[00:00:00] Speaker 01:
Case number 24-5143, Bowley Eddell, the balance, versus Marco Rubio, Secretary, U.S.

[00:00:07] Speaker 01:
Department of State, and Kristi Noem, Secretary, U.S.

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Department of Homeland Security, Mr. Bannas, for the balance, Ms.

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McDade, for the police.

[00:00:16] Speaker 04:
Good morning, Your Honors, and may it please the court.

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My name is Brad Bannas.

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I represent the appellants in this case.

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The Department of State has required a discrete duty to allocate immigrant visas to non-citizens who have approved EB-5 petitions to prevent wastage and to stop age out for their minor derivatives.

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The lower court found otherwise.

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For that reason, this court should reverse and remand with further instructions to proceed past the motion to dismiss stage.

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This case is a straightforward case of statutory interpretation.

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Does the statute or the regulations impose a required and discreet duty under Norton v. Southern Utah Wildlife Alliance?

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We would take you straight to the text of 8 USC 1153B5A that is a mandatory obligation that says visas shall be made available.

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to qualified immigrants seeking to enter the United States for the purpose of engaging in new commercial enterprise.

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That is mandatory language.

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And the only consistent reading of qualified immigrant would be an immigrant who has a approved visa petition.

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And we see this in the structure of the statute as well.

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That seems like actually there's a lot of gaps in that argument in the sense that visas shall be made available to qualified immigrants could easily read that to say some visas shall be made available to some qualified.

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There has to be some assignment, not that every qualified immigrant must be assigned a visa.

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Your honor, I don't know how a qualified immigrant would not be assigned a visa number.

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They're qualified.

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They have been deemed eligible for the benefit.

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If it just said, visa shall be made available to immigrants seeking to enter the United States, that's one thing.

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But Congress chose to qualify it with the word qualified.

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And that means something.

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The plane.

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But you know that there are country caps and visa type caps.

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And so there are actually every year many, many qualified

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applicants who don't get visas.

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And, Your Honor, those apply to issuance of visas, not allocation.

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The Department of State has seemingly combined those two steps, and that's why we see thousands of visas go wasted, because now those country caps are dependent upon the conditions in a foreign country where that consulate is.

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What Congress envisioned was that once they were allocated,

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it would be an indication that those visas were required and such that at the annual fiscal year turnover, we would determine how many of those EB-5 visas were not required.

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The Department of State interprets that to be not issued.

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And so, in our brief, we note, between 2019 and 2023, I believe, we lost 30,000 EB-5 visas.

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If they had been allocated- When you say we lost, who's the we?

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My clients, Your Honor.

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Well, but the visas are there, as you know, there's a

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a system for rolling them over to other categories, other employment categories, family categories.

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And you're not asserting that nobody is using those visas.

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It's just that they were not allocated to people in the queue where your clients are waiting.

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They were lost to the EB-5 category, Your Honor, because they did roll over.

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But they were in that.

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And you have in your brief, I mean, I can ask the government this, but you have

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A table showing.

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number of people, the maximum that would be allowable given the country and EB-5 caps, and then how many were given to EB-5.

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But isn't one of the issues that the people who are seeking adjustment of status effectively into this employment investor category are counted against the percentage cap and the country cap.

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So they don't need visas, but they're counted against that

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Your honor, even Adjustment of Status folks are held to the same line for issuance.

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And again, I think a lot of your commentary, your honor, is based on issuance, not allocation.

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There are no limits.

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But the statute doesn't separately talk about allocation.

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It certainly does, your honor.

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If we look at 1153,

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E, immigrant visas made available under subsection B shall be issued to eligible immigrants.

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Made available is the same language I just quoted you from 1153B5A.

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The reason I'm using the word allocation, your honor, is that under the regulations they promulgated, instead of using the awkward language of make available or made available, they've used the word allocation.

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And that's at 22CFR4251B that says, Department of State shall allocate visa numbers

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for use in connection with issuance.

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So allocation and issuance are two different things.

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And the consequences of allocation, Your Honor, are significant.

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One, it does prevent wastage because if it's allocated, there is no argument that is not required.

