EB5 Investors Magazine | Page 59

Renewal of I-829 Petition in Removal Proceedings What many investors don’t know, however, is that denial of the I-829 petition by the Department of Homeland Security and United States Citizenship and Immigration Services is not the end of the road, and that I-829 denial by USCIS does not necessarily mean that the investor and his family will be deported or removed from the United States. Though investors are inevitably distraught by the prospect of facing immigration court proceedings before an immigration judge, the fact is that immigration judges have the power to overrule USCIS’s I-829, approve the petition, and remove the conditions on their lawful permanent residence. In fact, the law requires immigration judges to make a new, independent decision on the investor’s renewed I-829 petitions, and under certain circumstances, if applicable, accept new and additional evidence to prove a qualifying EB-5 investment and job creation.[*] It is not simply that an investor gets a second bite at the apple in the removal proceedings – the different procedures and forms of relief available in immigration court provide an immigration attorney experienced in deportation or removal defense with a set of litigation strategies, procedures, and remedies that are not available in the initial I-829 petition submission to USCIS. While the initial I-829 submission to USCIS is limited to documents and information submitted, immigration judges are required to accept and review a multitude of additional evidence, if applicable, including additional updated documentary evidence and live witness testimony, including expert witness testimony and opinions. Likewise, while USCIS has strict rules that prevent lawyers from speaking with the adjudicators who handle EB-5 petitions, attorneys representing investors in immigration court have a chance to discuss and negotiate with DHS trial attorneys, employ oral advocacy before the immigration judge, and cross examine government witnesses who testify in support of DHS’s denial. An additional important consequence of the immigration judge’s authority to make independent judgments on I-829 petitions is that this process provides the investor’s attorney with an opportunity to present evidence that becomes available only after USCIS denies the I-829 petition. For example, if USCIS denies an I-829 petition because the investor failed to demonstrate sufficient job-creation, the attorney representing the investor in the removal case can present new evidence to the immigration judge that the jobs were in fact actually created or will be created. What’s more, immigration judges are not required to follow USCIS’s guidance on EB-5 adjudications, and have leeway to depart from such guidance if applicable. So where USCIS’s I-829 petition denial is based on application of USCIS policy memoranda (for example, the requirement that jobs be created within two years and six months from the investor’s I-526 approval), an investor’s attorney may argue that those grounds should not apply since they have no statutory or regulatory grounding, and alternatively argue that the investor’s I-829 petition should be approved based on additional factors and evidence. Even if the immigration judge ultimately rules against a grant to remove the investor conditional permanent residency, the investor’s attorney may appeal the decision to the Board of Immigration Appeals, and, if denied there, seek further review in a federal appeals court. Representing immigrant investors in immigration court also presents a set of challenges which are not part of the traditional EB-5 representation landscape. Unlike EB-5 practice before USCIS, immigration proceedings are “adversarial”— that is, the investor’s attorney must not only persuade the immigration judge that the I-829 petition should be approved, but must also anticipate and refute arguments by the DHS prosecutor whose job is to convince the immigration judge that the investor’s I-829 was proper