1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANA INGRID KELLER WURTZ, Case No. 20-cv-2163-JCS

8 Plaintiff,

ORDER DENYING MOTION TO

9 v. DISMISS

10 UNITED STATES CITIZENSHIP AND Re: Dkt. No. 14 IMMIGRATION SERVICES, et al., 11 Defendants.

12 13 I. INTRODUCTION 14 Plaintiff Ana Ingrid Keller Wurtz applied for an EB-5 visa on June 29, 2018. In the period 15 of slightly over two years since then, Defendant United States Citizenship and Immigration 16 Services (“USCIS”1) has not taken action on Keller Wurtz’s application. Keller Wurtz brings this 17 action seeking mandamus requiring USCIS to process her application. USCIS moves to dismiss 18 for failure to state a claim on which relief may be granted under Rule 12(b)(6) of the Federal Rules 19 of Civil Procedure. The Court finds the matter suitable for resolution without oral argument. For 20 the reasons discussed below, the motion to dismiss is DENIED.2 21 The hearing previously set for August 14, 2020 at 9:30 AM will proceed instead as a case 22 management conference, at the same time and using the same remote access instructions. The 23 parties need not file a case management statement. 24 25 1 Acting Secretary of Homeland Security Chad Wolf and Senior Official Performing the Duties of 26 the Director of U.S. Citizenship and Immigration Services Kenneth Cuccinelli are also named as defendants in their official capacities. This order uses “USCIS” to refer to all defendants 27 collectively. 1 II. BACKGROUND 2 A. Allegations of the Complaint 3 Because a plaintiff’s allegations are generally taken as true in resolving a motion under 4 Rule 12(b)(6), this section summarizes the allegations of Keller Wurtz’s complaint as if true. 5 Nothing in this order should be construed as resolving any issue of fact that might be disputed at a 6 later stage of the case. 7 Keller Wurtz is a forty-nine-year-old citizen of Mexico seeking to immigrate to the United 8 States with her husband and two children. Compl. (dkt. 1) ¶¶ 2, 10. Keller Wurtz works as a sales 9 and marketing director for a winery in California, and currently resides in the United States based 10 on a temporary E-2 work visa. Id. ¶¶ 2, 10. The passport stamp for that visa has expired, but “she 11 remains in lawful E-2 status until December 1, 2020.” Id. ¶ 28. With E-2 stamp expired and no 12 action on her EB-5 application, however, Keller Wurtz cannot travel internationally, which has 13 caused her to miss important business travel to promote her employer’s wine abroad, and has 14 prevented her from visiting her elderly father in Mexico, who recently had surgery. Id. ¶ 29. 15 Keller Wurtz asserts that she qualifies for an EB-5 investor visa based on a $500,000 16 investment that she made in 2018 in a hotel project in Oregon, and she filed a Form I-526 petition 17 to obtain such a visa on June 29, 2018 and paid USCIS an application fee of $3,675. Id. ¶¶ 3, 4, 18 10, 22–24, 32. USCIS approved Form I-526 petitions of other investors in the same hotel project 19 more than a year ago and granted the project “exemplar” status, which Keller Wurtz asserts means 20 that “the project aspects of her I-526 petition do not need adjudication.” Id. ¶ 25. Keller Wurtz’s 21 application demonstrates that she received the funds for her investment lawfully as a gift from her 22 father, who owns a successful manufacturing business. Id. ¶ 27. According to Keller Wurtz, 23 USCIS’s delay in processing her application well beyond the 180-day timeline set by 8 U.S.C. 24 § 1571 is arbitrary and unreasonable. Id. ¶ 6. 25 While an applicant may request that consideration of an I-526 petition be expedited, Keller 26 Wurtz asserts that such applications are “basically” only granted for applicants who “have extreme 27 health problems or face grave danger in their homeland,” and that based on those restrictive 1 renew her E-2 temporary visa passport stamp, but such renewal “can only be granted to her by the 2 American Consul in Mexico City,” and has in the past required her to wait in Mexico for a period 3 of months. Id. ¶ 30. Keller Wurtz also asserts that her intent to immigrate to the United States, as 4 stated in her pending I-526 application, makes renewal of her E-2 stamp “uncertain.” Id. 5 Keller Wurtz brings a single claim to compel agency action both under the Administrative 6 Procedures Act (“APA”), 5 U.S.C. § 706, and under 28 U.S.C. § 1361, which provides for 7 mandamus. Compl. ¶¶ 1, 32–35. She seeks an order requiring USCIS “to act upon [her] Form 8 I-526 petition within 15 days.” Id. ¶ 37. 9 B. The Parties’ Arguments 10 USCIS argues that this case should be dismissed because courts in this district have held 11 delays of up to four years reasonable in the immigration context, because the time taken thus far to 12 process Keller Wurtz’s application is in line with normal processing times for I-526 petitions, and 13 because ordering expedited processing would only delay consideration of other applications, 14 among other reasons. See generally Mot. (dkt. 14). Keller Wurtz contends—among other 15 arguments—that Congress intended immigration petitions to be processed within 180 days, 16 USCIS’s I-526 processing times have inexplicably increased recently despite fewer new 17 applications and increased staffing, and no justification is apparent for two years of inaction on her 18 application. See generally Opp’n (dkt. 18). 19 III. ANALYSIS 20 A. Legal Standard 21 A complaint may be dismissed for failure to state a claim on which relief can be granted 22 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss 23 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 24 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a claimant’s burden at the pleading stage 25 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 26 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 27 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 1 allegations of material fact as true and construe[s] them in the light most favorable to the non- 2 moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal 3 may be based on a lack of a cognizable legal theory or on the absence of facts that would support a 4 valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A pleading 5 must “contain either direct or inferential allegations respecting all the material elements necessary 6 to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 7 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). 8 “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a 9 cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 10 U.S. at 555). “[C]ourts ‘are not bound to accept as true a legal conclusion couched as a factual 11 allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). 12 “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual 13 enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Rather, the claim 14 must be “‘plausible on its face,’” meaning that the claimant must plead sufficient factual 15 allegations to “allow the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570). 17 B. Keller Wurtz’s Complaint States a Claim 18 The APA permits a court to “compel agency action unlawfully withheld or unreasonably 19 delayed.” 5 U.S.C. § 706(1). The following factors, often referred to as the “TRAC factors,” 20 inform courts’ decisions whether to grant such relief:

