[00:00:01] Speaker 01: Case number 22-5313 et al. [00:00:04] Speaker 01: Adrian Ducosta et al. [00:00:06] Speaker 01: et al. [00:00:07] Speaker 01: versus Immigration Investor Program Office et al. [00:00:10] Speaker 01: Mr. Blais for the Ducosta et al. [00:00:12] Speaker 01: et al. [00:00:12] Speaker 01: Mr. Banas for the Daga et al. [00:00:14] Speaker 01: et al. [00:00:15] Speaker 01: Mr. Goldsmith for the Appellees. [00:00:18] Speaker 01: All right, Mr. Blais. [00:00:19] Speaker 02: Good morning. [00:00:28] Speaker 02: May it please the court. [00:00:29] Speaker 02: My name is Jesse Bless, and I have the distinct honor of representing Adrian and Jay DeCosta in this matter. [00:00:33] Speaker 02: We'll be asking this court to reverse the decision of the district court and send it back for a decision on the pleadings. [00:00:38] Speaker 02: Excuse me, the merits. [00:00:39] Speaker 02: This is about the pleadings. [00:00:41] Speaker 02: The pleadings that are under a notice requirement. [00:00:44] Speaker 02: In our complaint, set forth a plausible case for unreasonable delay under the administrative procedure. [00:00:50] Speaker 02: And in fact, these cases are usually guided by a set of factors under this or someone's decision. [00:00:57] Speaker 02: The district court found that we had satisfied two out of the relevant five. [00:01:06] Speaker 02: We lost three to two, I suppose. [00:01:07] Speaker 02: But the real error here was that the resolution of facts, we decided against our case. [00:01:14] Speaker 02: I mean, against our side. [00:01:16] Speaker 02: It was resolved in favor of the moving party. [00:01:21] Speaker 02: And under a 12-B-6 standard, that's not appropriate. [00:01:24] Speaker 02: And in fact, [00:01:25] Speaker 05: What facts do you think were resolved by the district court? [00:01:28] Speaker 02: Well, that they had been following a first in, first out methodology under their purported rule. [00:01:36] Speaker 05: They take judicial notice of that, correct? [00:01:39] Speaker 05: And the district court's entitled to take judicial notice? [00:01:41] Speaker 02: Well, you know, I don't know if you can make judicial notice of that. [00:01:45] Speaker 02: You know, he cited to a website that they had where they purport to present their rule of reason, their visa availability approach. [00:01:53] Speaker 02: We put forth evidence that they didn't follow it, and it's a resolution fact. [00:01:58] Speaker 05: I mean, that first fact. [00:01:59] Speaker 05: Well, whether they followed it or not, I think, is a factual question. [00:02:02] Speaker 02: That is true. [00:02:02] Speaker 05: But if it's not subject to question, I think that there's been a pretty long-standing practice of relying on public-facing agency websites as being not subject to reasonable dispute. [00:02:22] Speaker 05: And why is that subject to reasonable dispute if the agency is representing on a public-facing website? [00:02:29] Speaker 05: This is how we do it. [00:02:31] Speaker 05: Why can't that be taken into account? [00:02:32] Speaker 02: Sure. [00:02:33] Speaker 02: Let me break that down. [00:02:36] Speaker 02: The first fact factor is really two-part. [00:02:41] Speaker 02: Is there a rule that is reasonable? [00:02:44] Speaker 02: And it's not reasonable if it's not being followed. [00:02:47] Speaker 05: No, I understand if it's not being followed, I think you would have a factual issue. [00:02:50] Speaker 05: But the rule of reason itself, which is based on the industry practice as explicated on their website, why can't the court take judicial notice of that? [00:02:59] Speaker 05: So that's not fact-finding. [00:03:00] Speaker 05: That's taking judicial notice. [00:03:01] Speaker 02: That's correct. [00:03:02] Speaker 02: And that's not what we're disputing. [00:03:03] Speaker 02: We're not disputing that they purported to go forward with a visa availability approach. [00:03:08] Speaker 02: Our facts were that they weren't following it and had not followed it in this instance. [00:03:12] Speaker 06: And your facts, so you're saying as a matter of pleading, [00:03:16] Speaker 06: You've not asserted that they use first in, first out as applied to available, where there are available visas. [00:03:26] Speaker 06: You assert that they've done something other than that in practice. [00:03:30] Speaker 06: And where specifically are the allegations of that? [00:03:35] Speaker 02: Right. [00:03:36] Speaker 02: So those allegations were, and I have it, I don't know if you want the sites. [00:03:44] Speaker 06: I'd like the JA pages. [00:03:51] Speaker 02: We only have every appellant's appendix, the AP. [00:03:56] Speaker 06: I have your appendix. [00:03:58] Speaker 06: Yes. [00:03:59] Speaker 06: Yeah. [00:03:59] Speaker 06: And it has the complaint. [00:04:01] Speaker 06: And so I'm wondering which paragraphs of the complaint raise that. [00:04:05] Speaker 02: Right. [00:04:06] Speaker 02: So if you go forward, so there was 92. [00:04:11] Speaker 06: Paragraph 92. [00:04:11] Speaker 06: Yes. [00:04:15] Speaker 06: Which says, plaintiffs invested at least $500,000. [00:04:18] Speaker 02: Oh, sorry. [00:04:19] Speaker 02: I apologize. [00:04:22] Speaker 02: Let me do a better job here. [00:04:23] Speaker 02: 96, 97, 149, and 152. [00:04:41] Speaker 06: They've approved thousands of later filed I-26s of other investors and including other investors in the same commercial enterprise. [00:04:54] Speaker 06: I guess the question is how does that, so there may be later filed I-52 petitions as to which there are visa availabilities that don't apply to your client and that would [00:05:08] Speaker 06: legitimately according to their statement of what their policy is, that would be, this isn't with their policy. [00:05:14] Speaker 02: So that would be incidences. [00:05:15] Speaker 02: If they had been approving later file. [00:05:18] Speaker 06: Well, they can be later file. [00:05:19] Speaker 06: They're doing the FIFO, but as conditioned by available visas. [00:05:25] Speaker 06: And so if there are people in an area where there are more available visas, they're going to prioritize doing that over older, where there may be fewer visas. [00:05:35] Speaker 02: Sure. [00:05:35] Speaker 02: But in this instance, our visas were available. [00:05:38] Speaker 02: they were always available. [00:05:39] Speaker 02: And that's the distinction. [00:05:40] Speaker 02: So we, I'm sorry. [00:05:42] Speaker 05: Wouldn't you have to allege that other people from the same country who filed after your clients were getting approved before your client, but you didn't allege anything about what countries these other visas that were getting educated first were coming from. [00:05:57] Speaker 02: Let me, let me just take a step back. [00:05:58] Speaker 02: So it's not just, it's rest of the world. [00:06:00] Speaker 02: And then there are only a couple of backlogged countries. [00:06:04] Speaker 02: China, China, India, um, [00:06:06] Speaker 02: So if your rest of the world, South Africa's rest of the world, you would be... Is that... I'm sorry. [00:06:12] Speaker 05: My understanding of what's on the website is that they look at the country's availability and they take that into account first. [00:06:22] Speaker 05: Where is it available? [00:06:23] Speaker 05: And then within each country, they do a FIFO method. [00:06:27] Speaker 02: It's really visa availability by the... Visa votes are published by the Department of State each month. [00:06:33] Speaker 02: by country so it's not if you were subject to it and the reason there's backlogs is because there's a per country cap but South Africa would not fall in this entire proceeding at the time they file until today except for that brief period in the lapse there were visas available for Asian to cost [00:06:52] Speaker 02: They were never available. [00:06:54] Speaker 06: I had understood it the way Judge Pan described it, that visas are made available by country. [00:07:01] Speaker 06: As you said, there's country caps. [00:07:03] Speaker 06: And so if a cap is met for a period, then they would halt. [00:07:08] Speaker 06: And it makes sense to jump over those people if there are visas available and yet assigned. [00:07:15] Speaker 02: It's not like Ireland, England, and so on and so forth. [00:07:20] Speaker 02: Is there a visa available? [00:07:22] Speaker 02: Are you the rest of the world? [00:07:23] Speaker 02: Or are you subject to some type of country cap? [00:07:26] Speaker 02: Or is there a backlog? [00:07:26] Speaker 02: It's not country by country. [00:07:29] Speaker 05: But it seems that all you alleged was there are people who filed after us who got their visas adjudicated. [00:07:35] Speaker 05: And it seems like you would have to allege more to create an issue as to whether the agency is following its method. [00:07:45] Speaker 02: We also alleged that visas were available. [00:07:48] Speaker 02: And in fact, on a pleading basis, [00:07:50] Speaker 02: merely meaning crack