paes de barros v. chief of the immigrant investor program et al., no. 17-20947 (s.d. fl march 13,...
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Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 1 of 11
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
LUIS FERNANDO PAES DE BARROS
Plainti ff,
v.
) ) ) ) ) ) )
NICHOLAS COLUCCI, Chief ) Immigrant Investor Program ) U.S. Citizenship and Immigration Services ) 131 M Street NE ) Washington, DC 20529 )
JULIA HARRISON, Deputy Chief [mmigrant Investor Program U.S. Citizenship and Immigration Services 131 M Street NE Washington, DC 20529
LORI SCIALABBA, Director U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, N.W. Washington, DC 20529
JOHN F. KELLY, Secretary U.S. Department of Homeland Security 245 Murray Lane, S.W. Washington, DC 20528
Defendants.
) ) ) ) ) ) ) ) ) )
) ) ) ) ) ) ) ) ) ) ) ) __________________________ )
Civ. No.:
COMPLAINT
COMPLAINT FOR WRIT OF MANDAMUS
1
FILED by ft D.C.
MAR 1 3 2017 STEVEN M. LARIMORE CLERK U.S. OIST. CT. S. D. of FLA. - MIAMI
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The Plaintiff, Mr. Luis Fernando Paes de Barros, through counsel, complains of the
Defendants, NICHOLAS COLUCCI, Chief of the Immigrant Investor Program, JULIA
HARRISON, Deputy Chief of the Immigrant Investor Program, LORI SCIALABBA, Director of
U.S. Citizenship and Immigration Services, JOHN F. KELLY, Secretary of U.S. Department of
Homeland Security, as follows:
I. PREFATORY STATEMENT
1. This action is brought to remedy the unlawful , unreasonable, arbitrary and
capricious delay by the U.S. Citizenship and Immigration Services ("USCIS") in
adjudicating the Form l-526, " Immigrant Petition by Alien Entrepreneur" ("Form I-
526 Petition"), filed by Plaintiff Luis Fernando Paes de Barros over twenty months
ago. Mr. Paes de Barros' Form 1-526 Petition meets all the requirements for
approval. The agency's continuing and inexcusable delay in acting on Mr. Paes de
Barros' Form 1-526 Petition has caused him and his family significant harm and is
contrary to the Administrative Procedure Act ("AP A"), 5 U.S.C. §§ 555(b ), 706( I),
706(2)(A), (C), (D), and warrants an exercise of this Court's mandamus power
under the Mandamus and Venue Act ("Mandamus Act"), 28 U.S.C.§ 1361. Thus,
Paes de Barros seeks the Court to issue an order directing Defendants to adjudicate
Paes de Barros Form I-526 Petition within 15 days pursuant to its authority under the
AP A and the Mandamus Act.
II. JURISDICTION
2. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331
because Plaintiffs claims arise under the laws of the United States, specifically the
Immigration and Naturalization Act, 8 U.S.C. § 110 I, et seq. (''INA") and its
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implementing regulations. Further, this Court has subject-matter jurisdiction over
this mandamus action is provided by 28 U.S.C. §§ 136 1 and 1331. Finally, this
Court has jurisdiction over the instant matter pursuant to the Administrative
Procedures Act ("APA"), 5 U.S.C. §§ 555(b), 702 and 706(b). The APA requires
USCIS to carry out its duties within a reasonable time 5 U.S.C § 555{b) provides
that "[w]ith due regard for the convenience and necessity of the parties or their
representatives and within a reasonable time, each agency shall proceed to conclude
a matter presented to it." (Emphasis added).
Ill. VENUE
3. Venue is proper under 28 U.S.C. § l391(e), because this is an action against officers
and agencies of the United States in their official capacities, brought in the district
where a substantial part of the events or omissions giving rise to the Plaintiff' s claim
occurred or where a substantial part of the property that is the subject of the action is
situated. The Defendant NICHOLAS COLUCCI is sued in his official capacity as
Chief of the Immigrant Investor Program Office, a United States federal agency and
resident in this district. The Defendant JULIA HARRISON is sued in her official
capacity as Deputy Chief of the Immigrant Investor Program Office, a United States
federal agency and resident in this district. The Defendant LORI SCIALABBA is
sued in his official capacity as Director of USCIS, a United States federal agency
and resident in this district. The Defendant JOHN F. KELLY is sued in his official
capacity as Secretary of the U.S. Department of Homeland Security ("DHS"), a
United States federal agency and resident in this district. Because national policy
concerning adjudication of applications for immigration benefits - including
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adjudication of Form 1-526 Petition - is formulated by the DHS and implemented by
users, venue is proper in this district.