21 (1) the time agencies take to make decisions must be governed by a “rule of reason”[;] (2) where Congress has provided a timetable or 22 other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply 23 content for this rule of reason [;] (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human 24 health and welfare are at stake [;] (4) the court should consider the effect of expediting delayed action on agency activities of a higher or 25 competing priority[;] (5) the court should also take into account the nature and extent of the interests prejudiced by the delay[;] and (6) the 26 court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” 27 1 & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)) (alterations in original). Claims 2 challenging unreasonable agency delay under the Mandamus and Venue Act of 1962, 28 U.S.C. 3 § 1361, are “‘in essence’” claims “for relief under § 706 of the APA,” and courts treat them 4 identically. See id. at 507 (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 5 230 n.4 (1986)). 6 1. Rule of Reason 7 USCIS argues that courts in this district have generally held that delays of up to four years 8 in the context of immigration applications are sufficiently reasonable to deny the sort relief that 9 Keller Wurtz seeks. In Ou v. Johnson, the court granted a motion to dismiss under Rule 12(b)(6) 10 where an asylum application had pending for eleven months, noting that “courts in this district 11 have generally found delays of four years or less not to be unreasonable under the APA.” Ou, No. 12 15-cv-03936-BLF, 2016 U.S. Dist. LEXIS 191685, at *7–10 (N.D. Cal. Feb. 16, 2016). In all 13 three of the cases on which Ou relied for that statement, however, courts held that asylees whose 14 I-485 applications for permanent resident status had been pending before USCIS—in Islam, for 15 almost three years; in Kahn, for around a year since being reopened after a denial; in Dosouqi, for 16 an unspecified period of time—stated a claim on which relief could be granted and thus denied 17 USCIS’s motions to dismiss, but granted summary judgment for USCIS because case-specific 18 facts, including each plaintiff’s admitted involvement with foreign terrorist groups, indicated that 19 the delay was not unreasonable. Dosouqi v. Heinauaer, No. C 12-3946 PJH, 2013 U.S. Dist. 20 LEXIS 24757, at *3–6 (N.D. Cal. Feb. 22, 2013); Islam v. Heinauer (“Islam I”), No. C 10-04222 21 JSW, 2011 U.S. Dist. LEXIS 56239, at *12–13, *18–27 (N.D. Cal. May 25, 2011) (quoting Gelfer 22 v. Chertoff, No. C 06-06724 WHA, 2007 U.S. Dist. LEXIS 26466, at *5 (N.D. Cal. Mar. 22, 23 2007), for the generally rule that unreasonable delay will depend on the facts of a particular case); 24 Khan v. Scharfen, No. 08-1398 SC, 2009 U.S. Dist. LEXIS 28948, at *5, *19–27 (N.D. Cal. Apr. 25 6, 2009). In a case USCIS cites from the Central District of California, the court granted a motion 26 to dismiss on the basis that a one-and-a-half-year delay was not unreasonable to resolve an EB-5 27 visa application, but relied on the fact that USCIS had taken some degree of action on the 1 which had not yet passed at the time of the court’s decision. Shihuan Cheng v. Baran, No. CV 17- 2 2001-RSWL-KSx, 2017 U.S. Dist. LEXIS 122696, at *14–16 (C.D. Cal. Aug. 3, 2017). 3 In another case from this district, Judge Alsup addressed the issue as follows:

4 “What constitutes an unreasonable delay in the context of immigration applications depends to a great extent on the facts of the 5 particular case.” [Yu v. Brown, 36 F. Supp. 2d 922, 934 (D.N.M. 1999)]. Here, respondents fail to show that the delay of petitioner’s 6 application is reasonable as a matter of law. Simply asserting that the USCIS is awaiting the results of an FBI name check does not explain 7 why petitioner’s application has been stagnant for the past two years. See Singh [v. Still, 570 F. Supp. 2d 1064 (N.D Cal. 2007)]. 8 Respondents do not point to a single action taken during that period of time to further the processing of petitioner’s application or a reason 9 why petitioner’s application is particularly troublesome. See id. . . . . As in Yu, this order does not find respondents’ more than two-year 10 delay in the adjudication of petitioner’s application reasonable as a matter of law. 36 F. Supp. 2d at 935. On this motion to dismiss, it is 11 premature to consider the exact sources of the delay to determine whether the delay was actually unreasonable under the circumstances. 12 If the delay is found to be unreasonable after a full consideration of the surrounding facts, this Court will then have a duty to “compel” 13 respondents to adjudicate the application by a deadline certain. See 5

U.S.C. 706(1).

14 Gelfer, 2007 U.S. Dist. LEXIS 26466, at *5–6; see also Konchitsky v. Chertoff, No. C-07-00294 15 RMW, 2007 WL 2070325, at *4–6 (N.D. Cal. July 13, 2007) (citing Gelfer and denying a motion 16 to dismiss where a plaintiff’s I-485 application had been pending for more than two years and the 17 record included no “particularized explanation for the delay”). 18 This Court agrees with the general approach that challenges to reasonableness of delay are 19 best considered on an evidentiary record, and respectfully disagrees with the Ou court’s 20 conclusion that other courts’ decisions on the distinguishable facts before them support finding a 21 particular period of delay reasonable as a matter of law on the pleadings. Here, Keller Wurtz 22 alleges that USCIS has arbitrarily failed to resolve her application for a period of around two 23 years, even though USCIS has already approved the specific investment project on which her 24 application is based as an “exemplar.” FAC ¶¶ 6, 25. Nothing on the face of her complaint 25 suggests that such inaction is reasonable. 26 USCIS asks the Court to take judicial notice of the typical processing times listed on its 27 website for I-526 applications. USCIS asserts that, at the time of its motion, that website indicated 1 a median processing time of 29.5 months and that ninety-three percent of applications were 2 processed within 44.5 months. Mot. at 6 & n.6. As of the date of this order, the website indicates 3 a median processing time of 46 months (just under four years), and that ninety-three percent of 4 applications are processed within 74.5 months (slightly over six years). USCIS, “Check Case 5 Processing Times,” https://egov.uscis.gov/processing-times/ (accessed Aug. 12, 2020).3 The 6 Court may take judicial notice of such matters of public record. See Lee v. City of Los Angeles, 7 250 F.3d 668, 688–89 (9th Cir. 2001).4 The fact that USCIS takes equally long or longer to 8 adjudicate other applicants’ petitions does not in itself show that such delay is reasonable, 9 particularly where USCIS’s rate of review appears to have stalled significantly in the time its 10 motion has been pending, without any explanation for that decline available in the current record.5 11 Moreover, USCIS concedes that it has recently shifted its method of review from first-in-first-out 12 to prioritizing applications where a visa is currently available based on country-of-origin quotas. 13 Mot. at 6 n.6. Keller Wurtz asserts, and USCIS does not dispute, that a visa is currently available 14 for her application. Opp’n at 13; Reply at 4 n.3. The median processing time for all applications 15 sheds little light on a reasonable time to process an application prioritized under USCIS’s new 16 system, and where the investment project on which the application is based was already approved 17 by USCIS as an exemplar. See Compl. ¶ 25. 18 Based solely on the pleadings and facts subject to judicial notice, the Court finds that the 19 first of the TRAC factors, a broad rule of reason, favors Keller Wurtz. 20 2. Congressional Timeline 21 The second factor is whether Congress has provided an expected timetable for agency 22 3 An explanation of the range provided by the “Check Case Processing Times” is available at 23 https://egov.uscis.gov/processing-times/more-info. 4 Keller Wurtz asks the Court to take judicial notice of an expert’s declaration stating that 24 processing times for I-526 applications have drastically increased in the last few years, despite increased staffing and fewer new applications. The expert’s assertion that her data is based on 25 previously available public records does not transform her declaration into a public record itself, Opp’n Ex. A at 1 & n.3, and the Court has no basis to determine independently whether the 26 declaration is accurate. The Court declines to take judicial notice of the expert declaration, which would be more suitable for the context of summary judgment. 