factors three and five, showing that the harm's from the delay here. [00:07:54] Speaker 05: And keep in mind... If we could just stick first with whether your allegations were sufficient. [00:08:00] Speaker 05: It just seems to me that you just alleging that other people who filed after you were getting adjudicated first would not be sufficient to create an issue as to whether the agency is following their rule of reason, which is this visa availability and then FIFO within that. [00:08:18] Speaker 05: Because you're saying they're not following. [00:08:20] Speaker 05: They're saying what their rule is and they're not following it. [00:08:23] Speaker 05: But for you to sufficiently allege that they're not following it, it seems like you have to say more than people who filed after us are getting their visas. [00:08:32] Speaker 05: That's not enough. [00:08:33] Speaker 05: Because under this approach, it's not a strict FIFO approach. [00:08:38] Speaker 02: For those that were visas available and they're supposed to be processing that first in, first out, [00:08:44] Speaker 05: We, but, but among the available though, they're different countries and there might not be availability based on what country you're from. [00:08:52] Speaker 02: Right. [00:08:53] Speaker 02: So for those that are available, like Mr. DeCosta, they were not following first and first. [00:08:58] Speaker 05: It seems that you would have to allege that there are people from the same country who are getting. [00:09:02] Speaker 06: Is that your position that there are people from South Africa who filed later? [00:09:11] Speaker 06: who have gotten visas. [00:09:12] Speaker 02: We sit in the same commercial enterprise, because we don't understand the government's rule of reason to ever do it by based on nationality. [00:09:20] Speaker 06: I'm confused by that. [00:09:21] Speaker 06: So you say it's certain capped countries and then the rest of the world. [00:09:25] Speaker 06: I thought they were their only caps for certain places where this program is very popular. [00:09:31] Speaker 02: Or by the nature of the immigrant visa allocation, you can only have 7% per country for all immigrant visas. [00:09:37] Speaker 02: So if you're subject to that cap, you're going to be placing it back into those backlogs [00:09:41] Speaker 02: and family and employment based cases. [00:09:44] Speaker 02: So for an Indian national, for a Chinese national, where they may be coming close to the country cap, the Department of State, in its mystical powers, will come up with a monthly visa bulletin where they'll put an actual priority date, which is the date someone filed a petition, and anyone who filed later does not have a visa available. [00:10:05] Speaker 02: Anyone who filed before would have a visa available. [00:10:08] Speaker 02: They would be all current. [00:10:09] Speaker 05: Council, the USIS website says it's by country. [00:10:13] Speaker 05: It says USIS will now first process petitions for investors for whom a visa is either now or soon will be available. [00:10:20] Speaker 05: The form captures your country of birth, which will be compared with chart B indicating visa availability for that country. [00:10:29] Speaker 02: Right. [00:10:29] Speaker 02: I think what they mean, though, is sure, but they're not going to designate because there may be subject. [00:10:34] Speaker 02: There may be countries that become backlog. [00:10:37] Speaker 02: Right. [00:10:37] Speaker 02: Right. [00:10:38] Speaker 02: But if they're not backlogged, they'll be grouped together. [00:10:43] Speaker 02: That's not what I'm saying. [00:10:45] Speaker 02: Yeah. [00:10:45] Speaker 02: Well, I mean, I think we're I think what we're talking about, though, is the difficulty here in accepting, you know, taking judicial notice and saying because Judge Boasberg did not say, well, you're from South Africa, so it doesn't matter. [00:10:56] Speaker 02: That wasn't his analysis. [00:10:58] Speaker 05: He did say the analysis is that you didn't sufficiently allege that they're not following their rule as to you. [00:11:06] Speaker 02: Correct. [00:11:07] Speaker 02: But he never understood this visa availability approach. [00:11:10] Speaker 02: And certainly the government has not reported this visa availability approach this way, that it's by some type of country. [00:11:17] Speaker 02: And I think this goes- I'm sorry. [00:11:19] Speaker 05: I thought that Judge Boasberg took judicial notice of the use of his website. [00:11:24] Speaker 05: And this is what the website says by country. [00:11:27] Speaker 05: And so you're asserting that they're not following their purported rule of reason with respect to your client, but you haven't alleged that you're that they haven't done that sufficiently because the rule of reason that has been taken judicial notice of does this by country. [00:11:44] Speaker 05: And you have not alleged that people from the same country are being processed ahead of your client. [00:11:51] Speaker 02: That was not even in their motion to dismiss. [00:11:53] Speaker 06: So let me ask you, is your theory that countries that are approaching the cap or that have reached the cap, that they should be set aside, but that with respect to, as you say, rest of the world, that that under the policy, as they've stated it, that needs to be chronologically first in, first out, even if [00:12:19] Speaker 06: In their experience, there are, you know, six applications a year from one country and 400 from another, and they might want to, you're saying they can't prioritize as between those. [00:12:33] Speaker 02: No, in fact, there's, I mean, there's, it's court's decision, Mina Z, XIE, that I recited in my reply, there's a specific order of consideration under the statute 8 U.S.C. [00:12:45] Speaker 02: 1153 E1 that talks about the specific order of consideration that [00:12:49] Speaker 02: that visas must be allocated. [00:12:50] Speaker 02: And it's by priority date. [00:12:52] Speaker 02: And so it cannot be by nationality. [00:12:54] Speaker 02: In fact, there's also a discrimination provision in the allocation of immigrant visas in the INA that would preclude the type of visa availability approach that apparently is on their website. [00:13:05] Speaker 02: They can't even do that under the law. [00:13:06] Speaker 02: That would be illegal. [00:13:07] Speaker 02: And I don't think they do. [00:13:08] Speaker 02: What they do is they take people where visas are available, and there's no rhyme or reason to it. [00:13:15] Speaker 02: And then the amicus that was submitted [00:13:17] Speaker 02: before this court showed they took 600 petitions that were filed after our plaintiffs and did it. [00:13:23] Speaker 02: And again, we're on the notice meeting here. [00:13:26] Speaker 02: This may be a marriage decision. [00:13:28] Speaker 02: And in fact, if they had come back and said, listen, look at all the people who filed, you're well behind. [00:13:35] Speaker 02: That would be a marriage question. [00:13:36] Speaker 05: I think we're looking at whether you've stated a claim that the agency has not applied its rule to your client. [00:13:45] Speaker 05: Right, but it seems to me that in order for you to state a claim based on what. [00:13:49] Speaker 05: our understanding of the rule is based on the website, which was traditionally noticed, is that they look at these availability for that country, and then USAS will use this information along with other factors to determine which should be processed first. [00:14:04] Speaker 05: So if you don't allege that there are other people from the same country who are processed before you, that is not on a FIFO basis, then you haven't stated a claim that the agency's not applying this program to your client. [00:14:21] Speaker 02: Well, I don't think satisfying the first track factor is necessary to satisfy Rule 8A of the Federal Rules of Civil Procedure. [00:14:30] Speaker 02: That's not the essential element of it. [00:14:31] Speaker 06: Well, I mean, you keep referring to notice pleading, which harks back to Connolly versus Gibson. [00:14:37] Speaker 06: But, you know, we're in the Twombly, if all world. [00:14:39] Speaker 06: There has to be a plausibly pleaded basis. [00:14:43] Speaker 06: And it doesn't have to be, you know, proof that would win a trial. [00:14:47] Speaker 06: But I think we're just trying to understand [00:14:51] Speaker 06: whether there is, and clearly the government will fill us in on what its theory is, but I had not understood the description you're giving us today to be your understanding of the policy based on your papers. [00:15:09] Speaker 02: Well, I mean, it's not my understanding. [00:15:12] Speaker 02: It's really the Immigration and Nationality Act requirement. [00:15:15] Speaker 02: There is no way, and I don't understand their visa availability approach [00:15:20] Speaker 02: designated by nationality. [00:15:22] Speaker 02: In fact, that would not be appropriate under the law in this court's