4. Moreover, venue is also proper as it is brought in the district where a substantial part
of the events or omissions giving rise to the Plaintifl"s claim occurred or where a
substantial part of the property that is the subject of the action is situated. The
Plaintiffs I-526 Petition at the heart of this matter is predicated upon his investment
into Flagler Station, a project designed to fund the construction of94,968 square foot
Marriott Residence Inn Extended Stay Hotel located on a 2.58-acre lot strategically
located within the Flagler Station Business Park in Miami.
IV. PARTIES
5. The Plaintiff, Mr. Luis F emando Paes de Barros, present! y resides at 150 17
Gaulberry Run Winter Garden Florida 34787. Mr. Paes de Barros was born in Sao
Paulo, Brazil in 1978 and is a citizen of Brazil.
6. The Defendants, NICHOLAS COLUCCI, Chief: Immigrant Investor Program,
JULIA HARRISON. Deputy Chief, Immigrant Investor Program, LORI
SCIALABBA, Director, USCIS, and JOHN F. KELLY, Secretary, DHS, are sued in
their official capacities. Defendants John F. Kelly and Lori Scialabba has
responsibility for the administration of immigration laws pursuant to 8 U.S.C.
§ 1103. Defendants Nicholas Colucci and Julia Harrison presumptively oversee the
entire EB-5 program.
V. FACTUAL AND PROCEDURAL HISTORY
7. Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through
job creation and capital investment. Under the program, a foreign citizen may
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obtain pennanent resident status upon the investment of at least $500,000 and the
creation of at least ten full-time jobs as part of a new business venture. See 8
U.S.C. § 1153(b)(5); 8 C.F.R. § 204.6(f)(2). As part of the EB-5 Program,
Congress also created (and has regularly renewed) the Immigrant Investor Pilot
Program, now called the Immigrant investor Program.
8. This EB-5 pr01:,JTam allows an EB-5 investor to invest the requisite capital through a
USCIS-approved "regional center." A regional center is an entity for promoting
economic growth and job creation and each center may contain one or more new
commercial enterprises under its umbrella. See 8 C.F.R. § 204.6(e), (m)(3). To
apply for an EB-5 visa, a foreign entrepreneur must submit a Fonn I-526 Petition
and supporting documentation demonstrating that the required capital has
been committed and is actually at risk; that the investment is made from the
entrepreneur's own lawfully acquired funds; and the existence of a comprehensive
business plan demonstrating that ten full-time jobs will be created by the
investment. 8 C.F.R. § 204.6U). For an investment through an approved regional
center, the petition must be accompanied by evidence that the requisite investment
will create ten full-time positions either directly or indirectly for no fewer than I 0
individuals. /d. § 204.6(j)(4)(iii).
9. Mr. de Barros invested $500,000 in Flagler Station Lenders, LLC ("Flagler Station"
or "the Company"), a commercial enterprise fonned in July 2014. The Company is
lending up to $9,000,000 to the Project owner, DVI Cardel Flagler Residence, LLC
("DVI Cardel" or "Borrower"). DVI Cardel is managed by the Company's
Manager and the Project developer, DEBS Development LLC ("Developer"). The
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purpose of Flagler Station is to provide up to $9,000,000 in EB-5 capital to DVI
Cardel to help fund the construction and operations ofThe Residence Inn at Flagler
Station in Miami, Florida (the "Project"). Upon completion, the Project will consist
of a 5-story, 94,968 square feet, 123-room Marriott Residence Inn Extended Stay
Hotel located on a 2.58-acre lot strategically located within the Flagler Station
Business Park in Miami. Flagler Station Business Park is the largest business park
in South Florida offering more than 105 million square feet of campus-style office,
retail and industrial spaces at build out.
10. The Company has entered into a Business Affiliate Agreement with Florida EB-5
Investments, LLC ("Florida EB-5 Investments"), which has been designated as a
regional center under the Immigrant Investor Program. The designation of Florida
EB-5 Investments includes approval of the construction and hotel industry sectors
throughout the State of Florida. Mr. de Barros completed an investment in Flagler
Station when $550,000 was wired to Signature Bank, the Company's escrow agent,
on April 27, 2015. Of the $550,000 transferred by the Petitioner, $50,000 represents
an Expense Amount ("administrative fees"), and the balance of $500,000 is the
capital contribution in Flagler Station. Based on the investment, the Petitioner owns
approximately 5.56% of the Company. On May 5, 2015, the Florida Department of
Economic Opportunity confirmed that Flagler Station is principally doing business
in a targeted employment area based on its high unemployment rate.
Subsequently, Mr. Paes de Barros filed the I-526 Petition which was acknowledged
as received byUSCIS on June 2, 2015.
