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  • Article: Examining the Carlsson Decision Denying Restraining Order and Injunction by Joseph Whalen

    Examining the Carlsson Decision Denying Restraining Order and Injunction

    by Joseph Whalen

    In her October 3, 2012, Minutes Order denying the Plaintiffs’ requested Temporary Restraining Order and Injunction, Judge Christina A. Snyder wrote, among other things:

    “...As noted, the agency found three principal deficiencies:

    (1) insufficient evidence plaintiffs’ capital had been placed at risk;

    (2) an insufficient comprehensive business plan; and

    (3) a lack of analysis based on a reasonable methodology for determining job creation.”

    Carlsson, et al v. U.S. Citizenship and Immigration Services, et al. , CV 12-7893-CAS (AGRx), U.S. District Court of Central District of California, Oct. 3, 2012, at p. 11.

    As noted, the above excerpt is merely in response to one of the central challenges brought in the complaint against USCIS by these Regional Center affiliated EB-5 investors. The charge at issue there was that USCIS had acted improperly, as described in the order: “Arbitrary and Capricious Agency Action and Exceeding Statutory Authority”. Ultimately, on that question the Judge found for USCIS and that it had not acted as charged. This discussion will focus on items number (2) and (3) from the Judge’s decision.

    USCIS more closely examined the actual Business Plan (BP) and Economic Analysis (EA) underlying the instant Specific Project. The other issue concerning a failure to place sufficient funds “at risk” and a failure to expend the money is better illustrated through the a Texas case: Al-Humaid v. Roark, Civil Action No. 3:09-CV-982-L, U.S. District Court, Northern District of Texas, Dallas Division January 26, 20101. The instant case stands for a fundamental concept, namely, that the two most critical building blocks for a Regional Center and more specifically, each and every of its Specific Projects, are the BP and the EA based upon it. USCIS found the BP and EA lacking for the Specific Project into which these would-be immigrants invested. It appears that the actual project offered strayed too far from the hypothetical upon which it was based2. That was the finding of the Court in this case. The agency found that the plans and associated methodologies were not credible and the Court found no reason not to concur in that assessment.

    1 See also the AAO Decision. This was a “stand-alone” in investor not affiliated with any Regional Center.

    2 “Instead, as noted previously, defendants appear to have closely

    evaluated all of the evidence plaintiffs submitted—including weighing the deviations from Innovation LP’s original proposal—in deciding that plaintiffs were unable to demonstrate that they qualified for the immigration benefits at issue.” At p. 13 This is another way of framing the “within the scope” analysis.

    About The Author

    Joseph Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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