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Because the Department of State has interpreted not required to be not issued, it means this oversubscribed category, because they're not allocating, is losing numbers to other categories, EB1 primarily, despite the fact they're oversubscribed.

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Those visas are required.

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The tool that Congress created to notify themselves or the Department of State to keep track of that is this allocation.

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They just don't do it.

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The other consequence is that the protections against age out for children do not apply until there's an allocation.

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And so you have, I have clients who have children who are aging out in December, your honor.

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And if they're not allocated, that means when they made the investment in 2016 when their children were true children,

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they're not going to be able to use the visa because they're over 21, even implying the Child Status Protection Act.

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So allocation is a key thing here.

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And I read the government's brief as somewhat of a concession that they just don't do it until the very end when the consular officer looks up a visa number and issues.

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And I think that structural problem

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violates the statute, violates their own regulations.

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And the real world consequences are for 308 of my clients.

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Not only are visa numbers being wasted such that their line keeps getting longer despite the fact that it's oversubscribed, but also their children are aging out and there's no end in sight, especially with the new program that came in 2022 that gives priority

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to recent visa applicants versus the folks who've been waiting 10 years.

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This becomes even more important after what's called the Reform and Integrity Act, which has been in play the entire time this case has been in front of the courts.

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I would just note, Your Honor, that the government spends a lot of time arguing that the right word to be interpreting here is a lot.

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and that's in 1153B, kind of the top line paragraph.

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I would suggest that completely is just inapposite that they don't address the make available language and that the make available language is key to the structural argument that 1153E does recognize a two-step process.

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1153G requires the Department of State to give notification

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to folks when it's allocated.

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And if they don't respond within a year, they're terminated in that.

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If you work against your clients in the sense that.

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So none of your your clients has a current priority date.

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No, you are.

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So the reason that, as I understand it, the State Department has adopted the priority date system is that in the past they were processing

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visa applications from people who had no chance of getting them in the current year or next year or next year because of the oversubscription.

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So they created the priority days so that they would focus on people from countries and in categories where they had a

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a reasonable chance, a good prospect of getting a visa in the current year.

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And so your clients are just not even in, even if there wasn't this offsetting from the people on Adjustment of Status, even if all those visas are allocated, your clients are not going to get a visa in the current year.

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So it would be a different kind of waste if they were assigned a number

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and then weren't eligible because the caps prevented them.

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Wouldn't those visas be more wasted because they wouldn't be rolling over?

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I think that that is a conflation of issuance versus allocation.

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I think the department, my understanding is that they're quite reasonably trying to actually

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have allocation be closer in time and closer in sort of information availability to issuance precisely so that they don't end up with wastage or misallocation of visas.

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Again, Your Honor, that's premised on the idea that it has to be issued to be required.

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I would suggest that allocation under the wastage provision, Your Honor, 1153B1A, the language is, plus any visa is not required.

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That's not issued.

[00:10:06] Speaker 04:
That's not required.

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How do we indicate they're required?

[00:10:09] Speaker 04:
We allocate them to qualified immigrants.

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And again, allocation and issuance are two separate things.

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One is done by the consulate officer abroad.

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One is done by the NVC at the department under the regulations or the centralized control.

[00:10:23] Speaker 04:
I see I'm way over my time, Your Honor.

[00:10:25] Speaker 04:
I'll sit down.

[00:10:25] Speaker 04:
Thank you.

[00:10:26] Speaker 04:
I have one quick question.

[00:10:28] Speaker 04:
Yes, Your Honor.

[00:10:29] Speaker 00:
A couple of quick questions.

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And to the extent it's not in the public record, then you can say so.

[00:10:40] Speaker 00:
But in the district court, it was unclear whether it's Bo Lee or Lee Bo.

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Do you know which the right order is?

[00:10:50] Speaker 00:
Your Honor, it's Bo Lee.

[00:10:51] Speaker 00:
OK, great.

[00:10:52] Speaker 00:
My apologies.

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And is he living out of the country right now?

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Yes, Your Honor.

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All right, thanks.

[00:10:58] Speaker 00:
Thank you.

[00:11:20] Speaker 02:
May it please the court, Alexandra McTig for the government.

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This court should affirm the district court's dismissal of the second amended complaint for failure to state a claim.

