EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 | Page 56

TOP LITIGATION AT TORNEYS MATTHEW GALATI M atthew T. Galati is the principal of The Galati Law Firm. Galati has worked in the EB-5 space since early 2011, representing investors and regional centers. Beyond EB-5, Galati represents immigrants from all walks of life, including in family immigration, business startups, E-2 visas, and extraordinary ability cases. Galati’s litigation practice includes representing clients before federal courts, in adversarial agency practice, appellate proceedings and EOIR. Most notably, Galati served as counsel (pro hac vice) in the seminal EB-4 case Shalom Pentecostal Church v. Beers, 2013 WL 12322086 (D.N.J. Sept. 16, 2013) which resulted in the elimination of two USCIS regulations. WHAT NEW TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION? It was shocking to see the Immigrant Investor Program Office’s lack of productivity in 2019. Predictably, the agency became swamped with litigation which seemed to be the only way for a IRA KURZBAN LITIGATION ATTORNEYS EB5 INVESTORS MAGAZINE case to get attention. I think that initially mandamus cases were easier to settle. However, now, the Department of Justice is taking a more sophisticated, more adversarial approach. We see this with motions to transfer cases and motions to dismiss in increasing frequency. Litigation is not premium processing. It takes a certain mindset to fight these battles and preserve through adversity. Innovation is also a must. WHAT HAS BEEN YOUR MOST IMPACTFUL LITIGATION CASE, AND WHY? Gutta v. Renaud, 2021 WL 533757, (N.D. Cal. 2021). This case involved a group of 22 plaintiffs with delayed I-526s. It was ambitious and aggressive – but it worked! The Court denied USCIS’ efforts to dismiss our case. The agency decided to settle after the decision. Accordingly, every plaintiff will have adjudication before June 30, which has been a major source of anxiety for investors. Beyond that, Gutta helps establish that USCIS’ highly questionable processing times, in and of themselves, cannot be a defense for delay. I am confident that this will be a strong precedent for future mandamus cases. LITIGATION ATTORNEYS EB5 INVESTORS MAGAZINE I ra Kurzban is the founder of the law firm Kurzban, Kurzban, Tetzeli & Pratt, P.A., of Miami, Florida. He is a past- national president of the American Immigration Lawyers Association and is a Fellow of the American Bar Association. He has litigated over 50 federal cases concerning the rights of aliens, including Jean v. Nelson, Commissioner v. Jean, and McNary v. Haitian Refugee Center, Inc., which he argued before the United States Supreme Court. Kurzban is an adjunct faculty member at the University of Miami School of Law. He is the author of Kurzban’s Immigration Law Sourcebook. WHAT NEW TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION? Due to the failure of the previous administration to adjudicate all benefits cases, including investor cases, the increase in the investment amounts, the downturn in construction generally, and some of the bad actors in the industry, we are seeing far more litigation than ever. Many investors are filing mandamus actions to seek adjudication of I-526s, I-829s and 56 EB5 INVESTORS MAGAZINE to obtain interviews at consulates so they can receive their conditional residence status before the current law expires. We are seeing more investors challenge illegal uses of their funds even where the SEC has not been involved. More lawyers are becoming litigators in light of the current situation. WHAT HAS BEEN YOUR MOST IMPACTFUL LITIGATION CASE, AND WHY? The two most important cases we have litigated over the past two decades are Chang v. U.S., 327 F.3d 911 ; Zhang v. U.S.C.I.S., 978 F.3d 1314 . In Chang v. U.S., we challenged the government’s change in policies in regard to investors who already received their conditional residence status. The Court determined that the government could not retroactively change its policies to deprive a class of 200+ investors of their right to LPR status. The case was ultimately settled and all investors received their “green cards.” In Zhang, we recently successfully challenged the government the view that “cash” did not constitute an investment for immigration purposes if it was a loan that was not fully collateralized.