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Thiessen v. Sessions

United States District Court, E.D. Texas, Sherman Division

September 7, 2017

ANNA DYCK DE THIESSEN, et al., Plaintiffs,
v.
JEFF SESSIONS, et al., Defendants.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636. On August 3, 2017, the report of the Magistrate Judge (Dkt. #40) was entered containing proposed findings of fact and recommendations that Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint for Writ of Mandamus (Dkt. #34) be granted in part and denied in part.

         BACKGROUND

         According to the pleadings, on May 14, 1997, Anna Dyck de Thiessen, Johan Thiessen Dyck, and Aganetha Thiessen Dyck (“Plaintiffs”) were approved for conditional permanent resident status as the derivative beneficiaries (spouse and minor children) of an approved I-526, Immigrant Petition by Alien Entrepreneur, filed by Plaintiffs' husband/father on April 11, 1997 (Dkt. #18 at p. 2). Plaintiffs represent they are citizens of both Mexico and Canada, but have been conditional permanent residents since December 31, 1997. On December 21, 1999, Plaintiffs filed an I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (USCIS Receipt No. SRC0007600124). More than seventeen years have passed since Plaintiffs filed the petition. The United States Citizenship and Immigration Services (“USCIS”) has yet to complete the adjudication of Plaintiffs' petition.

         Plaintiffs' petition is based on a qualifying investment in Load Trail, Inc., a family owned business in Sumner, Texas, which they claim employs more than five hundred (500) workers (Dkt. #18 at p. 4). Plaintiffs claim that, upon request for a status inquiry to the USCIS California Service Center in March 25, 2014, USCIS responded on April 11, 2014, stating USCIS was withholding the adjudication of the I-829 petition, and that it was being housed at the California Service Center pending the issuance of regulations implementing the special immigrant investor provisions of the Twenty-First Century Department of Justice Appropriations Authorizations Act (Public Law 107-273), Pub. L. No. 107-273 116 Stat. 1757 (Nov. 2, 2002) (Dkt. #18 at p. 5).

         On January 12, 2017, Plaintiffs filed the present suit (Dkt. #1). On April 6, 2017, Plaintiffs filed a First Amended Complaint (Dkt. #18). Plaintiffs stated in their First Amended Complaint (the “Complaint”) that, to date, USCIS has failed to take any steps to complete the adjudication of Plaintiffs' I-829 petition, has not provided any indication that USCIS had any reason to doubt the veracity of Plaintiffs' petition, and has not requested any additional information concerning Plaintiffs' stated qualifications for the removal of conditions (Dkt. #18 at p. 6). Plaintiffs' suit names USCIS, Chief Nicholas Colucci, United States Department of Homeland Security, Jeff Sessions, John F. Kelly, and James McCament as Defendants.[1]Plaintiffs assert violations of the Administrative Procedures Act (“APA”), 5 USC § 701 et seq., and state that Defendants have denied Plaintiffs due process and equal protection guaranteed by the Fifth Amendment of the U.S. Constitution (Dkt. #18 at p. 7). Plaintiffs ask the Court for an order of mandamus compelling Defendants to adjudicate Plaintiffs' I-829 petition and to award attorneys' fees pursuant to the Equal Access to Justice Act (Dkt. #18 at p. 8). On June 14, 2017, after seventeen years and the filing of this suit, USCIS requested additional evidence of eligibility from Plaintiffs in the form of a Request for Evidence (“RFE”) (Dkt. #34, Ex. 1). Plaintiffs have until September 10, 2017, to submit additional evidence in response to the RFE. On June 19, 2017, Defendants filed the present Motion to Dismiss (Dkt. #34). On July 10, 2017, Plaintiffs filed a response (Dkt. #37). On July 17, 2017, Defendants filed a reply (Dkt. #39).

         On August 3, 2017, the report of the Magistrate Judge (the “Report”) was entered containing proposed findings of fact and recommendations that Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint for Writ of Mandamus (Dkt. #34) be granted in part and denied in part (Dkt. #40). The Report recommends the Motion to Dismiss be granted as to Plaintiffs' Constitutional violation claims and be denied as to Plaintiffs' request for mandamus relief (Dkt. #40 at p. 12).

         On August 17, 2017, Defendants filed Objections to the Report and Recommendation of United States Magistrate Judge (Dkt. #42). Plaintiffs did not file objections, but filed a response to Defendants' objections on August 22, 2017 (Dkt. #44).

         ANALYSIS

         Constitutional Violations

         Neither Plaintiffs nor Defendants object to the finding in the Report that Plaintiffs' Constitutional violations should be dismissed. The Court agrees, and adopts the findings of the Magistrate Judge as the findings of the Court with regard to Plaintiffs' Constitution violations claims.

         Mandamus Claim

         Defendants argue the Magistrate Judge erred in finding Defendants' issuance of an RFE is not considered adjudicating Plaintiffs' I-829 petition (Dkt. #42 at p. 1). Defendants note RFE's are part of the regulatory scheme for adjudicating such petitions, and that courts have held that issuance of an RFE is considered part of the adjudication process of an immigrant visa petition (Dkt. #42 at p. 2).

         The Court recognizes the role of RFEs in the process of adjudicating an immigrant visa petition, specifically in the EB-5 immigrant investor visa program. As Defendant references, “RFEs are clearly an intermediate step in the process of adjudicating a [visa application].” Elgin Assisted Living EB-5, LLC v. Mayorkas, No. 12 CV 2941, 2012 WL 4932661, at *3 (N.D. Ill. Oct. 16, 2012). Further, as Defendant notes, when United States Citizenship and Immigration Services (“USCIS”) issues an RFE, ...


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