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circumstances, none of which would appear to be applicable to
an I-829.11 Nonetheless, based on personal experience, USCIS
will not entertain a motion to reopen or reconsider following an
I-829 once a Notice to Appear is issued. This presents a problem
relating to consistency and timeliness in adjudication.
Given the general demographics of the immigration court
dockets, most ICE trial attorneys and immigration judges lack
the day-to-day expertise that USCIS has in adjudicating investors’ petitions. Otherwise binding documents such as USCIS’
May 30, 2013 Memo, would on their face be non-binding
to EOIR as it is part of the Department of Justice, leading to
inconsistent adjudications between two entities. On its face
it is also not binding to ICE, which could presumably take a
position inconsistent with the Memo in a removal proceeding.
Consider as well that with immigration enforcement a
priority, immigration court dockets can stretch on for several
years before a merits hearing can be scheduled and the question
ultimately addressed. Facts relating to an I-829 can change drastically over such an extended period of time. ICE trial attorney
memoranda prioritize the deportation of criminals and material
status violators over investors whose projects might have come
up short of their inputs to the I-526 economic model. Further
clogging the docket presents an avoidable opportunity cost to
increasing national security through more efficient removals. A
better option is to allow for concurrent review of denials.
Matthew Galati
Matthew T. Galati is an
attorney in the business
immigration & compliance
practice of Greenberg
Traurig, LLP. Matthew’s
practice concentrates
on the representation of
international investors and regularly assisting
foreign nationals in obtaining permanent
residency through EB-5 investment. Matthew
also counsels investors and stakeholders in
EB-5 compliance, devoting efforts to meeting
requirements for successful I-829 adjudications
for removal of conditions.
INA § 216A(c)
8 C.F.R. § 216.6(b)(1).
3
59 Fed Reg. 26587 – 26593 (May 23, 1994).
4
See USCIS.gov, “USCIS Processing Time Informat [ۈ