Issue Preclusion As To The Tenant-Occupancy Methodology in EB-5
There are a few recent cases that offer some potentially useful guidance on the issue of "issue preclusion". The first case is from the Ninth Circuit Court of Appeals and it specifically deals with a Petition for Review arising from Removal Proceedings. It is important to keep in mind that the Removal Context is markedly different from the Benefits Request Context within immigration law. If it weren't markedly different in nature then why would the Attorney General have separated the BIA from INS and consolidated the benefits appeals Decisions from the various Commissioners' and Directors' into the newly created AAU (later renamed AAO) way back in 1983?
The burden of proof starts out on opposite sides in these contexts. Additionally, within the Removal Context, there is a potential for and high probability of, a burden shifting to occur. While initially, the burden of proof is squarely on the Government to show that the named respondent is 1.) an alien, and 2.) removable; the respondent may choose to fight out these issues first, or simply admit them, and in either case, if and when the Government meets its initial burden, the alien will usually apply for some form of relief from removal. Certain issues, absent a material change, a change in the controlling law, or discovery of earlier fraud or deception, become affirmatively settled at some point. While a difference of opinion is normal and natural, very often such differences are irrational, and may degrade into a futile effort to rehash settled matters in order to delay the actual removal. Recalling that the first case presented is from the Removal Context, it quite succinctly spells out the four basic conditions required in order to invoke collateral estoppel, which should apply to either context.
Oyeniran v. Holder, No. 09-73683(9th Cir. March 6, 2012) , explains:
How can we make sense of, and make use of collateral estoppel for EB-5 purposes?
An EB-5 Regional Center Proposal demands a large quantity of information in the form of supporting documentation submitted as evidence with a high level of verifiable detail from reliable sources. The exacting standards employed lead to a very solid settlement of many hypertechnical matters and issues. Once the structure and methodology have been deemed reasonable; have been explicitly accepted by USCIS; and EB-5 aliens have invested millions of dollars into a large project; USCIS cannot conscionably disallow the predicted indirect job creation of a successfully accomplished, previously approved plan when adjudicating the requests for removal of conditions on status. AAO has already blocked CSC on this basis in the same way that the Ninth Circuit blocked INS from reneging on such a "contract-like" agreement.
Of particular interest (to me at any rate) in this next case excerpt is the Seventh Circuit's statement that they were ".... unable to affirm the AAO's conclusion[s] .... because .... AAO's decisions lack[ed] individualized analysis and.... [did].... not identify particular deficiencies in the substantial evidence submitted ..."
Additionally, the Court found that AAO impermissibly applied statutory changes retroactively and contrary to the terms of a settlement agreement. You'll have to read that actual case for that particular discussion. That last point is quite important in the EB-5 Regional Center investment context especially, in light of another case of particular importance, namely; Chang v. United States of America, 327 F. 3d 911 (9th Cir. 2003) which involved an attempt by INS to retroactively apply its newer interpretations as stated in the 1998 AAO EB-5 Precedents in a manner that undercut the reasonable reliance that a group of EB-5 aliens had to that point. Of course, in order to reasonably rely on its plan, the investors have to succeed with it. In the absence of the successful culmination of a particular plan, the actual results are what matter in determining whether or not, conditions will be lifted.
Siddiqui also describes a jurisdictional mess where the old and newer statutes and regulations involved collided in such a way that the Court asked the different Administrative Agencies to sort of get together and fix this mess so that this case lands back in this Court. They did as asked but it just goes to the heart of another matter that has plagued immigration proceedings in the absence of a long overdue rulemaking by USCIS, especially AAO, and better coordination between the key players in these matters.
I have noticed that the BIA and USCIS have started to work more closely of late. However, DHS and DOJ have additional communication and coordination issues to work out. Improvements are needed not just between Departments but also individually within themselves. Better coordination of efforts through improved cooperation and communication seems to be growing steadily amongst the various intradepartmental components or "sister agencies" within each Department with shared or cross-jurisdictional authority.
Siddiqui v. Holder, Nos. 09-3912, 10-1282 & 10-3221 (7th Circuit, January 12, 2012) stated:
"....... Mohsin H. Siddiqui, a native of Pakistan, appeals the denial of his legalization applications by the Administrative Appeals Office ("AAO"), the appellate body of the U.S. Citizenship and Immigration Services ("USCIS"). Siddiqui disputes the AAO's finding that he failed to prove his continuous residence in the United States and the AAO's retroactive application of the definition of "conviction," found in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, to his 1991 felony.
In the April 14, 2011, AAO non-precedent Decision pertaining to a South Dakota failed Dairy Farm Regional Center affiliated I-829 case provides some analysis invoking the reasoning of the Ninth Circuit in the Chang case as to the inability of USCIS to go back and re-adjudicate an I-526 at the I-829 stage. In essence, AAO esstopped CSC and precluded the issue from further consideration.
""The Ninth Circuit, in Chang v. United States of America, 327 F. 3d 911 (9th Cir. 2003), held that, during the adjudication of a Form I-829, USCIS could not review whether the initial plan submitted with the Form I-526 was qualifying, only whether the alien sustained that plan. Specifically, the court stated that the Form I-526 approval may not be "decoupled from [Form] I-829 approval." Id. The court further stated that Form I-829 approval is predicted by Form I-526 approval and "successful execution of the approved plan." Id. As noted by the court in Chang, 327 F. 3d at 927, far more evidence is required in support of the Form 1-526 petition. In fact, as stated above, the regulation at 8 C.F.R. § 204.6(j)(4)(iii) expressly requires the submission of reasonable methodologies for determining indirect job creation at the Form 1-526 stage. At the Form I-829 stage, the petitioner is not required to submit such evidence, although the petitioner must use the methodologies approved at the Form I-526 stage to demonstrate that his investment has created the requisite employment.
Please read and/or review these cases and those cited in them for more possibilities. The South Dakota case was ultimately dismissed by AAO because the farm failed in its execution of its plan.
3(1): Initial I-924 and/or Exemplar I-526 as an I-924 Amendment then an ACTUAL I-526 visa petition followed up with (2): the individual I-829.
4See: http://law.justia.com/cases/federal/appellate-courts/F3/327/911/625674/ and the associated follow up challenge Spencer Enterprises Inc v. United States, No.?01-16391.(9th Cir, 9/17/03) affirming District Court and clarifying jurisdiction, at: http://caselaw.findlaw.com/us-9th-circuit/1330636.html affirmed: Spencer et al. v. USA (E.D. Calif. 3/28/01) at: http://www.slideshare.net/BigJoe5/spencer-enterprises-eb5decision-district-court-2001
5These and related issues are among USCIS' 2012 Strategic Priorities, see: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1a23b3977ade5310VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD
Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.