Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 1 of 11

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

LUIS FERNANDO PAES DE BARROS

Plainti ff,

v.

) ) ) ) ) ) )

NICHOLAS COLUCCI, Chief ) Immigrant Investor Program ) U.S. Citizenship and Immigration Services ) 131 M Street NE ) Washington, DC 20529 )

JULIA HARRISON, Deputy Chief [mmigrant Investor Program U.S. Citizenship and Immigration Services 131 M Street NE Washington, DC 20529

LORI SCIALABBA, Director U.S. Citizenship and Immigration Services 20 Massachusetts Avenue, N.W. Washington, DC 20529

JOHN F. KELLY, Secretary U.S. Department of Homeland Security 245 Murray Lane, S.W. Washington, DC 20528

Defendants.

) ) ) ) ) ) ) ) ) )

) ) ) ) ) ) ) ) ) ) ) ) __________________________ )

Civ. No.:

COMPLAINT

COMPLAINT FOR WRIT OF MANDAMUS

1

FILED by ft D.C.

MAR 1 3 2017 STEVEN M. LARIMORE CLERK U.S. OIST. CT. S. D. of FLA. - MIAMI

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The Plaintiff, Mr. Luis Fernando Paes de Barros, through counsel, complains of the

Defendants, NICHOLAS COLUCCI, Chief of the Immigrant Investor Program, JULIA

HARRISON, Deputy Chief of the Immigrant Investor Program, LORI SCIALABBA, Director of

U.S. Citizenship and Immigration Services, JOHN F. KELLY, Secretary of U.S. Department of

Homeland Security, as follows:

I. PREFATORY STATEMENT

1. This action is brought to remedy the unlawful , unreasonable, arbitrary and

capricious delay by the U.S. Citizenship and Immigration Services ("USCIS") in

adjudicating the Form l-526, " Immigrant Petition by Alien Entrepreneur" ("Form I-

526 Petition"), filed by Plaintiff Luis Fernando Paes de Barros over twenty months

ago. Mr. Paes de Barros' Form 1-526 Petition meets all the requirements for

approval. The agency's continuing and inexcusable delay in acting on Mr. Paes de

Barros' Form 1-526 Petition has caused him and his family significant harm and is

contrary to the Administrative Procedure Act ("AP A"), 5 U.S.C. §§ 555(b ), 706( I),

706(2)(A), (C), (D), and warrants an exercise of this Court's mandamus power

under the Mandamus and Venue Act ("Mandamus Act"), 28 U.S.C.§ 1361. Thus,

Paes de Barros seeks the Court to issue an order directing Defendants to adjudicate

Paes de Barros Form I-526 Petition within 15 days pursuant to its authority under the

AP A and the Mandamus Act.

II. JURISDICTION

2. This Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331

because Plaintiffs claims arise under the laws of the United States, specifically the

Immigration and Naturalization Act, 8 U.S.C. § 110 I, et seq. (''INA") and its

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implementing regulations. Further, this Court has subject-matter jurisdiction over

this mandamus action is provided by 28 U.S.C. §§ 136 1 and 1331. Finally, this

Court has jurisdiction over the instant matter pursuant to the Administrative

Procedures Act ("APA"), 5 U.S.C. §§ 555(b), 702 and 706(b). The APA requires

USCIS to carry out its duties within a reasonable time 5 U.S.C § 555{b) provides

that "[w]ith due regard for the convenience and necessity of the parties or their

representatives and within a reasonable time, each agency shall proceed to conclude

a matter presented to it." (Emphasis added).

Ill. VENUE

3. Venue is proper under 28 U.S.C. § l391(e), because this is an action against officers

and agencies of the United States in their official capacities, brought in the district

where a substantial part of the events or omissions giving rise to the Plaintiff' s claim

occurred or where a substantial part of the property that is the subject of the action is

situated. The Defendant NICHOLAS COLUCCI is sued in his official capacity as

Chief of the Immigrant Investor Program Office, a United States federal agency and

resident in this district. The Defendant JULIA HARRISON is sued in her official

capacity as Deputy Chief of the Immigrant Investor Program Office, a United States

federal agency and resident in this district. The Defendant LORI SCIALABBA is

sued in his official capacity as Director of USCIS, a United States federal agency

and resident in this district. The Defendant JOHN F. KELLY is sued in his official

capacity as Secretary of the U.S. Department of Homeland Security ("DHS"), a

United States federal agency and resident in this district. Because national policy

concerning adjudication of applications for immigration benefits - including

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adjudication of Form 1-526 Petition - is formulated by the DHS and implemented by

users, venue is proper in this district.

