American Immigrant Investor Alliance (AIIA) recently filed an amicus brief to the U.S. Supreme Court over the U.S. Citizenship and Immigration Services (USCIS) preventing litigations against revoked petitions.
About AIIA
American Immigrant Investor Alliance (AIIA) is a Washington DC based non-profit advocating for the interests of EB-5 investors from around the world. AIIA is dedicated to informing, educating, and advocating on behalf of all EB-5 investors. Their main goal is to give immigrant investors a real voice in U.S. politics by advocating for a more equitable and transparent immigration program. ARCFE is a proud sponsor of AIIA.
Background
Under current law, immigrant investors can pursue judicial review in federal courts if USCIS denies their EB-5 petitions, as long as they have exhausted all administrative remedies. According to AIIA, USCIS has identified a loophole to avoid legal challenge on their decisions. Rather than outright denying immigrant status petitions, USCIS sometimes initially approves a petition and then later revokes it. USCIS contends that these revocations are "discretionary" decisions in immigration matters. If the courts accept this argument, such decisions would be exempt from judicial review.
*Judicial review is the process by which courts evaluate the legality and constitutionality of legislative and executive actions.
Bouarfa v. Mayorkas
In 2014, Amina Bouarfa submitted form I-130 for her husband to be classified as her immediate relative under the Immigration and Nationality Act (INA). Although the petition was approved in 2015, Bouarfa was later notified of an intent to revoke the approval. Despite Bouarfa's response, the revocation of their case went through and their appeal to this decision was unsuccessful.
Bouarfa later filed a lawsuit in the U.S. District Court to legally challenge this decision. USCIS dismissed the complaint and argued that the revocation decision was not subject to judicial review because it was a discretionary action. The District Court granted the motion, concluded that while the action was based on non-discretionary criteria, the action itself was discretionary and therefore the court lacked subject-matter jurisdiction to review the decision.
How does this affect EB-5 investors?
If the EB-5 investor's petition (such as I-526E) was approved, with USCIS confirming that all of the source of funds (SOF) or path of funds (POF) are legal, then later revoke their approval, investor would not be able to fight this revocation.
What are the results so far?
Regional courts have divided opinions on this issue, with some agreeing with USCIS and others rejecting USCIS's argument:
Second, Third, Seventh & Eleventh Court: Agreed with USCIS and ruled that revocations cannot be reviewed by the courts.
Sixth & Ninth Circuits: Rejected USCIS's argument and confirmed that revocations are subject to judicial review.
Due to the divided opinions, the U.S. Supreme Court has agreed to hear the Bouarfa v. Mayorkas during the October 2024-2025 term, this case will determine whether revocations are subject to judicial review. The outcome will have great effects on immigrant investors' ability to contest USCIS decisions if their petitions are revoked. At this time, AIIA's amicus brief is the only brief representing EB-5 investors at the Supreme Court in this case.
AIIA has filed an amicus brief in the case of Bouarfa v. Mayorkas.
*Amicus brief is a document submitted to a court by someone not directly involved in the case, offering information or arguments to assist the court in its decision.
We will continue updating investors as the situation progress.