27 5 It is possible that the COVID-19 public health emergency has contributed at least in part to the 1 action. Congress has stated, in codified statute, its “sense . . . that the processing of an 2 immigration benefit application should be completed not later than 180 days after the initial filing 3 of the application.” 8 U.S.C. § 1571(b). USCIS is correct that this timeline is not mandatory, but 4 it nevertheless weighs in favor of finding the delay here—approximately four times Congress’s 5 stated goal—to be unreasonable. See Islam v. Heinauer (“Islam II”), 32 F. Supp. 3d 1063, 1073 6 (N.D. Cal. 2014) (“While the language of § 1571(b) is not mandatory, it nonetheless suffices to tip 7 the second TRAC factor [in] Islam’s favor.”).6 8 3. Nature of Interests 9 The third TRAC factor instructs courts to consider that “delays that might be reasonable in 10 the sphere or economic regulation are less tolerable when human health and welfare are at stake,” 11 and the fifth factor looks to “the nature and extent of the interests prejudiced by the delay.” 12 Independence Mining, 105 F.3d at 507 n.7. “The third and fifth factors overlap, and the Court 13 shall evaluate them together.” Islam I, 2011 U.S. Dist. LEXIS 56239, at *24. Keller Wurtz 14 alleges that she cannot travel internationally while her application is pending, and that in addition 15 to professional consequences, she therefore has not been able to visit her elderly father in Mexico. 16 Compl. ¶ 29. She alleges that the alternative approach of seeking to renew her E-2 visa stamp 17 could require her to wait in Mexico for months, away from her home and place of business in 18 California, and successful renewal would be uncertain. Id. ¶ 30. Because these alleged effects of 19 USCIS’s delay go beyond merely commercial concerns, this factor weighs in favor of relief, 20 although not as strongly as it might if Keller Wurtz faced persecution, medical consequences, or 21 other more severe harm if not granted relief. 22 USCIS has identified no countervailing interest apparent from the face of Keller Wurtz’s 23 complaint or facts subject to judicial notice that counsels in favor of delay. 24 6 USCIS argues that, in an earlier decision involving the same plaintiff Mohammed Sher Islam, 25 Judge White found the second factor to weigh in favor of USCIS. Reply at 4–5. Judge White in fact noted that the processing time exceeding 180 days “would weigh in [the plaintiff’s] favor,” 26 but held on summary judgment that the factor overall weighed against granting relief based on statutory requirements specific to the unusual circumstances of the plaintiff’s application—the 27 need for an exemption from rules excluding members of foreign terrorist organizations from 1 4. Effect of Granting Relief 2 Under the fourth factor, “the court should consider the effect of expediting delayed action 3 on agency activities of a higher or competing priority.” Independence Mining, 105 F.3d at 507 4 n.7. 5 Some courts have held that the “effect” factor favors USCIS in similar cases because 6 granting a particular applicant injunctive relief would only serve to place that applicant at the front 7 of the line, delaying adjudication of other applications that might have been pending longer. See, 8 e.g., Ou, 2016 U.S. Dist. LEXIS 191685, at *9–10; Pesantez v. Johnson, 2015 U.S. Dist. LEXIS 9 124508, at *11–12 (E.D.N.Y. Sep. 16, 2015). That may be so, but it is not apparent from the face 10 of Keller Wurtz’s complaint, or from any material for which USCIS has requested judicial notice. 11 The pleadings do not show that USCIS is working at a reasonable pace to process the applications 12 pending before it, or that it has prioritized those applications in a reasonable way. At this stage of 13 the case, in the absence of an evidentiary record showing that granting relief would serve only to 14 delay other applications equally deserving of consideration—or, for that matter, evidence or 15 allegations to the contrary—the Court finds this factor neutral. 16 5. Impropriety 17 The sixth and final item in the TRAC collection is not so much a “factor” as an instruction 18 not to place undue weight on an absence of improper motive: “the court need not find any 19 impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably 20 delayed.” Independence Mining, 105 F.3d at 507 n.7 (internal quotation marks omitted). There is 21 no allegation of impropriety here, but there need not be. This consideration, to the extent it might 22 be relevant at all, does not warrant dismissal. 23 * * * 24 Based solely on the allegations of Keller Wurtz’s complaint and facts subject to judicial 25 notice, the first, second, third, and fifth TRAC factors weigh, to varying degrees, in favor of 26 granting relief. The remaining factors are neutral. The Court therefore finds no basis to dismiss 27 Keller Wurtz’s complaint. 1 IV. CONCLUSION 2 For the reasons discussed above, USCIS’s motion to dismiss is DENIED. 3 IT IS SO ORDERED. 4 || Dated: August 12, 2020 5 CZ

J PH C. SPERO

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