4. Moreover, venue is also proper as it is brought in the district where a substantial part

of the events or omissions giving rise to the Plaintifl"s claim occurred or where a

substantial part of the property that is the subject of the action is situated. The

Plaintiffs I-526 Petition at the heart of this matter is predicated upon his investment

into Flagler Station, a project designed to fund the construction of94,968 square foot

Marriott Residence Inn Extended Stay Hotel located on a 2.58-acre lot strategically

located within the Flagler Station Business Park in Miami.

IV. PARTIES

5. The Plaintiff, Mr. Luis F emando Paes de Barros, present! y resides at 150 17

Gaulberry Run Winter Garden Florida 34787. Mr. Paes de Barros was born in Sao

Paulo, Brazil in 1978 and is a citizen of Brazil.

6. The Defendants, NICHOLAS COLUCCI, Chief: Immigrant Investor Program,

JULIA HARRISON. Deputy Chief, Immigrant Investor Program, LORI

SCIALABBA, Director, USCIS, and JOHN F. KELLY, Secretary, DHS, are sued in

their official capacities. Defendants John F. Kelly and Lori Scialabba has

responsibility for the administration of immigration laws pursuant to 8 U.S.C.

§ 1103. Defendants Nicholas Colucci and Julia Harrison presumptively oversee the

entire EB-5 program.

V. FACTUAL AND PROCEDURAL HISTORY

7. Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through

job creation and capital investment. Under the program, a foreign citizen may

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obtain pennanent resident status upon the investment of at least $500,000 and the

creation of at least ten full-time jobs as part of a new business venture. See 8

U.S.C. § 1153(b)(5); 8 C.F.R. § 204.6(f)(2). As part of the EB-5 Program,

Congress also created (and has regularly renewed) the Immigrant Investor Pilot

Program, now called the Immigrant investor Program.

8. This EB-5 pr01:,JTam allows an EB-5 investor to invest the requisite capital through a

USCIS-approved "regional center." A regional center is an entity for promoting

economic growth and job creation and each center may contain one or more new

commercial enterprises under its umbrella. See 8 C.F.R. § 204.6(e), (m)(3). To

apply for an EB-5 visa, a foreign entrepreneur must submit a Fonn I-526 Petition

and supporting documentation demonstrating that the required capital has

been committed and is actually at risk; that the investment is made from the

entrepreneur's own lawfully acquired funds; and the existence of a comprehensive

business plan demonstrating that ten full-time jobs will be created by the

investment. 8 C.F.R. § 204.6U). For an investment through an approved regional

center, the petition must be accompanied by evidence that the requisite investment

will create ten full-time positions either directly or indirectly for no fewer than I 0

individuals. /d. § 204.6(j)(4)(iii).

9. Mr. de Barros invested $500,000 in Flagler Station Lenders, LLC ("Flagler Station"

or "the Company"), a commercial enterprise fonned in July 2014. The Company is

lending up to $9,000,000 to the Project owner, DVI Cardel Flagler Residence, LLC

("DVI Cardel" or "Borrower"). DVI Cardel is managed by the Company's

Manager and the Project developer, DEBS Development LLC ("Developer"). The

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Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 6 of 11

purpose of Flagler Station is to provide up to $9,000,000 in EB-5 capital to DVI

Cardel to help fund the construction and operations ofThe Residence Inn at Flagler

Station in Miami, Florida (the "Project"). Upon completion, the Project will consist

of a 5-story, 94,968 square feet, 123-room Marriott Residence Inn Extended Stay

Hotel located on a 2.58-acre lot strategically located within the Flagler Station

Business Park in Miami. Flagler Station Business Park is the largest business park

in South Florida offering more than 105 million square feet of campus-style office,

retail and industrial spaces at build out.

10. The Company has entered into a Business Affiliate Agreement with Florida EB-5

Investments, LLC ("Florida EB-5 Investments"), which has been designated as a

regional center under the Immigrant Investor Program. The designation of Florida

EB-5 Investments includes approval of the construction and hotel industry sectors

throughout the State of Florida. Mr. de Barros completed an investment in Flagler

Station when $550,000 was wired to Signature Bank, the Company's escrow agent,

on April 27, 2015. Of the $550,000 transferred by the Petitioner, $50,000 represents

an Expense Amount ("administrative fees"), and the balance of $500,000 is the

capital contribution in Flagler Station. Based on the investment, the Petitioner owns

approximately 5.56% of the Company. On May 5, 2015, the Florida Department of

Economic Opportunity confirmed that Flagler Station is principally doing business

in a targeted employment area based on its high unemployment rate.

Subsequently, Mr. Paes de Barros filed the I-526 Petition which was acknowledged

as received byUSCIS on June 2, 2015.

