Nohria v. Cuccinelli

                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA


                                                             Civil Action No. 20-cv-2085
                                                             Chief Judge Beryl A. Howell
    TRACY RENAUD, Senior Official
    Performing the Duties of the Director, U.S.
    Citizenship and Immigration Services,


                                          MEMORANDUM OPINION

          Plaintiff Priti Garg Nohria, an Indian citizen residing in the United States, Compl. ¶ 28,

ECF No. 1, seeks to compel the U.S. Citizenship and Immigration Services (“USCIS”) to

adjudicate her I-526 petition “for classification as a fifth preference immigrant to pursue

permanent resident status based on investing $500,000 in a new commercial enterprise through a

project that [d]efendant already approved for receiving pooled foreign investments,”

id. at 1,

after her petition had been pending without decision for less than two years, id.; Def.’s Not.

Suggestion of Mootness (“Def.’s Not.”), ECF No. 13. USCIS has moved to dismiss the

complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to “allege a plausible

claim that the alleged delay constitutes an unreasonable delay upon which relief may be granted

under the Administrative Procedure Act,” Def.’s Mem. P&A Supp. Def.’s Mot. Dismiss (“Def.’s

Mem.”) at 1, ECF No. 7, and as moot because plaintiff’s I-526 petition has been approved, Def.’s

Not. Plaintiff disputes that her complaint is moot until USCIS transfers the approval of her

        Pursuant to Federal Rule of Civil Procedure 25(d), plaintiff automatically substitutes Tracy Renaud,
successor to formerly listed Kenneth T. Cuccinelli, as the defendant in this action.

petition to the National Visa Center for processing, Pl.’s Resp. Order to Show Cause Relating to

Def.’s Not. (“Pl.’s OTSC Resp.”) at 2, ECF No. 14, and further contests USCIS’s motion to

dismiss, see generally Pl.’s Mem. P&A Opp’n Def.’s Mot. Dismiss (“Pl.’s Opp’n”), ECF No. 8.

        For the reasons set forth below, this complaint must be dismissed as moot.


        Following brief review of the statutory and regulatory background, the factual history

underlying the claims and procedural history of this case are summarized below.

        A. Statutory and Regulatory Background

                 1. EB-5 Classification Generally

        The Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., authorizes the

issuance of visas to different categories of immigrants, including, under the so-called “EB-5”

program, to immigrants who contribute to “employment creation” by investing in new

commercial enterprises that create full-time jobs for American workers, see Immigration Act of

1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4989 (Nov. 29, 1990) (codified at 8 U.S.C.

§ 1153(b)(5)); see 8 C.F.R. § 204.6 (2020) (defining the requirements and process for EB-5

“alien entrepreneur” classification). To qualify for a visa under the EB-5 program, an immigrant

must “create full-time employment for not fewer than 10 United States citizens or aliens lawfully

admitted for permanent residency or other immigrants lawfully authorized to be employed in the

United States (other than the immigrant and the immigrant’s spouse, sons, or daughters).” 8

U.S.C. § 1153(b)(5)(A)(ii). To that end, the immigrant must have made or be in the process of

making an investment of at least $1,000,000 generally or at least $500,000 into a “targeted

employment area,” 8 U.S.C. § 1153(b)(5)(C)(ii). 2

        Effective November 21, 2019, the threshold amounts required for EB-5 investments were increased from
$1,000,000 to $1,800,000 generally and from $500,000 to $900,000 for targeted employment areas. See Final Rule,

         A “targeted employment area” is defined as “a rural area or an area which has

experienced high unemployment (of at least 150 percent of the national average rate),”

id. § 1153(b)(5)(B)(ii). USCIS

permits certain so-called “economic units” to apply for categorization

as a “targeted employment area” and designation as a “regional center” through the Immigrant

Investor Pilot Program. See Departments of Commerce, Justice, and State, the Judiciary and

Related Agencies Appropriations Act of 1993 (“Appropriations Act”), Pub. L. No. 102-395, §