decision. [00:15:27] Speaker 02: You can't do that. [00:15:29] Speaker 02: You have to take it by priority date unless you have no visas available because of the other competing provisions of law, which are the country caps. [00:15:39] Speaker 02: So there is no way in which you can start siloing people by country. [00:15:48] Speaker 02: if there are visas available, they would go by priority. [00:15:51] Speaker 06: So your view is that you must take by priority date globally unless and until the country cap is reached. [00:16:01] Speaker 06: And then you put that aside and you continue to take people by filing date globally. [00:16:06] Speaker 02: And that was the purpose of the visa availability approach. [00:16:08] Speaker 02: I mean, let's not forget that they came up with that visa availability approach after our clients filed the petition because they wanted to reduce the processing time. [00:16:17] Speaker 02: And what they said was, it makes little sense for us to focus on cases and petitions where visas are not available because of the country backlog. [00:16:26] Speaker 02: So we're going to focus on those where visas are occurring and available. [00:16:30] Speaker 02: Makes sense. [00:16:32] Speaker 02: OK? [00:16:32] Speaker 02: No one's disputing that. [00:16:33] Speaker 02: In fact, however, though, once you get into the queue where visas are available for the rest of the world, it must go by priority date. [00:16:41] Speaker 02: And that's not what happens. [00:16:44] Speaker 02: And that's what we allege. [00:16:46] Speaker 02: I mean, that's really in our pleading. [00:16:47] Speaker 06: Just as a matter of sort of how the program works, the period when your petition is pending, the investment is tied up in the project, but the period of time during which it's tied up in the project is not counted against the minimum period of investment required to be eligible for the green card, right? [00:17:07] Speaker 06: So it's only, is it six years that one has to maintain the investment? [00:17:13] Speaker 02: You actually have to sustain your investment through the removal of your conditional residency for two years now. [00:17:22] Speaker 02: So that means after this 526 petition would be approved, let's say, then you have to file for an immigrant visa. [00:17:30] Speaker 02: Then you have to come in on that immigrant visa. [00:17:32] Speaker 02: And then within, I guess, 90 days prior to your anniversary, you have the petition to remove the conditions because you're a conditional resident. [00:17:41] Speaker 02: You have to sustain your investment. [00:17:43] Speaker 02: another two years. [00:17:44] Speaker 02: So we're talking. [00:17:46] Speaker 02: So that's why the delays are so impactful. [00:17:48] Speaker 06: Am I misremembering that there's some six-year commitment? [00:17:51] Speaker 06: I'm misremembering. [00:17:55] Speaker 02: There's not a six-year commitment. [00:17:57] Speaker 02: You have to create 10 full-time jobs. [00:17:58] Speaker 02: Right. [00:17:59] Speaker 02: Yeah. [00:18:00] Speaker 02: No, I mean, you have to sustain your investment. [00:18:02] Speaker 02: And this is why. [00:18:03] Speaker 02: But only two years after you get. [00:18:05] Speaker 02: Well, this is the practical difficulty, whether you're a backlog or you're going on a border. [00:18:09] Speaker 02: Let's say they started going last in first out. [00:18:12] Speaker 02: Your term of investment now has just been extended. [00:18:15] Speaker 02: Now what, is it 60 months for a petition? [00:18:18] Speaker 02: It used to be 19 months when our clients filed. [00:18:21] Speaker 02: So that is added. [00:18:23] Speaker 02: That period of investment is added on. [00:18:25] Speaker 02: So this is why the delays are harmful. [00:18:27] Speaker 02: But I do want to just make one point. [00:18:29] Speaker 02: I didn't get it. [00:18:30] Speaker 02: But track factors three and five in this case were found for our clients. [00:18:33] Speaker 02: The delays here had impacted their health and welfare. [00:18:37] Speaker 02: So track factors three and five. [00:18:38] Speaker 02: In cases from public courts, I found that that standing alone [00:18:41] Speaker 02: was sufficient to get past the police. [00:18:43] Speaker 02: And that's what we asked. [00:18:45] Speaker 02: Give our clients a shot for the district court to go to summary judgment. [00:18:49] Speaker 02: All right. [00:18:50] Speaker 02: Thank you. [00:18:51] Speaker 02: Mr. Bannas. [00:19:00] Speaker 00: Thank you, honors. [00:19:00] Speaker 00: And may it please the court. [00:19:01] Speaker 00: My name is Brad Vance. [00:19:02] Speaker 00: I represent the Vegas in this case. [00:19:04] Speaker 00: I'm judging. [00:19:05] Speaker 00: I want to try to answer your question. [00:19:07] Speaker 00: When you reference the website, you also reference chart B. It says it on there. [00:19:12] Speaker 00: Chart B is something the State Department creates. [00:19:14] Speaker 00: So to see the contents of chart B, you need to go to another website. [00:19:18] Speaker 00: You Google Visa Bulletin, it pops up real quickly. [00:19:21] Speaker 00: If you go to chart B on Visa Bulletin, you go to the right category for the employment-based fifth preference, you'll see the distinctions that my colleague was talking about. [00:19:32] Speaker 00: You'll see that the caps only apply to two countries currently. [00:19:35] Speaker 00: in the EB-5 space, and that's the People's Republic of China, and that's India. [00:19:40] Speaker 05: Those two countries do have their own separate columns in the visa bulletin, on chart B and chart A. But I think, aren't there also limits, like you could only have, but so many percentage of the visas can be from each country, so there's going to be a cap within each country as well? [00:19:56] Speaker 00: Not on chart B, Europe. [00:19:57] Speaker 00: They only identify the countries that have already hit the cap, and that have this waiting line. [00:20:05] Speaker 00: literally the term in the column that would apply to both my clients as well as my colleagues' clients is called the rest of the world. [00:20:13] Speaker 00: And again, if you go to the Visa Bulletin, see chart A and chart B, that's how it's done because they only identify priority dates that would be current for countries that are backlogged. [00:20:23] Speaker 00: The EB-5, that's historically been China and just in the last six months, India or so. [00:20:29] Speaker 00: And I think this whole discussion does get to the point that the lower quarter of this circuit [00:20:35] Speaker 00: is not applying rule 12 v 6 standards to unreasonable delay cases. [00:20:39] Speaker 06: To answer me the same question that I asked of the DeCostas counsel, where in your complaint do you allege, and I think you actually have something about political favoritism, like where do you allege departing from the stated approach? [00:21:01] Speaker 00: You're on J-A 10 through 12. [00:21:04] Speaker 00: We have paragraph 51, they do not follow first in, first out. [00:21:08] Speaker 00: Paragraphs 55 through 59, these availability approach is not a complete approach because really, we don't know how they assign these cases because agencies never had to prove it. [00:21:22] Speaker 06: Well, for example, 51, they don't adjudicate forms on a first in, first out basis. [00:21:26] Speaker 06: That's completely conclusory. [00:21:27] Speaker 06: The plausible allegations to support that [00:21:34] Speaker 00: Your Honor, if we continue to read the complaint, we learned that we allege that the agency expedited hundreds of people ahead of mine because they were in a project that was favored by the administration at that time. [00:21:48] Speaker 00: And again, we provided 200 pages of emails and asked our motion to dismiss that the court absolutely refused to look at. [00:21:55] Speaker 00: Those are absolutely relevant and available to look at at a 26-stage. [00:21:59] Speaker 06: Just tell me which pages to look at. [00:22:01] Speaker 00: It's around 218 in the Joint Appendix, Your Honor. [00:22:05] Speaker 06: 218? [00:22:05] Speaker 06: 218? [00:22:06] Speaker 00: Yes, Your Honor. [00:22:07] Speaker 00: And what you're going to see is that through a FOIA, because again, we can't get past the motion to dismiss to get a record discovery here, through a FOIA application that was returned after we filed this case, we see emails from the Investor Program Office identifying this project, this expedite, describing it as problematic and trying to find a solution. [00:22:27] Speaker 00: And, you know, it's all redacted, but they discuss litigation exposure. [00:22:31] Speaker 00: That is well beyond what we need to do at the Rule 12b6 stage. [00:22:36] Speaker 00: Your Honor, you said it best, we live in that world, and unreasonable delay cases are not outside of that world. [00:22:43] Speaker 00: I'd point you to a case called Gonzalez in the Fourth Circuit and a case called Barrio-Sarcia in the Sixth