UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LIWEI AN

Plaintiff, v. Civ. Action No. 21-385 ALEJANDRO MAYORKAS, et al., (EGS) Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Liwei An (“Mr. An”), brings this lawsuit against

Alejandro Mayorkas, Secretary of the U.S. Department of Homeland

Security; Tracy Renaud, Acting Director of the U.S. Citizenship

and Immigration Services; Sarah Kendall, Chief, Immigrant

Investor Program Office; and the U.S. Citizenship and

Immigration Services (“USCIS”) (collectively “Defendants”)

pursuant to the Administrative Procedure Act (“APA”),

; and the Mandamus Act,

; seeking a writ of

mandamus and/or an order pursuant to the APA requiring

Defendants to adjudicate his I-526 petition within 30 days. See

generally Compl., ECF No. 1.

Pending before the Court is Defendants’ Motion to Dismiss.

See ECF No. 6. Upon careful consideration of the motion, the

opposition and reply thereto, and the applicable law,

Defendants’ Motion to Dismiss is DENIED.

1 I. Background

The Immigration and Nationality Act (“INA”) authorizes the

United States to issue visas to certain qualified immigrants.

See

(a) (codified as

(b)(5)(1990)). In 1990, Congress created the EB-5 Visa

Program as one of five categories of employment-based

immigration preferences to “create new employment for U.S.

workers and to infuse new capital into the country.” S. Rep. No.

101-55, at 21 (1989). To be eligible for an EB-5 visa, an alien

must “invest[]” a certain amount of “capital” in a “commercial

enterprise” to “benefit the United States economy and create

full-time employment for not fewer than [ten] United States

citizens or aliens lawfully admitted . . . .”

(b)(5)(A). An alien investor must generally invest

$1,000,000 of “capital” into a new commercial enterprise, but in

economically depressed areas, or “targeted employment areas,”

the required amount of capital may be reduced to $500,000.

§

1153(b)(5)(C);

(f) (regulating the “required

amounts of capital”). Aliens who meet these requirements may

file a Form I-526 petition.

(a);

(a).

Mr. An, a native and citizen of China, filed an I-526

petition on July 16, 2015. Compl., ECF No. 1 ¶ 18. As of the

filing of the Complaint on February 12, 2021, Mr. An’s petition

2 was pending with no action from Defendants.

However, on

April 13, 2021, Defendant USCIS issued a request for evidence

(“RFE”) seeking additional information from Mr. An. Plaintiff’s

Opp’n, (“Opp’n”), ECF No. 6 at 3.

II. Standard of Review

“A federal district court may only hear a claim over which

[it] has subject matter jurisdiction; therefore, a Rule 12(b)(1)

motion for dismissal is a threshold challenge to a court's

jurisdiction.” Gregorio v. Hoover,

(D.D.C.

2017) (citation and internal quotation marks omitted). To

survive a Rule 12(b)(1) motion, the plaintiff bears the burden

of establishing that the court has jurisdiction by a

preponderance of the evidence. Lujan v. Defenders of Wildlife,

, (1992). Because Rule 12(b)(1) concerns a

court's ability to hear a particular claim, “the court must

scrutinize the plaintiff's allegations more closely when

considering a motion to dismiss pursuant to Rule 12(b)(1) than

it would under a motion to dismiss pursuant to Rule 12(b)(6).”

Schmidt v. U.S. Capitol Police Bd.,

(D.D.C. 2011) (citations omitted). In so doing, the court must

accept as true all of the factual allegations in the complaint

and draw all reasonable inferences in favor of the plaintiff,

but the court need not “accept inferences unsupported by the

facts alleged or legal conclusions that are cast as factual

3 allegations.” Rann v. Chao,

(D.D.C.

2001).

“Federal Courts lack jurisdiction to decide moot cases

because their constitutional authority extends only to actual

cases or controversies.” Iron Arrow Honor Soc’y v. Heckler,

(1983). “A motion to dismiss for mootness is

properly brought under Rule 12(b)(1) because mootness itself

deprives the court of jurisdiction.” Indian River County v.

