 19 20 21 22 23 alia, the adjudication of applications and petitions for benefits provided under the Immigration and Nationality Act, including immigrant petitions such as the Form 1-526 filed by Plaintiff. 9. Defendant, Kathy A. Baran, is the Director of the USCIS California Service Center ("CSC"), whose address is 24000 Avila Road, 2nd Floor, Room 2312, Laguna Niguel, CA 92677. 10. Defendant, Nicholas Colucci, is the Chief of the Immigrant Investor Program of USCIS, 24 whose office address is USCIS, 20 Massachusetts Avenue, NW, Washington, D.C. 20529-2090. 25 26 27 28 II. Defendant James B. Corney is the Director of the Federal Bureau of Investigation ("FBI"), whose office address is FBI, J. Edgar Hoover Building, 935 Pennsylvania Avenue, NW, Washington, D.C. 20535. As such, he is responsible for, inter alia, ensuring that a full criminal background check is 3
  4. 4. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 4 of 25 Page ID #:4 completed for each individual applying for permanent residence. Pub. L. 105-119, tit. I, Ill Stat. 2440, 2 2448-49 (1997). 3 4 5 12. Each Defendant is sued in his or her official capacity as offic~rs of the United States. Defendants Johnson, Rodriguez, Baran, and Colucci are responsible for, inter alia, the adjudication of applications and petitions for benefits provided under the Immigration and Nationality Act, including 6 7 8 9 10 11 12 13 immigrant petitions such as the Form I-526 filed by Plaintiff, pursuant to 8 U.S.C. § 1103, 8 U.S.C. § 1153,8 C.F.R. § 2.1, 8 C.F.R. § 103.l(a), and 8 C.F.R. § 204.5. III. JURISDICTION 13. Jurisdiction in this case is proper under 28 U.S.C. §§ 1331 and 1361, 5 U.S.C. § 701 et seq., and 28 U.S.C. § 2201 et seq. Relief is requested pursuant to said statutes. Specifically, this Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, which provides that "district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties ofthe United 14 15 States," and under 28 U.S.C. § 1361, which provides district courts with "original jurisdiction of any 16 action in the nature of mandamus to compel an officer or employee of the United States or any agency 17 thereof to perform a duty owed to the Plaintiff." Further, the Declaratory Judgment Act, 28 U.S.C. § 18 2201, provides that "[i]n a case of actual controversy within its jurisdiction ... any court of the United 19 20 21 States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." Review is 22 also warranted, and relief sought, under the APA, 5 U.S.C. § 701 et seq.,§ 702, § 706(1) and§ 555(b). 23 14. This action challenges the Defendants' procedural policies, practices, and failure to act, 24 not the discretionary grant or denial of individual petitions or applications for relief. Therefore, this 25 26 27 28 action is not subject to the jurisdiction-stripping provisions of5 U.S.C. § 70l(a)(2) and - 8 U.S.C. § 1252(a)(2)(B). Furthermore, under the terms of INA § I 153(b)(5), the decision on the immigrant petition for which mandamus is sought is not a discretionary determination. 4
  5. 5. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 5 of 25 Page ID #:5 2 3 4 5 IV. VENUE 15. Venue properly lies within the Central District of California in that a substantial part of the events or omissions relevant to this case occurred therein. 28 U.S.C. § 1391(e)(1). Specifically, Plaintiff's 1-526 Petition is being reviewed and will be adjudicated at the USCIS California Service Center in Laguna Niguel, California. In addition, defendant Baran maintains her primary office (i.e. 6 7 "resides") in the Central District of California. Ibid. 8 9 16. V. EXHAUSTION OF REMEDIES There are no administrative remedies available to the Plaintiff to redress the grievances 10 described in the Complaint, as multiple inquiries with Defendants have been made by Plaintiff 11 12 13 concerning the status of her 1-526 Petition, all to no avail. In fact, Plaintiff has made numerous follow up inquires with USCIS and the USCIS Ombudsman's office in an attempt to ascertain when USCIS would adjudicate the Petition. USCIS refuses to provide any time frame for adjudication. See Exhibit 2. 