Circuit. [00:22:49] Speaker 00: Admittedly, they do involve different immigration benefits, but this is not an immigration case. [00:22:54] Speaker 00: This is an unreasonable delay case. [00:22:56] Speaker 00: And unreasonable delay principles apply across the different immigration benefits. [00:23:00] Speaker 06: Those are the cases that remanded for discovery. [00:23:02] Speaker 00: Those are cases that said the government's motion to dismiss was improperly looked at because this is 12b6 and we don't know the facts yet, Your Honor. [00:23:11] Speaker 00: And the Sixth Circuit's case, if you read it through, you're going to see it rejects every argument that the government makes here because they treat these cases identically around the country. [00:23:19] Speaker 00: They file the same motion dismissed and that one was out of the Eastern District of Kentucky as they do here in D.C. [00:23:25] Speaker 00: as they do in Los Angeles, Your Honor. [00:23:26] Speaker 00: Because again, they use these [00:23:29] Speaker 00: what seemed like natural ways to process applications, but they never have to prove it, because once they lose the motion to dismiss, Your Honor, they settle the cases. [00:23:39] Speaker 00: So they're not ever forced to prove what their actual rule of reason is, whether they follow it, whether they provide favoritism to certain projects over others, and that's all we're asking for, Your Honor. [00:23:51] Speaker 00: I readily admit, we could get through discovery and we could lose, but we don't even get that opportunity at this point, Your Honor. [00:23:56] Speaker 00: And the lower court is, [00:23:58] Speaker 00: divided and I understand the lower court in this particular district because of the unique nature of District of Columbia is overrun with these cases. [00:24:07] Speaker 00: But granting motions to dismiss and doing violence to rule 12 v 6 principles that no one disputes is not the way to handle it. [00:24:13] Speaker 00: I would point to the sixth circuit and the fourth circuit. [00:24:16] Speaker 00: They haven't all of a sudden been overrun by unreasonable delay cases in the immigration context simply because those courts have said motions to dismiss in this context are inappropriate. [00:24:26] Speaker 00: And so that reason I think [00:24:29] Speaker 00: I think you're doing exactly right. [00:24:31] Speaker 00: We go to the forecourt of the complaint. [00:24:34] Speaker 00: We give every specific non-prolucent allegation the presumption of truth. [00:24:40] Speaker 00: We assume it's accurate. [00:24:42] Speaker 00: And to the extent there's a dispute between something the government has averged and their motion to dismiss and our fact, that fact of dispute [00:24:50] Speaker 00: precludes a finding, precludes granting the motion to dismiss. [00:24:56] Speaker 00: Again, these are not disputed legal principles we're talking about. [00:25:00] Speaker 00: This is Paul and Twombly. [00:25:01] Speaker 00: This court and the lower court apply Rule 12 v. [00:25:03] Speaker 00: 6 consistently in every other verandah of cases except unreasonable delay cases in the immigration context. [00:25:10] Speaker 00: And I find it interesting that when you look at unreasonable delay cases out of the District of Columbia for, say, [00:25:17] Speaker 00: The Bureau of Indian Appeals, there's two that the government always cites. [00:25:20] Speaker 00: One's called Mashpee and one's called Waco. [00:25:23] Speaker 00: You know, those cases went to discovery. [00:25:25] Speaker 00: They didn't lose the motion at the dismiss stage. [00:25:27] Speaker 00: They lost its summary judgment. [00:25:29] Speaker 00: The agencies in those cases had to prove the facts. [00:25:33] Speaker 00: And the motion to dismiss stage, it's a very low... Well, it depends on the complaint. [00:25:39] Speaker 05: So, fact specific. [00:25:41] Speaker 05: Now, on the blanket expedites to new commercial enterprises, you haven't alleged that [00:25:47] Speaker 05: has happened since your clients filed their petition. [00:25:50] Speaker 05: You cite something that happened before, under a prior administration. [00:25:54] Speaker 05: So why is that enough? [00:25:56] Speaker 00: Your honor, it went through 2020. [00:25:58] Speaker 00: That's well after my client filed. [00:26:00] Speaker 00: My client filed in November of 2019, the two that are still accurate. [00:26:04] Speaker 00: They didn't cancel until 2020. [00:26:05] Speaker 00: Well, until... Cancel what? [00:26:07] Speaker 00: They didn't cancel this expedite, your honor. [00:26:10] Speaker 00: The new administration took over in 2022. [00:26:13] Speaker 00: And so, yes, they suffered and there's 271 at least immigrants that were decided ahead of time in about 90 days. [00:26:20] Speaker 00: That was the average the government admit. [00:26:23] Speaker 00: If it really does take an adjudicator 8.6 hours, that's pushing people back by a year, essentially. [00:26:30] Speaker 00: And that's inappropriate here. [00:26:33] Speaker 05: Did you allege that timing overlap? [00:26:35] Speaker 05: Where in your complaint is that? [00:26:37] Speaker 00: Well, Your Honor, I would point you, [00:26:41] Speaker 00: in that um paragraph 67 verse 71 and then at the end of paragraphs 145 through 156 your honor and again keep in mind when we when we when i alleged this and filed this complaint um your honor we didn't have that for you yet um and the government was claiming no we don't do blanket expedites this isn't something that we do we would never do that and [00:27:12] Speaker 00: The website that you see, Your Honor, they've all been taken down because those folks are now concerned about it. [00:27:18] Speaker 00: But this gave not only that regional center a significant commercial advantage, which is what the adjudicators recognize the problem, but it also delayed my clients and delayed most folks after them. [00:27:30] Speaker 00: And Your Honor, I just want to point out one last thing. [00:27:32] Speaker 00: I know my time is up. [00:27:35] Speaker 00: The track factor four, we've been focused on one most of the time, but track factor four seems to be, let's put it this way, it's laws and motions dismissed in Texas solely on the basis of track factor four. [00:27:45] Speaker 00: And this court is uniquely suited to discuss it because around the country on the different circuits, they look to the D.C. [00:27:53] Speaker 00: for expertise in administrative law, which I think is appropriate, and they cite this case called the Mashkey Tribe. [00:27:59] Speaker 00: And Mashkey Tribe generally, when the government cites it, stands to the proposition that if you're gonna get pushed to the front of a quote line, [00:28:05] Speaker 00: that mandamus shouldn't lie or an unreasonable case shouldn't lie, you can lose exclusively on that. [00:28:10] Speaker 00: This court really needs to take that on and discuss it and explain whether it applies in immigration context simply because in that case, we were talking about a administrative process that can only be done consecutively. [00:28:22] Speaker 00: It was an undisputed fact that literally all of the agency's resources went to one application at a time. [00:28:28] Speaker 00: And if they move to that second application, all of the resources would be on the second application. [00:28:32] Speaker 00: And for that reason, there are only 10 applications pending. [00:28:34] Speaker 00: And if they move them, you could see there's a certain difference. [00:28:37] Speaker 06: So what's your answer here to why it wouldn't be line jumping for the court to grant relief to your clients? [00:28:45] Speaker 00: Because, Your Honor, there's no line. [00:28:47] Speaker 00: The agency can grant hundreds of these a week, if not more than that. [00:28:51] Speaker 06: I thought the whole position was there is a line, but that they're taking people out of line. [00:28:56] Speaker 00: Your Honor, we allege multiple times there's no line. [00:28:59] Speaker 00: I think the line is a very powerful metaphor. [00:29:01] Speaker 06: But I thought that FIFO, the whole concept of filing date being the sequence in which the agency is supposed to process these applications, that is a line, no? [00:29:16] Speaker 00: Your Honor, I don't think that holds up. [00:29:19] Speaker 06: So they're claiming that but not doing it? [00:29:21] Speaker 06: Or you're saying they're not even claiming that? [00:29:23] Speaker 00: They claim first in, first out, everything. [00:29:25] Speaker 06: Yeah. [00:29:26] Speaker 06: And so that is a lie. [00:29:28] Speaker 06: And you're saying, well, they're not doing that. [00:29:30] Speaker 06: So they should just throw it in the gutter? [00:29:33] Speaker 06: You just totally lost me. [00:29:35] Speaker 00: I'm very good at losing people. [00:29:39] Speaker 00: Let's describe the line. [00:29:40] Speaker 00: Okay, let's talk about the line. [00:29:42] Speaker 00: The line is at least 26 adjudicators applied. [00:29:44] Speaker 06: Okay, so there