Rogoff,

(D.D.C. 2017). “A case becomes

moot—and therefore no longer a ‘Case’ or ‘Controversy’ for

purposes of Article III—when the issues presented are no longer

live or the parties lack a legally cognizable interest in the

outcome.” Already, LLC v. Nike, Inc.,

(2013)

(internal quotation marks omitted). “This occurs when, among

other things, the court can provide no effective remedy because

a party has already obtained all the relief that [it has]

sought.” Conservation Force v. Jewell,

(D.D.C. 2013) (internal quotation marks and citation omitted).

III. Analysis

A. Mr. An’s Claim Is Not Moot

Defendants, citing persuasive authority, argue that because

the RFE has been issued, “there is no lack of action, which

renders moot any controversy over USCIS’s pace of processing

whether analyzed under the APA or the Mandamus Act” and so the

4 Complaint should be dismissed pursuant to Federal Rule of Civil

Procedure 12(b)(1). Mot. to Dismiss, ECF No. 5 at 10-11. 1 Mr. An

responds that his claim is not moot because what he seeks is a

final decision on his petition, which has not yet occurred,

Opp’n, ECF No. 6 at 5; and so the “controversy over the pace at

which Defendants are processing [Mr. An’s] petition” are not

moot, id. at 8.

The Court is persuaded that Mr. An’s claims are not moot

despite the issuance of the RFE. The Court recognizes that there

is persuasive authority that holds that the issuance of an RFE

moots an action to compel adjudication of an immigration

petition. See Xu v. Nielsen, Civ. A. No. 18-2048,

, at *1 (E.D.N.Y. May 31, 2018) (“Because there is a

Request for Evidence pending, there is no role for the Court.”);

Lin v. Johnson, Civ. A. No. 19-2878,

, at *1

(E.D.N.Y. July 29, 2019) (dismissing mandamus case as moot when

USCIS issued an RFE after plaintiff filed complaint); see also

Ye,

, at *2 (same); Lu v. Sessions, Civ. A. No.

18-1713,

, at *1 (E.D.N.Y. May 24, 2018) (“In

sending the RFE, USCIS has acted in response to plaintiff’s

[immigration] application, and this action is now moot.”).

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document.

5 Here, however, Mr. An alleges that Defendants have failed

to adjudicate his petition within a reasonable time. See Compl.,

ECF No. 1 ¶¶ 80, 84, 85. “The standard by which the Court

reviews agency ‘inaction’ under the Mandamus Act,

, is the same standard applied to claims under § 706(1) of

the APA.” Desai v. USCIS, No. 20-cv-1005 (CKK),

,

at *8 (D.D.C. Mar. 21, 2021). The reasonableness of a delay in

agency adjudication is determined with reference to the factors

set forth in Telecommunications Research & Action Center v. FCC,

(D.C. Cir. 1984) (“TRAC”). The TRAC factors are:

(1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’”

In re United Mine Workers of Am. Int’l Union,

(D.C. Cir. 1999) (quoting TRAC,

(citations

omitted)).

6 Defendants did not move to dismiss on the alternative

ground that the delay is reasonable, see generally Mot. to

Dismiss, ECF No. 5; rather Defendants raised the TRAC factors in

their Reply briefing, see generally Reply, ECF No. 7. However,

the precedent in this Circuit is that courts should not address

arguments raised for the first time in a reply brief, and the

Court declines to do so here. See, e.g., McBride v. Merrell Dow

& Pharm.,

(D.C. Cir. 1986) (“Considering an

argument advanced for the first time in a reply brief ... is not

only unfair to [a defendant], but also entails the risk of an

improvident or ill-advised opinion on the legal issues

tendered.” (citation omitted)); Conservation Force v. Salazar,

(D.D.C. 2013), aff'd

(D.C.

Cir. 2012) (forfeiting an argument made for the first time in a

reply brief); see also Jones v. Mukasey,

(D.D.C. 2008) (holding that D.C. precedent consistently submits

that courts should not address arguments raised for the first

time in a party's reply).

Since what remains at issue is whether USCIS’s more than

six-year delay in adjudicating Mr. An’s petition is reasonable,

the issuance of the RFE does not render his claim moot because

he has not “already obtained all the relief that [he has]

sought.” Conservation Force,

.

7 IV. Conclusion and Order

For the reasons explained above, it is

ORDERED that Defendants’ Motion to Dismiss, ECF No. 6, is

DENIED.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge February 22, 2022

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