11. Since filing the I-526 petition more than 20 months ago, Mr. Paes de Barros, through
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Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 7 of 11
counsel, has undergone exhaustive efforts to determine the status of his application
including inquiring on multiple occasions to USCIS regarding the status of the
application and regularly checking the USCIS online case status. Despite his
exhaustive efforts to follow-up on the status of his application, USCIS has not
adjudicated same.
VI. CLAIMS
12. Mr. Paes de Barros re-alleges and incorporates by reference, as if fully set herein, the
allegations in paragraphs 1-11 above.
13. Defendants' failure to adjudicate and approve Mr. Paes de Barros I-526 Petition
constitutes an unreasonable failure to act in violation of the Administrative
Procedures Act.
14. Section 555 of the APA provides that administrative agencies shall conclude
matters presented to the agency for decision "within a reasonable time." See 5
U.S.C. § 555(b ). Moreover, the APA dictates the right of judicial review to a
person "adversely affected or aggrieved'' by an agency's "fail[ure] to act." 5
u.s.c. § 702.
15. When, as here, a proper showing is made, "[t]he reviewing court shall . .. compel
agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).
The court must also "hold unlawful and set aside agency action" that is: "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law"; "in
excess of statutory jurisdiction, authority, or limitations, or short of statutory right";
or "without observance of procedure required by law." !d. § 706(2)(A), (C), (D).
16. Mr. Paes de Barros has fully complied with all of the statutory and regulatory
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Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 8 of 11
requirements for seeking adjudication of his Form 1-526, including submission of
all necessary forms and supporting documents. Despite this, Defendant USCIS has
unreasonably failed to adjudicate the Plaintiffs application, thereby depriving the
Plaintiff of his rights under INA§ 209,8 U.S.C. §1159. Pursuant to 5 U.S.C. §§
555(b) and 702 (AP A). Mr. Paes de Barros has no other adequate remedy available
to him other than filing the instant complaint. Accordingly, Mr. Paes de Barros would
seck an order compelling USCIS to act, within 15 days, on his pending Form 1-526
Petition,
17. The Defendants further owe Plaintiff a duty to adjudicate the Form 1-526 Petition
pursuant to the fNA and its implementing regulations and have unreasonably failed
to perform that duty. Accordingly, Mr. Paes de Barros further seeks a writ of
mandamus to compel Defendants "to perform a duty owed to the plaintiff." 28 U.S.C. §
1361. Plaintiff has no alternative means to obtain adjudication of the 1-526 Petition
and the right to issuance of the writ is "clear and indisputable".
18. Defendants' delay is without justification and has forced the Plaintiff to resort to
this Court for relief, and the Plaintiff is entitled to attorney's fees pursuant to the
Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 24 l(d)(2).
IX. PRAYER
WHEREFORE, the Plaintiff prays that this Court:
I . Compel the Defendants and those acting under them to take all appropriate
action to adjudicate Mr. Paes de Barros' Form 1-526 Petition within 15 days.
2. Enter a judgment declaring Defendants' unreasonable delay and failure to
adjudicate Mr. Paes de Barros' Form l-526 Petition to be in direct violation of
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the APA and INA.
3. Grant attorney's fees and costs of court to the Plaintiff under the Equal Access
to Justice Act ("EAJA");
4. Grant such other and further relief as this Court deems proper.
Respectfully submitted this J.Q_ day of March, 2017.
9
Rusten C. d Esq. Florida Bar No.:·O"Q1"'2r'C:"'td-~Colornbo & Hurd, PL 301 E. Pine St. , Suite 300 Orlando, FL 32801 Tel: (407) 478-1 11 I Fax: (407) 447-2488 Email: [email protected]
Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 10 of 11
CERTIFICATE OF SERVICE
I, Rusten C. Hurd, certify that on March J.Q_, 20 17, a true and exact copy of the foregoing to was served by first class certified mail to:
NICHOLAS COLUCCI, Chief Immigrant Investor Program U.S. Citizenship and Immigration Services 131 M Street NE Washington, DC 20529
JULIA HARRISON, Deputy Chief Immigrant Investor Program U.S. Citizenship and Immigration Services 131 M Street NE Washington, DC 20529
LORI SCIALABBA, Director U.S. Citizenship and Immigration Services 20 Massachusetts A venue, N. W. Washington, DC 20529
JOHN F. KELLY, Secretary U.S. Citizenship and Immigration Services U.S. Department of Homeland Security 245 Murray Lane, S.W. Washington, DC 20528
10
Rusten C. Hurd, Esq. Florida Bar No.: 0145343 Colombo & Hurd, PL 301 E. Pine St., Suite 300 Orlando, FL 32801 Tel: ( 407) 478-1111 Fax: (407) 447-2488 Email: [email protected]
Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 11 of 11
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