are 26 lines. [00:29:47] Speaker 00: Okay, there's 26 lines. [00:29:48] Speaker 06: Or there's one line like you do when you're going to TSA, you're in one line and then you go to the next available. [00:29:54] Speaker 00: That's a great question to factor on. [00:29:56] Speaker 00: I would love to know how it actually works. [00:29:58] Speaker 00: But there's 26 at least, right? [00:30:01] Speaker 00: And some, and again, this is all now guesswork because we don't know, because the reason, excuse me, their visa availability approach, they don't talk about how they actually sign the case adjudication and we talk about things in the abstract. [00:30:15] Speaker 00: But some of them are deciding, especially prioritize that they've already made a decision on a regional center. [00:30:21] Speaker 00: that could be five applicants associated with that, that could be 500 applicants associated with that, right? [00:30:26] Speaker 06: I think so they've now just claimed that because they realize they didn't have authority for that, to expedite regional centers. [00:30:33] Speaker 06: No. [00:30:35] Speaker 00: I'm not talking about expediting, Your Honor. [00:30:36] Speaker 00: Oh, okay. [00:30:37] Speaker 06: That's a special line, I guess that's the... Okay, so when you talk about decision on a regional center, how does that fit into the rule of reason that we look first in, first out? [00:30:50] Speaker 00: I think that's a question for the government because I don't know the answer. [00:30:52] Speaker 00: My best guess, because again, we haven't gotten to discovery, we haven't got to test their factual vermin. [00:30:59] Speaker 00: A regional center, no one invests in a regional center. [00:31:04] Speaker 00: Regional center partners up with businesses. [00:31:07] Speaker 00: Actually, I stayed in a hotel that was built with EB-5 money last night. [00:31:10] Speaker 00: So it's Marriott, right? [00:31:12] Speaker 00: Marriott is the new commercial enterprise. [00:31:14] Speaker 00: And that's where the foreign nationals put their money. [00:31:16] Speaker 00: Now, that has to associate with the regional center. [00:31:20] Speaker 00: An organization has been designated and certified by USCIS to help promote these projects and grow them and have multi-million dollar investments rather than just smaller ones. [00:31:30] Speaker 00: So my understanding of these availability approach is if we have already reviewed the fundamentals of that project associated with that regional center, and there's 45 applications because it was a $20 million project, [00:31:45] Speaker 00: then we're going to prioritize that because we've already done a lot of the heavy lifting. [00:31:48] Speaker 00: We've already looked and determined whether the job creation was there, whether the econometric analysis was appropriate, and now we're still looking at your source of funds. [00:31:56] Speaker 00: And so that plays into this assignment versus just passing them through. [00:32:05] Speaker 00: We don't know how that works. [00:32:06] Speaker 00: Those 26 adjudicators, and by the way, it could be more, Your Honor. [00:32:09] Speaker 00: But they have 30 something you get is just for fraud. [00:32:12] Speaker 05: There's a there's a process to apply for expediting. [00:32:16] Speaker 05: Are you saying this is separate and apart from the your other addition? [00:32:19] Speaker 00: That's exactly right. [00:32:20] Speaker 00: If you're an individual and you have humanitarian bases and you say, please, please, please, expedite. [00:32:25] Speaker 00: Sure. [00:32:25] Speaker 00: And that's available to all visa. [00:32:27] Speaker 05: So the basis for the expediting process is an individual based on your hardships. [00:32:34] Speaker 05: That's right. [00:32:35] Speaker 04: The expedite here. [00:32:37] Speaker 05: A blanket expedite for a project is a separate thing and your position is that there's no part of the rule of reason that addresses that. [00:32:46] Speaker 00: That's exactly right, Your Honor. [00:32:47] Speaker 00: And just to be very specific, what was expedited here was at that time called a Form I-924. [00:32:52] Speaker 00: And a Form I-924 was what a regional center files to get kind of pre-approval for one of their projects. [00:33:01] Speaker 00: The pre-approval meaning, yeah, we agree with the job creation. [00:33:04] Speaker 00: We agree with the econometric analyses. [00:33:09] Speaker 00: And then these regional centers that go out and sell these securities and say, look, the government's already approved our exemplar. [00:33:16] Speaker 00: And so come join us. [00:33:17] Speaker 00: And you can imagine it's a very good marketing technique. [00:33:20] Speaker 00: We've been pre-approved, show your money came legally, and then you'll get a decision. [00:33:26] Speaker 00: So what was approved in the Triumph Project was that, the Form I-924. [00:33:30] Speaker 00: Yet they decided to adjudicate in an expeditious way [00:33:34] Speaker 00: 271 individual applications, totally different. [00:33:39] Speaker 00: None of those individuals had to say, hey, you know, my mother's dying in the United States. [00:33:43] Speaker 00: I would like to come stay with her and see her through the end of her life. [00:33:46] Speaker 00: I can only die for them here. [00:33:48] Speaker 05: And you're saying that they took them out of line. [00:33:49] Speaker 05: It wasn't FIFO for those people based on their [00:33:52] Speaker 00: Based on those emails around, the government says their average time was 3.3 months while they were reporting on the public website, 62 months, Your Honor. [00:34:00] Speaker 00: And this is our problem with public websites and taking judicial notice. [00:34:03] Speaker 00: We've alleged disputes of fact, and the lower courts just ignore them. [00:34:06] Speaker 00: And they say, well, it's on the CIS website, so it's gospel. [00:34:10] Speaker 00: And I would suggest that through our complaint, because that's what we're limited to, that and the attachments that you'll see, we allege that those are all incorrect and provide substantial corroborating evidence for them. [00:34:19] Speaker 05: So I guess then, just in terms of the way you plead this, [00:34:23] Speaker 05: I'm looking at parts of your complaint. [00:34:26] Speaker 05: It seems like you would have to plead that they have blanket expedites and there were ones that affected your clients. [00:34:35] Speaker 00: Which we did, yeah. [00:34:36] Speaker 00: It looks like it's me, what you said. [00:34:39] Speaker 00: We plead they're illegal. [00:34:40] Speaker 00: We plead it's a product of favoritism because there's no mechanism under the [00:34:45] Speaker 00: statute regulations or policies to agree to adjudicate an entire 271 people, because half of those people haven't even been solicited or signed up yet when the extradite was granted. [00:34:55] Speaker 05: And you're looking now at the 146, I guess, is what I'm looking at. [00:35:04] Speaker 05: Upon information and belief accorded significant process in time benefits to certain projects, even though not authorized to be a regulation. [00:35:11] Speaker 05: And then see, for example, this project [00:35:15] Speaker 00: Correct, and again, I would urge you to look at the documents attached to my response to the motion dismissed, because again, if we went to discovery, these are the things I would get and I'd be able to show, or at least I'd be able to present it to the court, hey, here's what's actually going on. [00:35:29] Speaker 00: Now make a judgment on summary judgment, because the way we get rid of the flood of cases on delays in the lower courts is decisions on summary judgment, so that we have something that as a matter of law, I can tell my client, well, in this situation, we can't do that. [00:35:44] Speaker 00: Otherwise, if we keep this motion to dismiss rule, this low-risk, high-delay strategy from the government side, these cases are gonna continue to come in, and they're gonna continue to create significant splits and do violence to undisputed rule 12 principles. [00:35:59] Speaker 00: And for that reason, Your Honor, we would ask that you vacate the lower court and allow us to finish the case. [00:36:03] Speaker 06: Just one point of information. [00:36:05] Speaker 06: When you're talking about these blanket expedites, is that the same as the exemplar approval that you allege, or is that a different thing? [00:36:13] Speaker 00: Totally different, Your Honor. [00:36:14] Speaker 00: An exemplar is something that's been in the industry for the last 10 years, and even the new law that just got passed in March of last year codified that. [00:36:22] Speaker 00: And so exemplars are just a separate form that basically allow a regional center and the project to get certainty and provide certainty to their potential investors. [00:36:33] Speaker 00: Because, Jeff, as you noted, these folks are investing a significant amount of money and creating a significant number of jobs. [00:36:40] Speaker 