[00:11:31] Speaker 02:
Counts three and four of that complaint alleged unlawful withholding or unreasonable delay under the APA.

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But to state such a claim, the plaintiff must identify a discrete action that the agency is legally required to take.

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And while they've identified a discrete action,

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the idea that a visa must be, a visa number must be assigned to an approved petition when the State Department receives that petition from USCIS.

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They haven't shown where that action that they allege is legally required.

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The appellants have come up with a three-step process.

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The petition's approved, the visa's allocated, and then the visa issues.

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But there's no three-step process in the statute.

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There's no requirement in 1153 to assign a particular visa number to a particular petition.

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And the reality is that when it comes to visa processing, Congress just did not legislate to that level of detail.

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So the issue here is whether this discrete action that they came up with that a visa number must be assigned to the approved petition before the visa applications adjudicated is legally required and the State Department is not legally required to take it.

[00:12:46] Speaker 02:
A lot of the issue comes from the use of the word allocation in the briefing and in 1153.

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And the crux of the dispute really is does 1153 contain petition-specific allocation or is it really about divvying up the pool of non-immigrant visas among the different non-immigrant categories?

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This is a question of statutory interpretation.

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But where it gets confused is the meaning assigned by both sides.

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So the appellants say allocation means to assign a specific visa number to a specific petition.

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Whereas the government says, no, 1153 is not about assigning visa numbers to petitions.

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It's about the overall pool of worldwide visas and how that's divided among the different non-immigrant classes in that statute.

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And you can see that from the way the words in the statute are used.

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So 1153B is employment-based visas.

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It uses allocation in the title.

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It uses a lot in the introductory paragraph that aliens show.

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It says allocation for immigrants, not allocation for visas in the title of 1153B.

[00:14:01] Speaker 02:
Right, but if you look at this statutory text, it talks about allocating or allotting visas to aliens who are qualified.

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And so the title is informative, but it's not going to change the statutory text itself.

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But when you look at allocation, allot, or make available, all of this is the same in that it's referring back to the worldwide levels in 1151.

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It's referring back to

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the overall pool of visas.

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And it says this when it says, make available in a number not to exceed a percentage of the worldwide limits, plus any fall down visas.

[00:14:40] Speaker 03:
What's your response to the challenges of, you know, we know that China and now India are oversubscribed and people in order to even be in the queue have to commit an investment that's tied up for

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the case of these plaintiffs often many years without even an ability to actually qualify.

[00:15:04] Speaker 03:
And the age-out issue for the minor children, what's the State Department's response to those problems?

[00:15:13] Speaker 02:
The State Department can't control the number of people who apply and the number of visas that are set by Congress.

[00:15:18] Speaker 02:
And all of this really is informed by the statutory limits set by Congress and the amount of demand that is coming from certain countries.

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And just based on the way the statute is set up and the statutory scheme, this is what Congress has decided.

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And so it is an unfortunate situation, but it is just the nature of the scheme that Congress created.

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And so, you know, I want to point out when it comes to the idea of not required visas,

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The visas that are not required in 1153, those are the fall down provisions in 1153.

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So not required visas in any given fiscal year can move to a different category within the same fiscal year, but those are not the visas that roll over at the end of the fiscal year.

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So 1151 talks about the rollover provisions at the end of the fiscal year.

[00:16:14] Speaker 02:
We're really talking about moving visas around within the fiscal year.

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If they're not used at the end of the fiscal year, they roll over under 1151 into the next year.

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What is the relationship between visas and visa numbers?

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We have the argument from the plaintiffs that the State Department is sort of collapsing them.

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That is actually my understanding is that the State Department is assigning the numbers pretty late in the game.

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Is that right?

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And is that consistent with the statute?

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The state department does assign the numbers late in the game.

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It pulls a number when it's ready to issue a visa.

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It is consistent with the statute because what the statute is talking about is making the pool of visas available for use.

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And so when we're talking about visa numbers versus visas,

[00:17:00] Speaker 02:
you know, the language does get a little bit loose.

[00:17:03] Speaker 02:
But the reality is that the visa is technically the document that allows someone to present themselves at the border for admission.

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Whereas the visa number is the accounting device that the State Department uses to make sure that it's actually complying with the limits that Congress set.

