Some attorneys try to avoid these motions at all costs. Others
prefer a more intentional approach to obtain relief for the clients
and move the law forward on behalf of those waiting amidst
unconscionable processing times. Extensive briefing on these
motions is required, usually with a response by the plaintiffs and
a reply by the government. Additional motions may also be filed
if they have merit.
HOW WILL THE COURT REACT?
Eventually, the judge will rule on the motion. There is no set
timeframe for this process and different courts and different
judges will move at different speeds. It is important for
attorneys to research the relevant case law in the jurisdiction
where the case will be filed, as some courts are more friendly to
immigration mandamus cases than others. Complicating this,
however, is that some courts such as the District of the District
of Columbia (D.D.C.) have conflicting case law. The outcome
of such a motion could simply be determined by which judge is
assigned that particular case.
If a judge rules in favor of the government on a Rule 12(b)(6)
motion, the case is dismissed from the court, usually without
prejudice to the plaintiffs filing a new action. However, this
decision can be appealed to the Circuit Courts if the plaintiffs
so choose. An appeal, or threat of an appeal, may provide
additional negotiation leverage to settle a case.
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"If a judge rules against
the government, then the
case must continue and the
government must answer
If a judge rules against the government, then the case must
continue and the government must answer the complaint.
The parties may then continue with discovery, which may
involve the taking of USCIS officials’ depositions. Prevailing
against the government in a dispositive motion poses excellent
opportunities for settlement. For example, in the seminal I-526
mandamus case Gutta v. Renaud, 2021 WL 533757, Case No.
20-cv-06579-DMR (N.D. Cal. Feb. 12, 2021), the judge denied
the government’s motion to dismiss in February 2021. Shortly
thereafter, all parties were able to reach a settlement agreement
which guaranteed at least initial adjudication on the 22 plaintiffs’
cases before the EB-5 program is scheduled to sunset on June
MANDAMUS IS NOT A ONE SIZE FITS
Many EB-5 stakeholders, rightfully, consider mandamus to be
a last resort. It can involve expensive legal fees. It certainly is
not suitable for every case and some may be able to file in more
friendly jurisdictions than others. Moreover, there are separate
legal frameworks for filing a mandamus on an I-526, I-934, and
I-829. There is also a much larger body of case law regarding
mandamus on interim benefits such as work and travel
authorization, as well as adjustment of status.
Close consultation with an experienced attorney, capable of
putting together a cogent strategy, is an absolute must.
Matthew T. Galati
is the principal
of The Galati Law Firm. Matt Galati has
worked in the EB-5 space since early 2011,
representing investors and regional centers
in both the transactional and litigation
contexts. Beyond EB-5, Galati represents
immigrants from all walks of life, including
in family immigration, business startups, E-2
visas, and extraordinary ability cases.
G a l a t i ’s l i t i g a t i o n p r a c t i c e i n c l u d e s
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