00: And when they come into this, they say, OK, I'm going to put up my [00:36:43] Speaker 00: Nowadays, it's $800,000. [00:36:46] Speaker 00: What's it going to look like? [00:36:47] Speaker 00: And you have to say, well, I think under the system, you would say, well, let's give it a year to get approved. [00:36:53] Speaker 00: Then you have two years in your conditional status. [00:36:55] Speaker 00: And then when you apply to your conditional status, you can get your money back for that decision. [00:36:59] Speaker 00: So you're looking at probably tying up your money, let's say, three to five years. [00:37:03] Speaker 00: Right now, their money is tied up for five years before any of that even starts, Your Honor. [00:37:08] Speaker 00: And so now you have these new issues that are being caused by this delay of this whole concept that is called redeployment, where they have to keep their money at risk. [00:37:16] Speaker 00: So the financiers who accepted their money originally, you know, the project's over, the hotel's built. [00:37:21] Speaker 00: So now they have to keep their money at risk in something else. [00:37:23] Speaker 00: So they take the money and they redeploy it. [00:37:26] Speaker 00: into something else that the original investor never knew about or could know about because these processing times have really done a number on the program. [00:37:34] Speaker 06: So exemplar approval is a tool that potentially a regional center that is trying to administer blanket expedites might use? [00:37:44] Speaker 06: No. [00:37:45] Speaker 00: So when you say blanket expedites, to my knowledge there's only ever been one and you're looking at [00:37:52] Speaker 00: I don't know. [00:37:53] Speaker 05: It says, though, that it's a rural set-aside. [00:37:55] Speaker 05: Is there a different statute that applies to this particular blanket expedite because it's a rural? [00:38:01] Speaker 00: No statute, regulation, or policy tells you how to request a blanket expedite because it's something that's been made up. [00:38:08] Speaker 05: No, but it says the law creates new EB-5 visa categories, including rural, subject to a different queue. [00:38:14] Speaker 05: So if this expedite is subject to a different queue, then your client was not to apply it. [00:38:20] Speaker 00: No, you're right. [00:38:21] Speaker 00: We're only enacted in March 15th of 2022 under the EB-5 Reform and Integrity Act. [00:38:27] Speaker 05: But I'm just going by what's cited in your complaint. [00:38:29] Speaker 05: And this website says it's a separate queue from what your clients are in. [00:38:34] Speaker 05: So this wouldn't support it. [00:38:35] Speaker 03: I'm sorry. [00:38:37] Speaker 05: I just clicked on the link in your complaint, the EB5FAST.com. [00:38:43] Speaker 05: and it says it's a different queue. [00:38:44] Speaker 05: So your client's not affected by this. [00:38:46] Speaker 00: That's because the website link you clicked on has been changed because what you're looking at could not have been in place in 2019 when we filed. [00:38:54] Speaker 00: And the blanket exercise you're going to find it anywhere. [00:38:57] Speaker 05: So I guess where I am is I think you could theoretically state a claim if you have actually alleged that there are blanket expedites that are hurting your clients, but I don't see it on the face of your complaints and what you've cited doesn't support it. [00:39:13] Speaker 05: So I'm just now just trying to see if you've actually alleged facts that would support that theory, which I think is a valid theory, but I don't see the fact. [00:39:21] Speaker 00: Your honor, I would say again, [00:39:24] Speaker 00: we're dealing with the problem of delay. [00:39:26] Speaker 00: The EB-5 FAST website has been changed. [00:39:29] Speaker 00: The pictures you see came from a website that goes back in time on the internet and gets screen shots because they changed it. [00:39:36] Speaker 05: So what am I supposed to do here? [00:39:38] Speaker 05: This is what you've cited. [00:39:39] Speaker 05: I don't see on your complaint the facts to support your theory. [00:39:43] Speaker 05: So I guess you lose because the face of your complaint doesn't support it? [00:39:48] Speaker 00: Your Honor, we allege that this delayed our clients. [00:39:51] Speaker 00: We allege that the agencies derivate- But you have to support that with- [00:39:54] Speaker 05: Where are the facts? [00:39:55] Speaker 00: Your honor, we don't have to win. [00:39:57] Speaker 05: No, you don't have to win, but it has to be plausible. [00:40:00] Speaker 05: You've stated a theory. [00:40:02] Speaker 05: You have to have some factual allegations to support it. [00:40:04] Speaker 00: Your honor, first off, I would say that the court below didn't even look at all of our factual allegations. [00:40:09] Speaker 00: It ignored half of them. [00:40:11] Speaker 00: That's the first thing. [00:40:12] Speaker 00: The second thing is we have to give our factual allegations the benefit of the doubt, and even if they're doubtful, assume they're true. [00:40:19] Speaker 00: And so when we allege, they decided 271 people from 2017 to 2021. [00:40:23] Speaker 05: I'm just looking at your complaint, and I don't see the facts. [00:40:26] Speaker 05: That's all I'm saying. [00:40:27] Speaker 00: I understand, Your Honor, and I do believe that the complaint speaks for itself. [00:40:30] Speaker 00: I do think that this court can review the documents attached to the motion that's missed because they're incorporated by reference in the complaint. [00:40:38] Speaker 00: And for that reason, we think that this court should force the lower courts here to actually apply Rule 12b6. [00:40:43] Speaker 00: Thank you. [00:40:44] Speaker 06: I just have one more question. [00:40:46] Speaker 06: Health and welfare, you alleged that the delay affects health and welfare. [00:40:52] Speaker 06: It's clear that it affects the tying up of the economic resources, but isn't that economic harm not health and welfare? [00:41:00] Speaker 00: Your Honor, I think that yes, tying up money is economic, but I think that that track factor is kind of a duality. [00:41:08] Speaker 00: Does the benefit that's being delayed impact the person's health and welfare, or is it an economic regulation? [00:41:14] Speaker 00: I think it's very stark, and I think here the significant imposition on their daily lives is what we allege. [00:41:23] Speaker 00: They're just being deprived of the ability to immigrate to the United States for years and years. [00:41:27] Speaker 00: And imagine getting, passing the bar, right, and then the state saying, oh, we'll give you your certificate of practice here in a second, and then waiting 40 years. [00:41:35] Speaker 00: During that 40 years, sure, you're going to get it eventually. [00:41:38] Speaker 00: But your life would be on hold. [00:41:40] Speaker 00: And that's the hardship they're suffering. [00:41:41] Speaker 00: And that goes to their health and wealth. [00:41:43] Speaker 00: They're not their ability to go earn money as a lawyer, right? [00:41:46] Speaker 00: In that metaphor. [00:41:47] Speaker 06: Yeah. [00:41:48] Speaker 06: Although that theory seems very broad in the sense that it's difficult to wait for any important benefit. [00:41:54] Speaker 06: And so that track factor would basically virtually always be met. [00:41:59] Speaker 06: Prolonged uncertainty about a significant benefit. [00:42:04] Speaker 00: I think, Your Honor, that it will go to the weight of that factor. [00:42:06] Speaker 00: I think it's, is this economic or is this health and welfare? [00:42:09] Speaker 00: This is health and welfare, but given this particular context, this specific case, it doesn't weigh that heavily in their favor, Your Honor. [00:42:16] Speaker 00: I would just point you again to the Barrios case, which my colleague cited, where they say, yeah, alleging that you have legal disabilities under the law and that impacts your health and welfare, that alone is sufficient to state a claim. [00:42:29] Speaker 00: And that's applying Rule 12b6 standard as its intent. [00:42:32] Speaker 00: Thank you, Your Honor. [00:42:33] Speaker 01: Mr. Goldsman. [00:42:35] Speaker 04: Your Honor, May I please report. [00:42:44] Speaker 03: As a matter of law, opponents failed to allege facts, it became a delay in adjudicating. [00:42:48] Speaker 03: Investing these petitions was so egregious as to warrant judicial intervention. [00:42:54] Speaker 03: And under it all, there's a line that you have to nudge across from the mere possibility [00:43:01] Speaker 03: to possibility. [00:43:03] Speaker 06: Right. [00:43:03] Speaker 06: You're exactly right about that. [00:43:04] Speaker 06: But Mr. Goldsmith, it would be really helpful if you would sketch out for us your understanding of what the government system is, what the rule of reason is, how the caps interact with the first in first out asserted rule that the government follow. [00:43:23] Speaker 03: Yes, Your