A NEW ERA OF I-829 DENIALS: WHAT TO EXPECT IN IMMIGRATION COURT— BY JESSICA DENISI
As EB-5 investors might find themselves before an immigration court appealing their I-829 denial, it’ s important that they understand the key steps in the process
appealing their I-829 denial, it’ s important that they understand the key steps in the process: Reversal of the burden of proof: During USCIS adjudication of the I-829 petition, the burden of proving by a preponderance of the evidence that the request should be approved falls on the investor. However, when seeking review of an I-829 petition before an immigration judge, the regulations provide that the government has the burden of proof. Master Calendar Hearing: Shortly after the issuance of an NTA, the investor will be scheduled for a Master Calendar Hearing, which is essentially a procedural session before an immigration judge. At this hearing, the parties confirm the factual and legal posture of the case, and the judge will set deadlines for filing applications, evidence, and legal briefs, and will schedule the individual merits hearing at which testimony and exhibits will be presented.
The immigration judge will first ensure that the respondent, the EB-5 investor, has received and understands the allegations in the NTA, and will then request“ pleadings,” which means that the petitioner admits or denies the factual allegations in the case and concedes or contests the charges of removability. At this stage, through counsel, the individual can indicate the forms of relief to be pursued, such as renewing the denied Form I-829 before the immigration judge.
One of the most important decisions for counsel at the Master Calendar Hearing is how to plead to the allegations in the NTA. Specifically, the notice will state that the investor is out of status when, in fact, the investor is still a conditional permanent resident( CPR). However, counsel may not wish to contest removability because doing so could result in termination of the proceedings, which will render the investor without any opportunity to seek review of the denied I-829 petition. Cancellation of Removal: INA § 240A( 8 U. S. C. § 1229b) provides the remedy of cancellation of removal for a permanent resident in removal proceedings who has been a continuous resident in the United States for at least five years. Because of the dearth of previous I-829 petition cases in immigration court, there is virtually no law on the application of this provision to a conditional permanent resident. One of the main issues is the result of a grant of cancellation of removal.
However, does it simply cancel the removal proceedings, rendering the investor an eternal conditional permanent resident, or does it render the conditional permanent resident into a permanent resident, eligible to apply for naturalization?
It is also possible that the government will argue that INA § 240A( 8 U. S. C. § 1229b) does not apply to conditional permanent residents or that the I-829 petition denial renders the foreign national no longer a conditional permanent resident. In any event, counsel needs to be aware that arguing for cancellation may result in the termination of proceedings and evaluate both whether the investor is eligible for cancellation and whether and how to request that relief. Appeal: As previously mentioned, if an immigration judge affirms the denial of an I-829 petition, the investor can appeal to the Board of Immigration Appeals. If the Board of Immigration Appeals denies, the investor can seek judicial review in the federal circuit court of appeals.
REVERSING AN I-829 IS POSSIBLE WITH THE RIGHT COUNSEL The new wave of SPOF-based I-829 petition denials represents a significant shift in USCIS adjudication that places investors at risk even after they have fulfilled their job creation and sustainment obligations.
As the I-829 petition filing signifies the last step in a very long immigration journey, for EB-5 investors, the stakes are high. The moment an EB-5 investor receives a request for evidence, notice of intent to deny, or an NTA, they should consult with an experienced EB-5 immigration attorney.
A skilled advocate can challenge improper SPOF re-litigation or other alleged grounds for I-829 petition denial, preserve their rights in immigration court, and guide them through this critical stage of the EB-5 process.
JESSICA DENISI
Jessica DeNisi is a Partner at Klasko Immigration Law Partners, co-leading the EB-5 Developers and Regional Centers Practice. She advises clients on project structuring and assists with navigating the EB-5 Reform and Integrity Act of 2022, as well as preparing EB-5 investor petitions.
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