EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 - Page 93

of the federal Administrative Procedures Act which requires agencies to make decisions within a reasonable time, or under the Mandamus Act ( 28 U.S.C. 1361), which vests federal district courts with jurisdiction “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” In the EB-5 context, a mandamus lawsuit seeks to have a judge to order USCIS / the IPO to decide a particular petition or application. Note that the suit does not contemplate the actual merits of the filing. That is, the mandamus court will be asked to decide whether an investor’s source of funds was lawful or whether the project indeed qualifies for exemplar status. Accordingly, the issue before the judge is whether or not she/ he should force USCIS’ hand. A successful mandamus suit will simply bring about the adjudication that has been delayed. Cases with merit should lead to approvals. Cases without merit should lead to denials. The filing of a mandamus, at least on its fact, should have no effect. WHAT ARE THE STEPS AND HOW LONG DOES A MANDAMUS LAWSUIT TAKE? These processing times make little sense and look even worse in context. The agency’s production in fiscal year 2019 was terribly disappointing, with just a fraction of adjudications of the year before. Combining these with the high fees, it is hardly surprising then that EB-5 stakeholders are turning to the courts to try to force USCIS to finally act. USCIS production of late has lagged compared to historical trends. It is hardly surprising then that mandamus actions are growing quite popular. Like most lawsuits, a mandamus action begins with the filing of a complaint whereby the plaintiff(s) allege the operative facts surrounding the delay, put forth their cause(s) of action, and state their claims that the case filed in the proper court against the proper defendants. Different lawyers will take different approaches to their complaints including whether or not to sue specific DHS/USCIS defendants such as Secretary Mayorkas, or the interim heads of USCIS and the IPO. Some lawyers may have favorite jurisdictions of where to file, although those choices may be limited based on the plaintiffs’ residences. "A successful mandamus suit will simply bring about the adjudication that has been delayed" Let ’s explore, in general terms , what a mandamus lawsuit is and what litigants can generally expect. Naturally, however, each affected EB-5 stakeholder and each lawsuit will have different outcomes, experiences, and circumstances. Nothing substitutes an attorney consultation, but here you will find some general concepts and government defense strategies from the last few years. WHAT IS A MANDAMUS LAWSUIT? Mandamus is a Latin word meaning “we command.” As explained by Law.com, it is essentially a writ whereby a court “orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so.” Jurisdictionally, these kinds of lawsuits can take one of two (or both) forms. Suits can be lodged alleging a violation Once a complaint is accepted by a civil clerk’s office, the plaintiff’s attorney must then effectuate service of process. Although this is often dramatized in movies against private parties with process servers surprising defendants from behind bushes or using deception to lure in an unwitting litigant, against the government service is usually effectuated by U.S. mail. Unlike suits against private parties, the U.S. government normally has 60 days to respond to the complaint, unless the plaintiffs are seeking emergency relief. HOW WILL THE GOVERNMENT REACT? The 60 days following service may prove to be the most critical for the plaintiffs in a mandamus action. During this time, the complaint is reviewed by the government’s attorneys, who normally work in the local U.S. Department of Justice Attorney’s Office having jurisdiction over the suit. That individual must then make a formal appearance in the case against the plaintiff(s). EB5INVESTORS.COM 93