Honor. [00:43:25] Speaker 03: I will try to do so. [00:43:26] Speaker 03: Let me just say these are issues that weren't exactly raised alone. [00:43:30] Speaker 03: And we're not really fleshed out in the fleet. [00:43:33] Speaker 03: But I will try to address your contention. [00:43:36] Speaker 03: I mean, your question about how the CAPS work. [00:43:41] Speaker 06: So the availability of- Or more broadly, if you could affirmatively explain, what is the rule of reason? [00:43:47] Speaker 06: What is the policy that the agency follows with respect to this program? [00:43:53] Speaker 03: Right. [00:43:55] Speaker 03: So in around 2000, when they were dealing with the backlog of these visa petitions, [00:44:01] Speaker 03: They sought to change how they went about processing these petitions to consider and to not just consider, but to focus on the availability of visas. [00:44:13] Speaker 03: Because not all petitions have a visa number available due to these statutory caps, pro-country caps. [00:44:25] Speaker 03: Now, the visa bulletin [00:44:29] Speaker 03: allocation of visa numbers is handled exclusively by the State Department. [00:44:33] Speaker 03: So USCIS isn't directly involved in it. [00:44:36] Speaker 03: But they looked to the State Department to see and tried to prioritize those petitions where, if approved, the person, their priority date was current, they could obtain a visa. [00:44:50] Speaker 03: So whereas for 2000, they looked at, it was basically grounded in first in, first out, they switched and had [00:44:59] Speaker 03: try to take into account and more than take into account, focus on visa availability and to consider that in trying to deal with this matter. [00:45:13] Speaker 06: Did you say they switched to more than take into account visa availability? [00:45:21] Speaker 03: Before 2000, it was grounded first and first out. [00:45:25] Speaker 03: and then he moved to visa availability. [00:45:27] Speaker 06: I thought that was still, I thought the department's position was that it was still first in, first out, subject to visa availability. [00:45:38] Speaker 06: So what about the way the appellants have described the program is wrong? [00:45:43] Speaker 06: They say, when a country has reached the cap, set that aside and don't insist on chronologically processing the applications from those countries because even if the application is fully processed, there's not going to be available visa. [00:45:58] Speaker 06: So set those aside and then do the rest of the world chronologically without regard to where [00:46:05] Speaker 06: the applications are coming from, and then if another country reaches its cap, set it aside. [00:46:11] Speaker 06: That is how I take it. [00:46:13] Speaker 06: Their understanding is based on public descriptions by USCIS. [00:46:18] Speaker 06: Is that not your understanding of what the role of reason is? [00:46:25] Speaker 03: I'm sorry, we don't have an answer to that question. [00:46:29] Speaker 03: This was not the issue that was litigated, other than to say, [00:46:35] Speaker 03: They describe on their website how it operates. [00:46:39] Speaker 06: I took this to absolutely be the issue that was litigated. [00:46:42] Speaker 06: It was described as first and first out, subject to visa availability. [00:46:48] Speaker 06: That's what I understood the complaint to say. [00:46:50] Speaker 06: That's what I understand the district court to have accepted. [00:46:53] Speaker 06: I may have a different view from my colleagues about judicial notice, but it's pleaded that that's [00:47:02] Speaker 06: what your policy is, and you're saying, no, actually, person first out isn't the primary guiding principle. [00:47:12] Speaker 06: It's now visa availability. [00:47:15] Speaker 06: Can you describe what you mean when you say it? [00:47:18] Speaker 03: I was not very clear, and I apologize for it. [00:47:22] Speaker 03: There was an allegation that it's done in strictly first place. [00:47:26] Speaker 03: That's not correct. [00:47:27] Speaker 03: look at visa. [00:47:29] Speaker 06: How so? [00:47:30] Speaker 06: Can you give an example of putting aside India and China or any other country that has met its cap? [00:47:38] Speaker 06: How in doing first in first out would the staff take into account visa availability? [00:47:47] Speaker 03: That's the question I don't have an answer to. [00:47:51] Speaker 06: That seems pretty important. [00:47:52] Speaker 06: You don't know actually what the role of reason is. [00:47:56] Speaker 06: Not beyond what they said on the website. [00:47:58] Speaker 06: And your understanding of what they said on the website is, again? [00:48:01] Speaker 06: Yeah. [00:48:05] Speaker 03: They basically do things in first-in, first-out with taking into account the availability of visa numbers. [00:48:15] Speaker 03: Now, there was this situation for approximately nine months where they didn't have the authority to approve positions in connection with the regional center program. [00:48:25] Speaker 03: So they didn't just sit on their hands. [00:48:27] Speaker 03: They adjudicated petitions that were called stand loans that were not part of the Regional Center program. [00:48:33] Speaker 03: So I guess you could have a situation where someone filed later who got adjudicated earlier because of this circumstance. [00:48:42] Speaker 03: And there also are situations where there's a procedure where you can request an expedite. [00:48:48] Speaker 03: But I think Judge Bostberg hit the nail on the head where he said that you can't now complain [00:48:55] Speaker 03: other petitioners benefited from this process when the tenants in this case never sought to use this expedite procedure, that there aren't facts to connect the contention that there were erroneously approved expedite requests. [00:49:13] Speaker 05: Can I go back to what the websites say about the rule of reason? [00:49:19] Speaker 05: Because it does, there is a website [00:49:23] Speaker 05: that says there's an annual per country allocation of EB-5 visas. [00:49:28] Speaker 05: This is, I'm trying to tell you what I'm looking at. [00:49:35] Speaker 05: It's a website that says USAS suggests process for managing EB-5 visa petition inventory. [00:49:43] Speaker 05: And if you go to that website, it does say there's a per country allocation. [00:49:47] Speaker 05: And I think what Judge Pillard is interested in, and I am too, is [00:49:52] Speaker 05: If you go to the page about visas, it says two countries have met their cap. [00:49:59] Speaker 05: And the question is whether there's sort of a country, still a country by country cap, or is everybody else lumped together in a FIFO system? [00:50:08] Speaker 05: And this website suggests that there is still a per country allocation. [00:50:14] Speaker 05: Is that true? [00:50:15] Speaker 05: So that in order to allege that you're not following a rule of reason, somebody would have to allege that somebody from the same country [00:50:23] Speaker 05: has been processed before them, even though they filed after. [00:50:27] Speaker 05: That's kind of what I'm interested in. [00:50:30] Speaker 03: And again, I have to apologize to the court. [00:50:31] Speaker 03: I don't have any answer to that question. [00:50:33] Speaker 03: I don't think it was raised to lose this distinction between them. [00:50:37] Speaker 03: And I apologize. [00:50:38] Speaker 03: I should have an answer. [00:50:47] Speaker 03: I would also like to point out that although there's no right line rule, district courts have [00:50:53] Speaker 03: in this district, in this district. [00:50:55] Speaker 03: Bad delays of five, six, seven years are generally unreasonable. [00:50:59] Speaker 03: But here we have delays of less than three years from when the petitions were filed, November 2019, when litigation commenced. [00:51:07] Speaker 03: And that for approximately nine of those months, USCIS, congressional authorization to approve petitions. [00:51:13] Speaker 05: And they've- Can you address the blanket expedites? [00:51:17] Speaker 05: Yes. [00:51:17] Speaker 05: So that's not part of the rule of reason. [00:51:19] Speaker 05: So if there were blanket expedites, [00:51:22] Speaker 05: That would not be following your rule of reason. [00:51:24] Speaker 05: Correct. [00:51:25] Speaker 03: So there's no, there's probably no such thing as a blanket expedite. [00:51:28] Speaker 03: It was a procedure for requesting expedites. [00:51:32] Speaker 03: We're raising allegations as to, that they were improperly granting requests to expedite in 2017 in connection with an equestrian center or a international force show in 2018, that the effects of those continued on through 2018. [00:51:52] Speaker 03: And the question of whether or not they were properly granting these expedites, I think, has nothing to do with whether or not they can be entitled to a judicial order. [00:52:03] Speaker 05: So your friend on the other side, I thought, said that that expedite was in effect