14 15 16 17. VI. STAUTORY AND REGULATORY BACKGROUND In 1990, Congress amended the Immigration and Nationality Act of 1965, allocating, inter 17 alia, 10,000 immigrant visas per year to foreign nationals seeking Lawful Permanent Resident ("LPR") 18 19 20 21 22 23 status on the basis of their capital investments in the United States. See generally the Immigration Act of 1990, Pub. L. No. 101-649, § 12l(b)(5), 104 Stat. 4978 (1990) (codified at 8 U.S.C. § 1153(b)(5)). Pursuant to the so-called "Immigrant Investor Program," foreign nationals may be eligible for an employment-based, fifth preference ("EB-5") immigrant visa if they have invested, or are actively in the process of investing, $1 million (or $500,000 in a high unemployment or rural area) in a qualifying for- 24 profit entity (such as a commercial enterprise created after November 29, 1990), and if their capital 25 26 27 28 investments will create or preserve at least ten (1 0) full-time, permanent jobs for qualified U.S. workers within the United States (namely, U.S. citizens, LPRs, asylees, or refugees). See 8 U.S.C. § 1 153(b)(5)(A)-(D); see also 8 C.F.R § 204.6(a)-G). The EB-5 regulations further provide that, in order to 5
  6. 6. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 6 of 25 Page ID #:6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 qualify as an "investment" in the EB-5 Program, foreign nationals must actually place their capital "at risk" for the purpose of generating a return, and that the mere intent to invest is not sufficient. See 8 C.F.R. § 204.60)(2). 18. In 1993, the Immigrant Investor Pilot Program ("Pilot Program") was established pursuant to the provisions of Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act. See Pub. L. No. 102-395, § 601, 106 Stat. 1828, 1874 (1992). The eligibility requirements for foreign national-investors under the Pilot Program are essentially the same as in the standard EB-5 investor program, whereby the foreign national-investor may be eligible for an EB- 5 immigrant visa on the basis of her capital investment of $1 million (or $500,000 in a high unemployment or rural area) in a qualifying for-profit entity that, in tum, creates or preserves at least ten (10) full-time, permanent jobs for qualified U.S. workers within the United States. See generally§ 601 of Pub. L. No. 102-395; 8 C.F.R. § 204.6(m)(1)-(9). Unlike the standard EB-5 investor program, however, the Pilot Program provides for investments that are affiliated with an economic entity (public or private) known as a "Regional Center." Investments made through USCIS-designated Regional Centers allow for a less restrictive job creation requirement based upon the creation of both "direct" and "indirect" jobs. See § 601(a)-(c) of Pub. L. No. 102-395; see also 8 C.F.R. § 204.6(e), 0)(4)(iii), (m)(7)(ii). Since its enactment in 1992, Congress has regularly reauthorized the Pilot Program, and in September 2012, Congress reaffirmed its commitment to the Regional Center model of investment and 22 job creation by providing a three-year reauthorization of the regional center program through September 23 2015 and removing the word "pilot" from § 601 of Pub. L. 102-395. SeeS. 3245, 112'h Cong. (2012). 24 Most recently, the program has been reauthorized until September 30, 2016. 25 26 27 28 19. Despite this one-year extension, legislation has been proposed in Congress that would retroactively raise the minimum investment threshold for an EB-5 filing. If such legislation were enacted, Plaintiff's investment could be deemed as inadequate and her I-526 Petition could be denied. 6
