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