through 2022, or somehow it did affect his client's place in the queue. [00:52:16] Speaker 03: I don't think there are any factual allegations to connect those allegations to [00:52:21] Speaker 03: these particular petitions. [00:52:24] Speaker 03: And I don't believe for the reasons, Judge, that the question of whether or not they were properly granting expedites or whether some of the expedites should have been granted but other later ones shouldn't have been granted are a basis for rewarding judicial relief to these with respect to these. [00:52:44] Speaker 05: Would you agree there's sort of a legal theory issue and then there's a factual allegations issue? [00:52:50] Speaker 05: If there were, I think it would be a sufficient legal theory to say that you're saying you have a rule of reason, it's FIFO subject to visa availability, but the agency is actually doing something that's not subject to the rule of reason, which is taking a project and expediting all the EB-5 applications associated with that project. [00:53:11] Speaker 05: That would theoretically state a claim, but if there are no factual allegations to back it up, then [00:53:19] Speaker 05: that complaint would still be dismissed. [00:53:20] Speaker 03: Do you agree with that? [00:53:21] Speaker 03: So I agree that there's no factual allegations to back that up. [00:53:24] Speaker 03: I would ask the court to consider it. [00:53:27] Speaker 05: But what's your answer to whether that theory would be sufficient? [00:53:30] Speaker 03: Perhaps not, based on this court's precedent in Citizens for Responsibility and Ethics of Washington v. Trump decision from 2019. [00:53:37] Speaker 03: It was a mandamus case in which this court held that a district court may properly consider a memo on its website and a motion to dismiss stage citing it [00:53:48] Speaker 03: even though the very fact that there's a memo, there's a policy, doesn't guarantee that that policy is being followed. [00:54:00] Speaker 03: And the reason is that plaintiff must falsely allege that the government is defying the law. [00:54:06] Speaker 05: Isn't that in tension with your position that what is on the website is the rule of law? [00:54:13] Speaker 05: You're trying to rely on what's on the website to say, this is the rule of reason, this is what we do. [00:54:17] Speaker 05: And now I'm saying, if you're not following that rule of reason, is that a basis to challenge you? [00:54:21] Speaker 05: And you're saying, no, because we don't have to follow the policy. [00:54:24] Speaker 03: How can that be? [00:54:25] Speaker 03: Of course, the government has to follow its own policies. [00:54:28] Speaker 03: If the government's not following its policies, that's a real problem. [00:54:31] Speaker 03: But what I'm saying is it doesn't follow logically. [00:54:34] Speaker 03: And if they did something, they granted some expedites that they shouldn't have granted, [00:54:41] Speaker 03: these above the 13,000 plus petitions pending these four petitions and get ordered. [00:54:47] Speaker 05: But if you, if you granted policies, ex blanket expedites that are in conflict with your rule of reason, and it affected the petitioners by bumping them out of line, why wouldn't they have a cause of action? [00:55:03] Speaker 05: Cause you're not following your rule of reason. [00:55:04] Speaker 05: So you can't rely on that rule of reason if you're not following it. [00:55:09] Speaker 03: Well, the fact that, [00:55:11] Speaker 03: particular adjudicators may have made mistakes, granted a request under the agency's policy. [00:55:18] Speaker 03: That by itself is not enough to... Is it not? [00:55:23] Speaker 06: I mean, so they don't have access to information. [00:55:28] Speaker 06: Your, I take it saying there is a FIFO policy, subject to caps, one assumes that that's first in, first out. [00:55:39] Speaker 06: There may be various other carve-outs, lawful or not, that have caused some later filed applications to be [00:55:52] Speaker 06: decided earlier, but assume each of those is either legitimate or just a done deal, still credit our use of FIFO subject to CAPS. [00:56:08] Speaker 06: And I think they're saying, well, why should we credit that if we hear about a lot of later filers who are getting approved [00:56:17] Speaker 06: Why should we assume your version of the facts, which is that, well, that was a horse show, and well, that's an abandoned policy that was authorized then but is no longer? [00:56:29] Speaker 06: They've raised some questions about the adherence to the rule of reason that the government poses. [00:56:40] Speaker 03: I understand, but this was said. [00:56:44] Speaker 03: The track factors are not very clear. [00:56:46] Speaker 03: They are the actors to guide the exercise of traditional disease. [00:56:53] Speaker 03: And here, you know, the judge also would say, even if he were to conclude that the delay was unreasonable, the balance of the factors still kept in favor. [00:57:05] Speaker 06: That is assuming that everything behind closed doors is proceeding with regularity. [00:57:15] Speaker 06: And we have other precedent that says, hey, when people aren't being treated equally or when there's reason to think that stated policy is not consistently being followed, that's a different story. [00:57:30] Speaker 06: And so I think we're trying to understand whether the complaint has plausibly alleged a case that falls into that category. [00:57:41] Speaker 03: I see my time is about to expire. [00:57:43] Speaker 03: If I could just make two points. [00:57:45] Speaker 03: Go ahead. [00:57:45] Speaker 03: Thank you. [00:57:47] Speaker 03: One, we've never put this into contemplate some type of forensic style. [00:57:55] Speaker 03: We will go back and look at all petitions for X number of years, however many thousands, to determine which ones, when they were granted, and whether or not the government can prove [00:58:10] Speaker 03: whether it was a good reason why they were approved or adjudicated at the time. [00:58:17] Speaker 03: And this court has never contemplated that type of relief. [00:58:21] Speaker 03: We're not writing a blank slate. [00:58:23] Speaker 03: There is, of course, cases in district courts supporting the decision, the two district courts here. [00:58:30] Speaker 03: For those reasons, the district court decisions could be affirmed. [00:58:33] Speaker 03: Thank you. [00:58:45] Speaker 01: We have your argument. [00:58:50] Speaker 01: Yeah, you were out of time. [00:58:52] Speaker 01: Does anybody have questions? [00:58:57] Speaker 06: I'd be happy to hear a one-minute rebuttal if you're willing. [00:59:05] Speaker 02: I'll be at 59 seconds. [00:59:08] Speaker 02: So if you look at pages 8 through 12 of the government's brief, they described these availability approaches [00:59:15] Speaker 02: And it's not by country. [00:59:17] Speaker 02: And so our Mr. Jacosta always had a visa available. [00:59:21] Speaker 02: And so if they want to tell us that we're going to be jumping the line, but if they're jumping the line, it's OK. [00:59:27] Speaker 02: That's a plausible case. [00:59:29] Speaker 02: If they want to eat the line saying that if you grant relief, Your Honor, that you're going to be jumping the line, but they've already jumped it and they're not following the rule of reason, that's a plausible case for unreasonable delay under the administrative procedure. [00:59:41] Speaker 02: That's what we want. [00:59:42] Speaker 02: That's what we just want to date in court. [00:59:44] Speaker 02: Thank you, Your Honor. [00:59:46] Speaker 03: Did you want to hear from Mr. Bennett? [00:59:48] Speaker 03: One minute. [00:59:50] Speaker 00: Thank you, honors. [00:59:56] Speaker 00: If indeed the government's accurate, this is a line, then any blanket expedite that's unlawful pushes my clients back by definition because it's a line. [01:00:08] Speaker 00: They're getting in front of the grocery store. [01:00:09] Speaker 05: You just have to allege that there is a blanket expedite. [01:00:12] Speaker 00: Well, remember, the blanket expedite was a one-time thing done in 2017 that extended all the way through 2021. [01:00:18] Speaker 05: Why do you think it extended? [01:00:20] Speaker 05: Why do you think it extended to 2021? [01:00:21] Speaker 05: They said it was over. [01:00:22] Speaker 00: The government's emails indicate that they stopped expediting these in 2021. [01:00:29] Speaker 00: They sent out letters to investors who expected the expedite and said, oh, we're not doing that anymore. [01:00:35] Speaker 00: And again, then you see, and then they want to do an investigation. [01:00:37] Speaker 00: They stopped until the new administration came in, did an investigation, and [01:00:42] Speaker 00: wrote a lot of memos to try to protect themselves. [01:00:44] Speaker 00: And for that reason, there is no time or reason to this process. [01:00:47] Speaker 00: And that's why we stated an unreasonable delay claim. [01:00:49] Speaker 00: Thank you, Honors.