  7. 7. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 7 of 25 Page ID #:7 1 2 3 4 5 20. For over twenty years, both the standard and Regional Center model immigrant investor programs have promoted Congress's intent to facilitate the immigration of foreign nationals whose capital investments into the U.S. economy would promote economic growth by improving regional productivity and creating jobs. See Pub. L. No. 102-395, § 60 I(a); see also USCIS May 30, 2013 EB-5 Adjudications Policy Memorandum (stating that "[t]he EB-5 program is based on our nation's interest in 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 promoting the immigration of people who invest their capital in new, restructured, or expanded businesses and projects in the United States and help create or preserve needed jobs for U.S. workers by doing so."). USCIS administers both the standard and Regional Center model immigrant investor programs. 21. In order to become an LPR through both the standard and Regional Center model program, a foreign national must initially file with USCIS a Form I-526, Immigrant Petition by Alien Entrepreneur, which, if approved, makes the foreign national eligible to receive an employment-based, fifth preference immigrant visa. See generally 8 U.S.C. § 1153(b)(5). Upon approval of the I-526 Petition, the foreign national must file a Form 1-485, Application to Adjust Status (if he or she is located in the United States), or a Form DS-230, Application for Immigrant Visa and Alien Registration (if he or she is located outside the United States). See generally 8 U.S.C. § 1201 (provisions relating to the issuance of entry documents), 8 U.S.C. § 1255 (provisions relating to adjustment of status). Upon adjustment of status or admission on an EB-5 immigrant visa, the foreign national is granted two years of conditional permanent resident status, provided that the foreign national is not otherwise ineligible for admission into the United States. See generally 8 U.S.C. § 1182 (provisions relating to excludable aliens). Finally, at the conclusion of the two-year conditional period, the foreign national must file a Form 1-829, Petition to Remove the Conditions on his or her LPR status. If the foreign national has fulfilled the EB-5 requirements, then the conditions will be removed and the foreign national will be an unconditional LPR. See generally 8 U.S.C. § 1186b (provisions relating to conditional permanent 7
  8. 8. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 8 of 25 Page ID #:8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 resident status for certain alien entrepreneurs, spouses, and children). 22. According to 8 U.S.C. §1571(b), "[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section I 184(c) of this title should be processed not later than 30 days after the filing ofthe petition." A. 23. VII. STATEMENT OF FACTS Background on the Investment Project and Plaintiffs Investment The Plaintiff is a native and citizen of China who has filed an I-526 Petition seeking an employment-based, fifth preference immigrant visa. The Plaintiffs petition is predicated on her capital investment of $500,000 into Golden State RCFE 1, LLC (the "Company") a New Commercial Enterprise which was formed to provide funding for the development of a Residential Care Facility for the Elderly ("RCFE") in Murrieta, California (the "Project"). Plaintiff owns a 99% share in .the Company. Plaintiffs investment in the Company was made pursuant to the standard EB-5 immigrant investor program. The development cost of the Project is anticipated to be approximately $505,000, and the Project is projected to generate substantial benefits for the regional economy, including 10 new direct jobs. 24. Plaintiffs $500,000 investment is controlled by the Company for use in the Project and remains at risk. 25. The delay in adjudication of Plaintiffs 1-526 Petition (which correspondingly delays the removal of her conditions) could result in Plaintiff being unable to remove conditions on her residence, which could result in Plaintiff being removed from the U.S. Also, the delay in adjudication is negatively 24 affecting the Project's viability due to ongoing increases in real property and construction costs. 25 26 27 28 26. Because of the Defendants' unreasonable delay in adjudicating the 1-526 Petition, Plaintiffs EB-5 funds are in the control of the Company, remain at risk, and Plaintiff has been unable to obtain conditional permanent residency or proceed to the 1-829 Petition stage to apply for lawful 8 The priority date is still not current! This is nonsensical! I-526 was filed on October 31, 2014, but the Visa Bulletin cuts off at Feb. 15, 2014. How is this a Regional Center Project if this investor owns 99%? Why is it an RC project? Nope!