11. Since filing the I-526 petition more than 20 months ago, Mr. Paes de Barros, through

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Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 7 of 11

counsel, has undergone exhaustive efforts to determine the status of his application

including inquiring on multiple occasions to USCIS regarding the status of the

application and regularly checking the USCIS online case status. Despite his

exhaustive efforts to follow-up on the status of his application, USCIS has not

adjudicated same.

VI. CLAIMS

12. Mr. Paes de Barros re-alleges and incorporates by reference, as if fully set herein, the

allegations in paragraphs 1-11 above.

13. Defendants' failure to adjudicate and approve Mr. Paes de Barros I-526 Petition

constitutes an unreasonable failure to act in violation of the Administrative

Procedures Act.

14. Section 555 of the APA provides that administrative agencies shall conclude

matters presented to the agency for decision "within a reasonable time." See 5

U.S.C. § 555(b ). Moreover, the APA dictates the right of judicial review to a

person "adversely affected or aggrieved'' by an agency's "fail[ure] to act." 5

u.s.c. § 702.

15. When, as here, a proper showing is made, "[t]he reviewing court shall . .. compel

agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1).

The court must also "hold unlawful and set aside agency action" that is: "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law"; "in

excess of statutory jurisdiction, authority, or limitations, or short of statutory right";

or "without observance of procedure required by law." !d. § 706(2)(A), (C), (D).

16. Mr. Paes de Barros has fully complied with all of the statutory and regulatory

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requirements for seeking adjudication of his Form 1-526, including submission of

all necessary forms and supporting documents. Despite this, Defendant USCIS has

unreasonably failed to adjudicate the Plaintiffs application, thereby depriving the

Plaintiff of his rights under INA§ 209,8 U.S.C. §1159. Pursuant to 5 U.S.C. §§

555(b) and 702 (AP A). Mr. Paes de Barros has no other adequate remedy available

to him other than filing the instant complaint. Accordingly, Mr. Paes de Barros would

seck an order compelling USCIS to act, within 15 days, on his pending Form 1-526

Petition,

17. The Defendants further owe Plaintiff a duty to adjudicate the Form 1-526 Petition

pursuant to the fNA and its implementing regulations and have unreasonably failed

to perform that duty. Accordingly, Mr. Paes de Barros further seeks a writ of

mandamus to compel Defendants "to perform a duty owed to the plaintiff." 28 U.S.C. §

1361. Plaintiff has no alternative means to obtain adjudication of the 1-526 Petition

and the right to issuance of the writ is "clear and indisputable".

18. Defendants' delay is without justification and has forced the Plaintiff to resort to

this Court for relief, and the Plaintiff is entitled to attorney's fees pursuant to the

Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 24 l(d)(2).

IX. PRAYER

WHEREFORE, the Plaintiff prays that this Court:

I . Compel the Defendants and those acting under them to take all appropriate

action to adjudicate Mr. Paes de Barros' Form 1-526 Petition within 15 days.

2. Enter a judgment declaring Defendants' unreasonable delay and failure to

adjudicate Mr. Paes de Barros' Form l-526 Petition to be in direct violation of

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the APA and INA.

3. Grant attorney's fees and costs of court to the Plaintiff under the Equal Access

to Justice Act ("EAJA");

4. Grant such other and further relief as this Court deems proper.

Respectfully submitted this J.Q_ day of March, 2017.

9

Rusten C. d Esq. Florida Bar No.:·O"Q1"'2r'C:"'td-~­Colornbo & Hurd, PL 301 E. Pine St. , Suite 300 Orlando, FL 32801 Tel: (407) 478-1 11 I Fax: (407) 447-2488 Email: rhurd@colombohurd.com

Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 10 of 11

CERTIFICATE OF SERVICE

I, Rusten C. Hurd, certify that on March J.Q_, 20 17, a true and exact copy of the foregoing to was served by first class certified mail to:

NICHOLAS COLUCCI, Chief Immigrant Investor Program U.S. Citizenship and Immigration Services 131 M Street NE Washington, DC 20529

JULIA HARRISON, Deputy Chief Immigrant Investor Program U.S. Citizenship and Immigration Services 131 M Street NE Washington, DC 20529

LORI SCIALABBA, Director U.S. Citizenship and Immigration Services 20 Massachusetts A venue, N. W. Washington, DC 20529

JOHN F. KELLY, Secretary U.S. Citizenship and Immigration Services U.S. Department of Homeland Security 245 Murray Lane, S.W. Washington, DC 20528

10

Rusten C. Hurd, Esq. Florida Bar No.: 0145343 Colombo & Hurd, PL 301 E. Pine St., Suite 300 Orlando, FL 32801 Tel: ( 407) 478-1111 Fax: (407) 447-2488 Email: rhurd@colombohurd.com

Case 1:17-cv-20947-CMA Document 1 Entered on FLSD Docket 03/13/2017 Page 11 of 11

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