[00:17:18] Speaker 02:
So if it knows it has X number of thousands of visas, then it's going to number those visas in accordance with the number that has been allocated by Congress.

[00:17:28] Speaker 03:
So just reading your brief, you talk about visa numbers being available to applicants when their priority date is current.

[00:17:36] Speaker 03:
But then that's at 37 of your brief, at 45 of your brief, you say the department assigns a particular visa number when it issues the visa.

[00:17:45] Speaker 03:
And then is it GRU or GRUI, the declaration?

[00:17:49] Speaker 03:
I think it's GRU.

[00:17:52] Speaker 03:
The government's GRU declaration says an applicant is allotted a visa number after the application is documentarily complete and they have a current priority date.

[00:18:06] Speaker 03:
There's daylight between those different descriptions.

[00:18:09] Speaker 03:
What's your most accurate description about when a visa number is actually assigned or allotted?

[00:18:19] Speaker 02:
So we're talking about two separate issues.

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One is the idea of there are visa numbers generally available at the beginning of the fiscal year.

[00:18:27] Speaker 02:
And so when you have visa numbers generally available when the fiscal year rolls over, those visa numbers are then used throughout the year as visas are approved.

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Somebody knows if a visa is potentially available to them based on the visa bulletin.

[00:18:47] Speaker 02:
The visa bulletin is the waiting list.

[00:18:49] Speaker 02:
Priority date.

[00:18:50] Speaker 02:
Right.

[00:18:50] Speaker 02:
So it's the priority date if it's oversubscribed.

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Otherwise, it'll just say current and they can apply.

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So based on their priority date, they'll know if somewhere in that pool of visas they're eligible.

[00:19:02] Speaker 02:
But then they have to be documentarily complete, and they have to have an interview.

[00:19:09] Speaker 02:
And so there's this process they go through to actually get the visa issuance, which may or may not happen.

[00:19:14] Speaker 03:
And USCIS decides whether the petition is not documentarily complete.

[00:19:20] Speaker 03:
That's something State Department does later.

[00:19:22] Speaker 02:
Correct.

[00:19:22] Speaker 02:
So USCIS will evaluate the petition and approve or deny it.

[00:19:26] Speaker 02:
Once it's approved, it gets forwarded to the State Department.

[00:19:29] Speaker 02:
Then the State Department has this documentarily complete portion of it because they have to run background checks and ask for other forms and things before someone can actually get the interview and the ultimate visa.

[00:19:42] Speaker 03:
So an approved petition in common sense parlance is not really approved.

[00:19:48] Speaker 03:
It's a threshold clearing and pushing along.

[00:19:55] Speaker 02:
So it is approved, but the petition and the visa are separate things.

[00:19:58] Speaker 02:
The petition doesn't grant legal status necessarily.

[00:20:03] Speaker 02:
The petition is not the visa.

[00:20:05] Speaker 02:
It's not what allows you to come into the United States.

[00:20:08] Speaker 02:
a step in the process.

[00:20:12] Speaker 03:
So it doesn't render you eligible for a visa yet.

[00:20:14] Speaker 03:
It renders you potentially eligible.

[00:20:16] Speaker 02:
Correct.

[00:20:17] Speaker 02:
Right.

[00:20:17] Speaker 02:
You could have an approved petition and ultimately have your visa denied if, for example, the State Department, if you don't apply for the visa, if you don't turn in all the evidence the State Department requests, if you lie during your interview.

[00:20:30] Speaker 02:
I mean, there are any number of ways that ultimately your visa could be denied, even though USCIS approved the petition saying, well, yes,

[00:20:38] Speaker 02:
You know, we're looking at what's here and based on what we see, we're going to approve this.

[00:20:43] Speaker 03:
Is there any point at which the allocating of a visa number becomes mandatory?

[00:20:49] Speaker 03:
Any point in the process?

[00:20:56] Speaker 02:
So it depends on what is meant by allocating, I think, and where in the process we're referring to.

[00:21:04] Speaker 02:
So I want to be a little bit careful.

[00:21:06] Speaker 02:
But so for example, a visa number will be assigned to a particular petition when they're approving it, right?