  9. 9. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 9 of 25 Page ID #:9 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 permanent residency. The delay has prohibited Plaintiff from moving forward with the immigration process and potentially recouping her investment after obtaining lawful permanent resident status. The delay has caused Plaintiffs funds to remain at risk pending the outcome ofa decision by USCIS. 27. On August 11 and 15, 2014, Plaintiff sent two wires to the Company's escrow account totaling $500,050. At that time, Plaintiffs investment became active and irrevocably committed in accordance with EB-5 regulations and remains at risk due to the adjudication delay. 28. On October 31, 2014, Plaintiff, through her immigration couns~l, filed her Form I-526, Immigrant Petition by Alien Entrepreneur, along with substantial documentation relating to the Project and her lawful source and path of investment funds. As of July 14, 2016, USCIS processing times indicate a wait ofapproximately 16.6 months to adjudicate I-526 Petitions. See Exhibit 3. 29. At present, it has been more than 20 months after the initial filing of Plaintiffs I-526 Petition, and USCIS has yet to adjudicate Plaintiffs Petition or provide any substantive feedback regarding when it will be adjudicated. 30. The Defendants' delay in adjudicating Plaintiffs I-526 Petition has created significant hardship for her. For example, and without limitation, as a proximate result of the delay in adjudication, Plaintiff has incurred financial hardship by having her investment capital remain at risk indefinitely, as Plaintiff cannot potentially recoup her funds until the approval of her I-829 Petition. Additionally, the Defendants' delay in adjudicating Plaintiffs I-526 Petition has potentially jeopardized the future immigration prospects of Plaintiff in the event that the I-526 Petition is denied. Accordingly, the Defendants' delay in adjudicating Plaintiffs I-526 Petition has relegated Plaintiff to remain in a state of administrative limbo, which precludes her from coordinating her future personal and professional life. VIII. SUMMARY OF CLAIMS 31. Defendants' refusal to act in this case is, as a matter of law, arbitrary and not in accordance with the law and processing time published by USCIS. Plaintiff has committed substantial 9 No it doesn't. Not for this reason!
  10. 10. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 10 of 25 Page ID #:10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 time and resources preparing and filing her I-526 Petition. In spite of these efforts, however, Defendants have willfully and unreasonably delayed adjudicating Plaintiffs I-526 Petition, and have not provided any meaningful feedback regarding case status, beyond the form language contained in USCIS's status updates indicating that the agency cannot provide Plaintiff with a completion date. USCIS has not provided any written decision or further written update regarding Plaintiffs I-526 Petition, thus leaving Plaintiff in a state of administrative limbo. 32. Plaintiff has been, and continues to be, irreparably harmed by the delay in adjudicating her I-526 Petition, which has been pending with USCIS well in excess of the processing time on which she reasonably relied when she made her investment and the processing times anticipated by Congress. 33. Plaintiff has been relegated to a form of administrative limbo in which she is unable to obtain an employment-based, fifth preference immigration visa, and, thereafter, conditional lawful permanent resident status. 34. Plaintiff has irrevocably committed significant financial capital of over $500,000 for the purpose of qualifying for an EB-5 immigrant visa, funds to which Plaintiff has not had access for almost two years and which will continue to remain unavailable indefinitely pending USCIS's adjudication of her Petition. 35. The Defendants' protracted delay in adjudicating Plaintiffs I-526 Petition clearly contravenes Congress's intent that immigrant benefit applications be adjudicated "not later than 180 days after the initial filing ofthe application." 8 U.S.C. § 1571(b). 36. 37. IX. CAUSES OF ACTION Count I (Violation ofAdministrative Procedure Act) Plaintiffincorporates paragraphs 1 through 35 as if fully stated in this Count. Defendants' practices, policies, interpretations of law, conduct and failures to act violate 10
