2nd Hearing Update: USCIS “May Have Committed Legal Error”

Yesterday, Behring Regional Center had its second hearing before the US District Court for the Northern District of California in its third lawsuit against USCIS. The hearing was scheduled after the Judge Chhabria requested both parties to file supplemental briefs to address further the question whether Congress intended to cancel the existing Regional Center Program when it “repealed” Section 610 of the 1993 Appropriations Act (the original vehicle that established the EB-5 Regional Center Pilot Program) when it enacted the EB-5 Reform and Integrity Act (“RIA”) last March. Behring filed its supplemental brief and consented to IIUSA filing an amicus brief and participate in the hearing on these issues.

USCIS Assumed Too Much When Interpreting
EB-5 Reform and Integrity Act

Over the course of 3 hours of oral argument, Judge Chhabria made clear that “[USCIS] may have committed legal error by being way too quick to assume that the language [of RIA] means that Congress requires us to treat Regional Centers as having been deauthorized.” He said that the RIA was silent and ambiguous on whether existing Regional Centers were deauthorized by the enactment of the RIA, and that USCIS was putting “too much weight” on the “repeal” language in the RIA. He found it “highly plausible” that the use of the word “repeal” was an editor’s convention simply intended to remove the Regional Center Program from the 1993 Appropriations Act and place it in the Immigration and Nationality Act, as Behring argued.

On the other hand, he said it was also inconclusive that Congress plainly intended for Regional Centers to continue to be authorized. The court apparently is disregarding the recent letters from Congress informing the USCIS that its deauthorization is contrary to Congressional intent and that its new I-956 package is overly burdensome. But the judge likewise is giving less weight to Senator Grassley’s remarks, recognizing that they were not statements made on the floor, but entered into the Congressional record a day later and that no Congress members would have read the written remarks before the vote on the RIA was held.

Ultimately, the court seemed to conclude that USCIS committed legal error assuming the RIA’s enactment automatically deauthorized all existing Regional Centers. Instead, if the statute is silent or ambiguous on this issue, USCIS would need to make a policy choice, which necessarily involves notice and comment under the APA rulemaking process.

If Behring Has Proved Its Case, What Is the Remedy? Next Steps

The court concluded the hearing by discussing what the appropriate remedy is if the judge grants Behring’s request for an injunction against USCIS. The court asked the parties to file short briefs on this specific point by Monday, June 6th. The judge stated that Behring has proved its case, and it is likely to succeed on the merits. He stated further, assuming he holds that USCIS committed legal error in deauthorizing Regional Centers, what is the remedy he may order.

Behring is requesting the court to order USCIS to recognize all Regional Centers approved prior to the enactment of the RIA and to allow such Regional Centers to have new investors file I-526 petitions immediately.

The court is expected to issue a written decision soon after reviewing the supplemental briefs on remedy on Monday.

Behring Regional Center is encouraged by yesterday’s hearing and remains hopeful that EB-5 investors will soon be able to file new I-526 petitions in the very near future without having to deal with the burdensome I-956 packages that are doomed to cause delays.

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