[00:21:13] Speaker 02:
Because that is how State Department keeps track of how many visas they've used to make sure they don't go over the limits.

[00:21:21] Speaker 03:
When approving the visa.

[00:21:23] Speaker 02:
Right.

[00:21:23] Speaker 02:
So at that point in time, yes, State Department will pull a visa number.

[00:21:27] Speaker 02:
They can't approve a visa without a visa number because they have to comply with Congress's limits and all these other restrictions Congress has put, for example, approving them based on the priority dates.

[00:21:39] Speaker 03:
So the question I had was, is there ever a point at which the State Department has a mandatory duty to

[00:21:51] Speaker 03:
I don't want to use their word.

[00:21:52] Speaker 03:
You can use it to assign a visa number.

[00:21:56] Speaker 03:
And your answer is when the visa is issued.

[00:22:00] Speaker 03:
At least when the visa is issued.

[00:22:02] Speaker 03:
It could do it earlier.

[00:22:03] Speaker 03:
But it's not mandatory unless it's controlling the inventory of visas.

[00:22:10] Speaker 03:
You can't grant a visa without a visa number.

[00:22:13] Speaker 03:
But I take you to be saying that there's not a mandatory time prior to the actual issuance when a visa number has to be assigned to someone who's eligible, who's documentarily complete, who's got a priority date.

[00:22:28] Speaker 03:
I just want to understand the State Department's actual practice and its understanding.

[00:22:31] Speaker 02:
Yes.

[00:22:32] Speaker 02:
No, that is correct.

[00:22:32] Speaker 02:
There's no time before that that they have to sign a visa number to the

[00:22:39] Speaker 02:
the application, right?

[00:22:41] Speaker 02:
And so, right.

[00:22:42] Speaker 02:
And so I guess I was hung up a little bit on the, is there a mandatory duty?

[00:22:46] Speaker 02:
I mean, this is the process that State Department uses.

[00:22:49] Speaker 02:
I'm not sure the statute specifically says the State Department shall assign a visa number at this point in time.

[00:22:54] Speaker 02:
It's just, this is how they keep track of the overall numbers to comply with the limits.

[00:23:02] Speaker 02:
Thank you.

[00:23:09] Speaker 03:
Mr. Bonas, have any rebuttal time?

[00:23:11] Speaker 01:
All right.

[00:23:14] Speaker 03:
We use your time on the direct argument, but you can take a minute or two if you want to for rebuttal.

[00:23:20] Speaker 04:
I'll be very brief, Your Honor.

[00:23:22] Speaker 04:
The Department of State can't tell you when allocation occurs.

[00:23:25] Speaker 04:
That's what I just heard.

[00:23:26] Speaker 04:
You asked her, when does allocation occur?

[00:23:27] Speaker 04:
And she said, it depends on what you mean by allocation.

[00:23:29] Speaker 04:
This is clear.

[00:23:31] Speaker 04:
The statute references, the only regulations say they shall allocate.

[00:23:36] Speaker 04:
It's just not part of the process.

[00:23:38] Speaker 04:
And that's harming us.

[00:23:39] Speaker 04:
And specifically, what we allege in this case is that allocation occurs when the National Visa Center, which is a domestic Department of State office in New Hampshire, they send out a letter to our clients that says, congratulations, we're going to invite you to apply for your immigrant visa.

[00:23:54] Speaker 04:
It's a DS-260 is the form number because everything in immigration is forms.

[00:23:58] Speaker 04:
That's the moment it's allocated.

[00:24:00] Speaker 04:
That's the moment when

[00:24:02] Speaker 04:
when they should be considered used or required visa, and that's when their children's ages are set.

[00:24:09] Speaker 04:
That has not happened for, I think, 14 people have mooted out of my case, but 290 people, Your Honor.

[00:24:16] Speaker 04:
That has not happened for more than a decade.

[00:24:19] Speaker 04:
and they are suffering because of it.

[00:24:21] Speaker 04:
And the Department of State can't even tell you when they allocate a visa.

[00:24:24] Speaker 04:
That at a minimum is a factual question that requires us to go back to the lower court for us to figure out what they actually do.