  11. 11. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 11 of 25 Page ID #:11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Administrative Procedure Act, as the alleged agency action is: a. "unlawfully withheld or unreasonably delayed," under 5 U.S.C. § 706(1); b. not concluded "[w]ith due regard for the convenience and necessity of the parties. .. and within a reasonable time," under 5 U.S.C. § 555(b); c. "arbitrary, capricious and an abuse of discretion or otherwise not in accordance with law," under 5 U.S.C. § 706(2)(A); and d. "without observance of procedures required by law," under 5 U.S.C. § 706(2)(D). 38. As a result, Plaintiffhas suffered irreparable harm entitling her to relief. Count II (Petition for Mandamus) 39. Plaintiff incorporates paragraphs 1through 35 as if fully stated in this Count. 40. Defendants are charged with a duty to administer and enforce the Immigration and Nationality Act, pursuant to 8 U.S.C. § 1103. Defendants Johnson, Rodriguez, Baran and Colucci have sole responsibility for the adjudication of applications and petitions for benefits provided under the Immigration and Nationality Act, including immigrant petitions such as the Form I-526 filed by Plaintiff pursuant to 8 U.S.C. § 1103, 8 U.S.C. § 1153, 8 C.F.R. § 2.1, 8 C.F.R. § 103.l(a), and 8 C.F.R. § 204.5. Upon information and belief, Defendant Corney has failed to conduct and/or provide the results of the requisite criminal background check relating to Plaintiffs I-526 Petition. Defendants have willfully and unreasonably delayed and refused to perform their clear, non-discretionary duties. 41. Plaintiff has a clear right to have her 1-526 Petition adjudicated pursuant to the Immigration and Nationality Act. 42. Plaintiff has no administrative remedies available to compel Defendants to perform their statutory and regulatory duties. Plaintiffs Petition has been pending well beyond reasonable processing times. 11
  12. 12. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 12 of 25 Page ID #:12 2 3 4 5 6 7 43. Pursuant to 28 U.S.C. § 1361, Defendants must be compelled to discharge their statutory duties owed to Plaintiff so that Plaintiff may be promptly informed of the outcome ofher 1-526 Petition. Count III (Equal Access to Justice Act) 44. Plaintiff incorporates paragraphs I through 35 as if fully stated in this Count. 45. If Plaintiffprevails, she will seek attorney's fees and costs, pursuant to 5 U.S.C. § 504 and 8 28 U.S.C. § 2412. 9 X. RELIEF REQUESTED 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46. WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays that the Defendants be cited to appear herein and that, upon due consideration, the Court enter an order: -a. granting Plaintiff a Writ of Mandamus and order under the APA requiring Defendants to adjudicate the pending 1-526 Petition within 30 days; b. awarding Plaintiff reasonable attorney's fees; c. granting such other relief at law and in equity as justice may require; and d. directing that this Court retain jurisdiction over this matter to ensure Defendants' compliance with this Court's order. Respectfully submitted this 25111 day of July, 2016. Bycounsel, ~ Benjamin L. Meeker (Cal. State Bar No. 204183) LAW OFFICE OF BENJAMIN L. MEEKER 2131 Palomar Airport Road, Suite 218 Carlsbad, CA 92011 T: 949-940-6929 F: 760-820-9040 E: blm@blmeekerlaw.com Counselfor the Plaint{[[ 12
  13. 13. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 13 of 25 Page ID #:13 EXHIBIT 1
  14. 14. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 14 of 25 Page ID #:14Department ofHomeland Security U.S. Citizenship and Immigration Services Form 1-797C, Notice of Action jTIDS NOTICE DOES NOT GRANT ANY IMMIGRATION STATUS OR BENEFIT. NOllCE T'I'PE Receiot CASE T'I'PE 1-526. Immigrant Petition bv Alien Entreoreneur NOllCE DATE November 04. 