610(a), 106 Stat. 1828, 1874 (Oct. 6, 1992); 8 C.F.R. § 204.6(m). To qualify for designation as a

regional center, an economic unit must “promot[e . . .] economic growth,”

id. § 204.6(e); see

Appropriations Act § 610(a), and the proposal for such designation must explain, inter alia, how

the economic unit focuses on a geographic region of the United States and will promote

economic growth through “increased export sales, improved regional productivity, job creation,

or increased domestic capital investment.” 8 C.F.R. § 204.6(m)(3)(i). Upon designation as a

regional center, a foreign investor may then invest in the center to satisfy, with the requisite

threshold amount of funds, the EB-5 employment-creation requirement by creating jobs


Id. §§ 204.6(j)(4)(iii), 204.6(m)(7)(ii);

see also Interim Rule, Immigrant Investor

Pilot Program, 58 Fed. Reg. 44,606, 44,607 (Aug. 24, 1993).

                  2. EB-5 Visa Processing Procedure

         Foreign investors seeking EB-5 visas must first file a petition with USCIS, using Form I-

526, to petition for classification as an EB-5 investor. See 8 C.F.R. §§ 204.6(a), (c). The burden

of proof rests on petitioners to establish, by a preponderance of the evidence, that they are

“eligible to receive [the] visa” for which they are petitioning. 8 U.S.C. § 1361; see Matter of

EB-5 Immigrant Investor Program Modernization, 84 Fed. Reg. 35,750, 35,808 (Jul. 24, 2019). The parties agree
that, because plaintiff filed a Form I-526 petition on September 28, 2018, before the threshold amounts were
increased, she still qualifies for the program having invested the previously required sum. See Def.’s Mem. at 2 n.1;
Pl.’s Opp’n at 11.

Chawathe, 25 I. & N. Dec. 369, 375–76 (2010). USCIS adjudicates I-526 petitions based on the

totality of the evidence presented. See

id. at 375–76.

“Once the petition is processed and [if] a

visa becomes available—which may take years—the immigrant advances to ‘conditional’ lawful

permanent resident status.” Mirror Lake Vill. LLC v. Wolf, 

971 F.3d 373

, 375 (D.C. Cir. 2020)

(citing 8 C.F.R. § 216.6(a)(4)(iii)-(iv)). Successful adjudication and approval of an I-526

petition makes a petitioner eligible for a visa, but does not automatically provide a visa. At the

same time, approved eligibility status permits foreign investors (and their dependent family

members) to apply for two-year conditional permanent resident status either from within the

United States or overseas from the State Department at the United States consular post in the

petitioner’s home country. See 8 U.S.C. §§ 1186b(a)(1), 1201(a), 1255(i); 8 C.F.R. § 245.2; 22

C.F.R. §§ 42.32(e), 42.41, 42.42.

       After an I-526 petitioner is successfully adjudicated, approved and eligible for a visa, the

petitioner is then subject to various limits generally applicable to visa availability and issuance

before obtaining the visa. The INA imposes annual limits on the total number of immigrant

visas issued each year. See 8 U.S.C. § 1151. As relevant here, the agency first caps the

worldwide level of employment-based immigrants each fiscal year, 8 U.S.C. § 1151(d), then

limits the number of employment-based visas that may be granted to individuals from a single

country to 7 percent, see

id. § 1152(a)(2), and

further limits the number of EB-5 visas to 7.1

percent of all employment-based visas granted, see

id. § 1153(b)(5)(A). That

said, “not less than

three thousand” EB-5 visas are to be afforded to foreign investors investing in “targeted

investment areas” per fiscal year. See 8 U.S.C. § 1153(b). Subject to this allotment framework,

the State Department “allocate[s] immigrant visa numbers,” see 22 C.F.R. § 42.51(b), and when

the demand for visas is higher than the supply of visas for a given year in any given category, a

visa queue forms. Visa petitions in that queue are organized by their “priority date,” typically

the date the petition was filed. See 8 U.S.C. § 1153(e); 22 C.F.R. § 42.54. A petitioner in the

queue then becomes eligible for a permanent resident visa, barring any other indications of

ineligibility, when the listed priority date for petitioner’s country of origin and category printed

in most recent monthly Visa Bulletin, published by the State Department, see, e.g., U.S. DEP’T