[00:24:32] Speaker 04:
We're relying on a declaration that is untested despite the mandatory obligations in the statute and the regulation.

[00:24:40] Speaker 04:
And I would just say this too, Your Honor, Congress did not intend, could not have intended

[00:24:46] Speaker 04:
under the rollover provisions that visas for an oversubscribed category somehow are not required.

[00:24:52] Speaker 04:
That's the language of the statute.

[00:24:53] Speaker 04:
It rolls over if it's not required, yet Department of State is in here saying this oversubscribed category should just be rolling over every year because they fail to issue the visas.

[00:25:02] Speaker 04:
That cannot be what Congress required.

[00:25:03] Speaker 04:
Congress intended a three-step process.

[00:25:06] Speaker 04:
The agency has combined it to two, and my plaintiffs are suffering because of that.

[00:25:10] Speaker 04:
Thank you, Your Honors.

[00:25:11] Speaker 03:
Thank you.

[00:25:11] Speaker 03:
I'm sorry, I had a question for Ms.

[00:25:14] Speaker 03:
McTig that I forgot to ask, which was about the ostensibly wasted visas.

[00:25:21] Speaker 03:
Once the country cap and the EB-5 percentage caps are applied, there's a number calculated that are theoretically available.

[00:25:31] Speaker 03:
And there's a table in the plaintiff's brief that says,

[00:25:34] Speaker 03:
The State Department has actually used a much smaller number for the past five, seven years of the EB-5 visas.

[00:25:44] Speaker 03:
Can you explain why that is?

[00:25:45] Speaker 03:
Am I right in assuming that part of that is that it's taken up through adjustment of status?

[00:25:50] Speaker 03:
Is there some other answer?

[00:25:51] Speaker 02:
Some of it is adjustment of status, I think.

[00:25:55] Speaker 02:
I will say, Your Honor, that if you look at that table, the majority of the unused visas were during COVID, which was just an unprecedented time.

[00:26:03] Speaker 02:
I think COVID really explains the processing delays for the majority of those visas.

[00:26:08] Speaker 02:
And I believe we say in our brief that in 2023, the State Department was using all of

[00:26:15] Speaker 02:
the visas for EB5 in that particular year.

[00:26:18] Speaker 02:
The reality is that this is a process that is constantly moving and they're constantly getting information from the posts around the world, from the adjustment of status in the United States.

[00:26:30] Speaker 02:
There's a limit in the number of people who can come in.

[00:26:32] Speaker 02:
And so every year they are trying to hit the limits with, again, the exception of COVID

[00:26:39] Speaker 03:
So in there, they have a 2023 line on page four of their brief that says annual allocation 7,703, but EB5s issued 5,685.

[00:26:49] Speaker 03:
And they call the 2018 difference a lost.

[00:26:55] Speaker 03:
And I'm just, you don't have any information whether those are going counted as

[00:27:02] Speaker 03:
against these caps, but they are obtained through adjustment of status where people already have visas?

[00:27:08] Speaker 03:
Or is somebody who's adjusting status, are they also using a visa?

[00:27:12] Speaker 03:
They're also using a visa.

[00:27:15] Speaker 02:
So adjustment of status comes from the same pool of numbers, but they don't have a visa.

[00:27:22] Speaker 03:
They don't get a visa?

[00:27:23] Speaker 03:
Right, because they're finishing up on a student visa and wanting to have an EB-5 investor status to stay when they need a visa?

[00:27:31] Speaker 02:
student visas are whatever a little bit yeah um a highly skilled worker visa or something i mean they have status the visa allows them to come in and out of the united states right so you don't really have information on i don't i'm sorry your honor but but again i mean everything rolls over the following year it's not like the visas just poof disappear um but again the majority of those numbers happened during covid and in 2023 i do believe that the state department used um

[00:28:00] Speaker 02:
all or virtually all of the EB-5 visas.

[00:28:02] Speaker 02:
So this is just a wrong chart here?

[00:28:05] Speaker 02:
I don't know where the chart came from.

[00:28:09] Speaker 02:
OK.

[00:28:10] Speaker 02:
Thank you.

[00:28:11] Speaker 02:
Thank you, Your Honor.

[00:28:12] Speaker 02:
Case is submitted.