2014 USCIS ALIEN NUMBER RECEIPT NUMBER RECEIVED DATE PAGE WAC 1590039549 October 3 I 2014 I of 1 FANNI C/0 SARA ROSENBLIT DAVID HIRSON PA!MNEftfifLP 8 CHESHIRE COURT NEWPORT BEACH, CA 92660 IIIJIIIJIItl11llll1lll11li•Jl111111 llllllllll'l11 llllltlltltlllll NAIIE AND IIAILING ADDRESS The above case has been received by our office and is in process. PAYI1ENT INFORMATION: Application/Petition Fu: Biometrics Fcc: Total Amounl Rccrind: Tolnl Balance Due: $1 .500.00 $0.00 $1.500.00 so.oo Please verify your personal infonnation listed above and immediately notify the USCIS National Customer Service Center at the phone number listed below if there are any changes. Please note that if a priority date is printed on this notice, the priority does not renect earlier retained priority dates. Ifyou have questions about possible immigration benefits and services, filing infonnation, or USCIS fonns, please call the USCIS National Customer Service Center (NCSC) at 1-800-375-5283. If you are hearing impaired, please call the NCSC TOO at 1-800-767-1833. Please also refer to the USCIS website: www.uscis.gov. Ifyou have any questions or comments regarding this notice or the status ofyour case, please contact our customer service number. You will be notified separately about any other case you may have filed. USCIS Office Address: USCIS Californ ia Service Center P.O. Box 301 I I Laguna Niguel, CA 92607-0 Ill Form t-797C Lockbox (LBl 01/02/12 Y USCJS Customer Service Number: (800)375-5283 ATIORNEY COPY li 11111~1~ m~i·'"~~~~ iiiiiiiiiiiiiii -iiiiiiiiiiiiiii -iiiiiiiiiiiiiii -
  15. 15. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 15 of 25 Page ID #:15 EXHIBIT2
  16. 16. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 16 of 25 Page ID #:16 Benjamin Meeker <blm@blmeekerlaw.com> Case Status Request-- Ni, Fan -- WAC1590039549 **Writ of Mandamus** 1 message Benjamin Meeker <blm@blmeekerlaw.com> To: uscis.immigrantinvestorprogram@uscis.dhs.gov Thu, Jun 30,2016 at 10:17 AM Case Status Request-- Ni, Fan-- WAC1590039549 **Writ of Mandamus** I am litigation counsel for EB-5 immigrant investor Ni, Fan (WAC1590039549). My client's 1-526 Petition was received by USCIS on October 31 , 2014 (20 months ago) and is well beyond current processing times. My client has authorized me to prepare and file a writ of mandamus in federal court requesting that USCIS show cause as to why the petition has not yet been adjudicated. This email is my client's final attempt to informally resolve this matter. Thank you for your immediate attention. BEN MEEKER Please consider the environment before printing this email. CONFIDENTIALITY NOTICE: The information contained in this transmission is intended solely for use by the persons or entities identified above. This transmission contains privileged and confidential information including information which may be protected by the attorney-client and/or work product privileges. If you are not the intended recipient, be aware that any disclosure, copying, distribution or other use of the contents of this transmission is prohibited. If you have received this transmission in error, please notify us by email at blm@blmeekerlaw.com and discard this transmission without making a copy or saving it in any fashion. Thank you.
  17. 17. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 17 of 25 Page ID #:17 Benjamin Meeker <blm@blmeekerlaw.com> Fwd: Response: Response: Response: Response: Case Status Request--Ni, Fan-- WAC1590039549 **FOLLOW UP #3** 1 message Nima Korpivaara <nimak@hirsonimmigration.com> To: Benjamin Meeker <blm@blmeekerlaw.com> Tue, Jun 21 , 2016 at 7:56PM 0/VI 0 H IRSON & PIIRTNERS.LLP Nima Korpivaara IPartner 1122 Bristol Street, Costa Mesa, CA 92626 Direct: +1 949 383-5363 Main: +1 949 383-5358 Cell: +1 310 435-1085 Fax: +1 949 383-5368 Email: nimak@hirsonimmigration.com Website: Hirsonlmmigration.com On June 21 , 2016 at 7:54:49 PM, Taylor Bianchino (tbianchino@hirsonimmigration.com) wrote: Begin forwarded message: From: USCIS Immigrant Investor Program <USCIS.ImmigrantlnvestorProgram@ uscis.dhs.gov> Date: May 25, 2016 at 5:56:02 PM PDT To: Taylor Bianchino <tbianchino@hirsonimmigration.com> Cc: Nima Korpivaara <nimak@hirsonimmigration.com> Subject: Response: Response: Response: Response: Case Status Request--Ni, Fan-- WAC1590039549 **FOLLOW UP #3** Dear Taylor Bianchino, This email is to notify you that receipt WAC1590039549 is currently assigned to a USCIS Officer. We appreciate your patience as we work on your case. While our processing times currently are beyond what we would like, USCIS has taken steps to increase capacity and is striving to ensure our commitment to our customers is being met. Please click on "IPO Processing Dates" on the USCIS Processing Time Information page for the current Form 1-526 processing time. Sincerely,