OF STATE,   VISA BULL. FOR SEPTEMBER 2020 45 (Sept. 2000),

september-2020.html (last accessed Mar. 14, 2021), falls on a date later than petitioner’s priority


, id. At that point,

a visa is considered available to that petitioner. See

id. The agency historically

managed pending I-526 petitions on a first-in, first-out (FIFO)

basis until it switched, on March 31, 2020, to a “visa availability” process, which gives “priority

to petitions where visas are immediately available, or soon available.” See U.S. CITIZENSHIP AND


INVENTORY (“EB-5 Processing Announcement”) (Jan. 29, 2020),

petition-inventory (last accessed Mar. 14, 2021). Using the latter process, the USCIS Immigrant

Investor Program Office (IPO), the unit in charge of handling investor program applications,

Compl. ¶ 53, is able to designate particular petitions to prioritize for processing by factoring in

the availability of EB-5 immigrant visas and determining whether a visa is available or soon to

be available to a petitioner. Def.’s Mem. at 6. The agency ascertains visa availability by

comparing the petitioner’s country of birth with the State Department’s Visa Bulletin, which

indicates the availability of visas by country.

Id. Once an I-526

petition is designated for

priority, however, the IPO resumes ordering its adjudicative priority list “in FIFO order.” See


Answers”) (Sept. 17, 2020),


immigrant-investor-program-visa-availability-approach (last accessed Mar. 14, 2021).

       After a petition is designated for priority and rises to the top of the FIFO list, it may be

approved and proceed to the National Visa Center for pre-processing. See U.S. DEPARTMENT OF


visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition.html (last visited Mar. 14,

2021). According to the government, this process is an improvement over the previously used

“first-in, first-out” approach and better aligns with congressional intent by allowing petitioners

from countries where visas are immediately available to be processed for EB-5 visas allotted by

Congress without waiting behind petitioners from oversubscribed countries without visas

currently available. See Questions and Answers.

       B. Factual Background

       Plaintiff Priti Garg Noriah has been residing in the United States in H-4 non-immigrant

status since March 2010. Compl. ¶ 32. On September 28, 2018, she sought to change her

immigration status by filing a Form I-526, seeking classification as an EB-5 immigrant.

Id. ¶ 45.

To qualify for the classification, plaintiff previously entered into and signed a written

subscription agreement to purchase a subscription unit and become a limited partner of CanAm

New York Regional Center, LP VI (“CanAm VI”) project, and subsequently invested $530,000

in the project.

Id. ¶ 35–42.

This project was a new commercial enterprise initiated by The New

York Regional Center, LLC (“NYMRC”), a USCIS-designated regional center.

Id. ¶ 34–35. 6

NYMRC pooled investments from foreign nationals to construct a sixty-five-story building

, id. ¶ 36,

that is estimated to create at least 7,550 full-time jobs

, id. ¶ 36.

        Plaintiff’s I-526 petition conformed to an exemplar I-526 prepared by NYMRC as part of

its regional center approval process and to the notice provided by USCIS to NYMRC regarding

the documents a foreign investor must file with the Form I-526 in order to qualify for EB-5

status through the project.

Id. ¶ 46.

In addition, plaintiff submitted documents showing both

how her investment would create ten full-time jobs and the source of the invested funds.

Id. ¶ 46–47.

On October 3, 2018, USCIS accepted her Form I-526 and provided a receipt.

Id. ¶ 48;

Compl., Ex. B, U.S. Citizenship and Immigration Services Receipt, ECF No. 1-2.

