Cai v. Immigrant Investor Program Office

Summary

The United States District Court for the District of Columbia granted defendants’ motion to dismiss Hao Cai’s Administrative Procedure Act challenge to the denial of his EB-5 investor petition. The court held that the EB-5 Reform and Integrity Act’s exhaustion requirement applies to post-enactment agency determinations, even when the underlying petition was filed before the Act’s enactment. The court also rejected a futility exception because the exhaustion requirement is statutory and because the Administrative Appeals Office could conduct de novo review.

Holdings

1. The RIA's jurisdictional bar applies because it governs review of agency determinations, not the date on which the underlying I-526 petition was filed. A court lacks jurisdiction to review an EB-5 determination until the alien investor has exhausted all administrative appeals.
2. The court may not excuse failure to exhaust based on futility when Congress has imposed a statutory exhaustion requirement. The RIA's jurisdictional bar contains no futility exception.

Questions Presented

1. Whether the EB-5 Reform and Integrity Act's statutory exhaustion requirement barred judicial review of USCIS determinations issued after the Act's effective date when the underlying I-526 petition was filed before the Act's enactment.
2. Whether a futility exception permitted the court to excuse exhaustion despite the RIA's express statutory jurisdictional bar.

Disposition

dismissed