  18. 18. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 18 of 25 Page ID #:18 Immigrant Investor Program Office U.S. Citizenship and Immigration Services MS0014 From: Taylor Bianchino [mailto:tbianchino@hirsonimmigration.com] Sent: Wednesday, May 25, 2016 8:12PM To: USCIS Immigrant Investor Program Cc: Nima Korpivaara Subject: Re: Response: Response: Response: case Status Request--Ni, Fan-- WAC1590039549 **FOLLOW UP #3** Dear Officer, The below listed petition is beyond current processing time. The petition was received by USCIS on 10/31/2014. Please advise on the case status and adjudicate as soon as possible. Petitioner: - Ni, Fan Receipt: WAC1590039549 Attorney of Record: Nima Korpivaar Kind Regards, Taylor Bianchino 0/V I0 HIRSON & PIIRTNERS.LLP Taylor Bianchino 1Supervising Paralegal 1122 Bristol Street, Costa Mesa, CA 92626 Direct: +1 949 383-5357 Main: +1 949 383-5358 Fax: +1 949 383-5368 Email: tbianchino@hirsonimmigration.com Website: Hirsonlmmigration.com
  19. 19. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 19 of 25 Page ID #:19On Tue, Apr 26, 2016 at 7:27PM, USCIS Immigrant Investor Program <USCIS. lmmigrantlnvestorProgram@uscis.dhs.gov> wrote: Dear Taylor Bianchino, This email is to notify you that receipt WAC1590039549 is currently assigned to a USCIS Officer. We appreciate your patience as we work on your case. While our processing times currently are beyond what we would like, USCIS has taken steps to increase capacity and is striving to ensure our commitment to our customers is being met. Please click on "IPO Processing Dates" on the USCIS Processing Time Information page for the current Form 1-526 processing time. As a reminder, you may check the status of your pending Form 1-526 at any time through My Case Status. Sincerely, Immigrant Investor Program Office U.S. Citizenship and Immigration Services MS0014 From: Taylor Bianchino [mailto:tbianchino@hirsonimmigration.com] Sent: Monday, April 25, 2016 1:26PM To: USCIS Immigrant Investor Program Cc: Nima Korpivaara Subject: Re: Response: Response: Case Status Request--Ni, Fan--WAC1590039549 **FOLLOW UP #2** Dear Officer, The below listed petition is beyond current processing time. The petition was received by USCIS on 10/31/2014. Please advise on the case status and adjudicate as soon as possible. Petitioner: - Ni, Fan Receipt: WAC1590039549 Attorney of Record: Nima Korpivaara
  20. 20. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 20 of 25 Page ID #:20 Kind Regards, Taylor Bianchino 0/V I D HIRSON & PARTN(:RS.LLP Taylor Bianchino 1Supervising Paralegal 1122 Bristol Street, Costa Mesa, CA 92626 Direct: +1 949 383-5357 Main: +1 949 383-5358 Fax: +1 949 383-5368 Email: tbianchino@hirsonimmigration.com Website: Hirsonlmmigration.com On Thu, Mar 24, 2016 at 1:34PM, USCIS Immigrant Investor Program <USCIS. lmmigrantlnvestorProgram@uscis.dhs.gov> wrote: Dear Taylor Bianchino This email is to notify you that receipt WAC1590039549 is currently assigned to a USCIS Officer. We appreciate your patience as we work on your case. While our processing times currently are beyond what we would like, USCIS has taken steps to increase. capacity and is striving to ensure our commitment to our customers is being met. Please click on "IPO Processing Dates" on the USCIS Processing Time Information page for the current Form 1-526 processing time. As a reminder, you may check the status of your pending Form 1-526 at any time through My Case Status. Sincerely, Immigrant Investor Program Office U.S. Citizenship and Immigration Services
  21. 21. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 21 of 25 Page ID #:21 MS0014 From: Taylor Bianchino [mailto:tbianchino@hirsonimmigration.com] Sent: Wednesday, March 23, 2016 2:57 PM To: USCIS Immigrant Investor Program Cc: Nima Korpivaara Subject: Re: Response: Case Status Request--Ni, Fan--WAC1590039549 **FOLLOW UP* * Dear Officer, The below listed petition is beyond current processing time. The petition was received by USCIS on 10/31/2014. Please advise on the case status and adjudicate as soon as possible. Petitioner: - Ni, Fan Receipt: WAC1590039549 Attorney of Record: Nima Korpivaara Kind Regards, Taylor Bianchino 0/V I D H IR S O N & P/FHNERS .LLP Taylor Bianchino 1 Supervising Paralegal 1122 Bristol Street, Costa Mesa, CA 92626 Direct: +1 949 383-5357 Main: +1 949 383-5358 Fax: +1 949 383-5368 Email: tbianchino@hirsonimmigration.com Website: Hirsonlmmigration.com On Sun, Jan 24, 2016 at 7:29PM, USCIS Immigrant Investor Program <USCIS. lmmigrantlnvestorProgram@uscis.dhs.gov> wrote: Dear Taylor Bianchino This email is to notify you that receipt WAC1590039549 is currently assigned to a USClS Officer. We appreciate your patience as we work on your case.
  22. 22. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 22 of 25 Page ID #:22 While our processing times currently are beyond what we would like, USCIS has taken steps to increase capacity and is striving to ensure our commitment to our customers is being met. Please click on "IPO Processing Dates" on the USCIS Processing Time Information page for the current Form 1-526 processing time. As a reminder, you may check the status of your pending Form 1-526 at any time through My Case Status. Sincerely, Immigrant Investor Program Office U.S. Citizenship and Immigration Services MS0014 From: Taylor Bianchino [mailto:tbianchino@hirsonimmigration.com] Sent: Friday, January 22, 2016 2:49 PM To: USCIS Immigrant Investor Program Cc: Nima Korpivaara Subject: Case Status Request--Ni, Fan--WAC1590039549 Dear Officer, The below listed petition is beyond current processing time. The petition was received by USCIS on 10/31/2014. Please advise on the case status and adjudicate as soon as possible. Petitioner: - Ni, Fan Receipt: WAC1590039549 Attorney of Record: Nima Korpivaara Kind Regards, Taylor Bianchino Taylor Bianchino 1Supervising Paralegal 1122 Bristol Street, Costa Mesa, CA 92626
  23. 23. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 23 of 25 Page ID #:23Direct: +1 949 383-5357 0/VI 0 H IRSON Main: +1 949 383-5358 & PIIRTNERS,LLP Fax: +1 949 383-5368 Email: tbianchino@hirsonimmigration.com il ~ Ni tm Website: Hirsonlmmigration.com
  24. 24. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 24 of 25 Page ID #:24 EXHIBIT 3
  25. 25. Case 2:16-cv-05526 Document 1 Filed 07/25/16 Page 25 of 25 Page ID #:25 U.S. Citizenship and Immigration Services Home I Espanol l Site Map Search li*!i§ii HJIU!S EWS RESO! RCES l.iVS Ot:TRE:CJ I .B< H.T L:S j USCIS Processing Time Information Instructions on Using the Charf Print This Page Back USCIS Processing Time Information for the Immigrant Investor Program Office Below is a chart that shows the form number, form name and processing times for the following forms that are processed by the Immigrant Investor Program Office (IPO). Find the particular form numb~r (in the left column) or form name (in the center column) in which you are interested. In the right column you will find a timeframe in months representing the average processing time for that form type. Please note some cases may take longer to process. we offer a variety of services after you file. For a Form 1·526 you can check the status or your case online or email USCIS.ImmigrantlnvestorProgram@uscis.dhs.gov if your Form 1-526, Form 1-829, or Form 1-924 is beyond the stated processing timeframe. Average Processing Times for Immigrant Investor Program Office as of: May 31 , 201 6 r-'-- - - - - - - - - - - - - - - - -·-·-----·-·-·----- -----------..---·-----··- ··-·-----..---------- ------·-·------·- - COBS ,,.. Aa OI • ,. f • (. 1-526 Immigrant Petition By Alien Entrepreneur For use by an entrepreneur who wishes to immigrate to the United 16.6 Month(s) States 1-829 Petition by Entrepreneur to Remove Conditions Removal of lawful permanent resident conditions (immigrant investors) 20.1 Month(s) 1·924 Application For Regional Center Under the Immigrant Investor 1924 -Application For Regional Center Under the Immigrant Investor 9.9 Month(s) Pilot Program Pilot Program L Print This Page Back Last Updated:July 14, 2016 ---------- ·----------------------------· ,.: ! ..,

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