        C. Procedural History

        On July 30, 2020, plaintiff initiated this litigation, challenging USCIS’s delay in

adjudicating her Form I-526 under the Administrative Procedure Act (“APA”) and seeking a

court order compelling USCIS to adjudicate her I-526 petition. See Compl. at 1;

id. at 17,


for Relief ¶¶ A–B (requesting relief as to “adjudication of [] Plaintiff’s I-526 petition; [ and]

[c]ompelling [d]efendant to process and render a final decision on Plaintiff’s I-526 petition”). In

response, USCIS moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), for

failure to state a claim, see Def.’s Mem. at 1, which motion became ripe for resolution on

November 13, 2020, see Def.’s Reply Supp. Def.’s Mot. Dismiss (“Def.’s Reply”), ECF No. 10.

As noted, while the motion was pending, USCIS submitted a Notice of Suggestion of Mootness,

advising that, on February 12, 2021, USCIS approved petitioner’s I-526 petition rendering

plaintiff’s complaint moot, see Def.’s Not., a conclusion disputed by plaintiff, see Pl.’s OTSC

Resp. at 2.


         USCIS moves to dismiss, under Federal Rule of Civil Procedure 12(b)(6), arguing that

plaintiff fails to state a claim of unreasonable delay of the adjudication of plaintiff’s I-526

petition because “the petition has not been unreasonably delayed, nor has any delay been so

egregious as to warrant the extraordinary remedy of mandamus.” Def.’s Mem. at 8. Moreover,

in light of USCIS’s recent approval of plaintiff’s I-526 petition, see Def.’s Not., USCIS argues

that the case should be dismissed as moot, see Def.’s Reply Pl.’s OTSC Resp. (“Def.’s OTSC

Reply”) at 4, ECF No. 15. 3 For the reasons outlined below, the Court agrees that this action is

now moot.

         Although USCIS did not move to dismiss for lack of subject matter jurisdiction due to

mootness, under Federal Rule of Civil Procedure 12(b)(1), its Notice of Suggestion of Mootness

explains that plaintiff’s I-526 petition, the subject of the underlying complaint, has been

approved. While the “initial burden of proving mootness lies with the party claiming it,”

Planned Parenthood of Wis., Inc. v. Azar, 

942 F.3d 512

, 516 (D.C. Cir. 2019) (citing Honeywell

Int’l, Inc. v. Nuclear Regulatory Comm’n, 

628 F.3d 568

, 576 (D.C. Cir. 2010)), the Court must

“address the issue [of mootness] sua sponte because [it] goes to the jurisdiction of this [C]ourt,”

Fund for Animals, Inc. v. United States Bureau of Land Mgmt., 

460 F.3d 13

, 24 (D.C. Cir. 2006)

          USCIS acknowledges the omission of an index of an administrative record contemporaneously with the
dispositive motion, positing that the index is “unnecessary to resolve the legal arguments presented in this motion”
because “the basis for [plaintiff’s] challenge is not final agency action, but rather agency inaction.” Def.’s Mem. at
8 n.7. In the alternative, if this Court deems Local Civil Rule 7(n) applicable here, USCIS formally moves to waive
compliance with the requirements of the rule.

Id. Local Civil Rule

7(n) requires agencies, in cases involving
judicial review of administrative agency actions, to “file a certified list of contents of the administrative record with
the Court within 30 days following service of . . . the filing of a dispositive motion.” LCvR 7(n). Following the
practice of other courts in this jurisdiction, the Court grants USCIS’s motion to waive compliance with Local Civil
Rule 7(n) because “the administrative record is not necessary for [the court’s] decision.” Connecticut v. United
States Dep’t of Interior, 

344 F. Supp. 3d 279

, 294 (D.D.C. 2018) (quoting Mdewakanton Sioux Indians of Minn. v.

264 F. Supp. 3d 116

, 123 n.12 (D.D.C. 2017) and citing PETA v. U.S. Fish & Wildlife Serv., 

59 F. Supp. 3d 91

, 94 n.2 (D.D.C. 2014)).

(quoting Mine Reclamation Corp. v. FERC, 

30 F.3d 159

, 1522 (D.C. Cir. 1994)); see also Fort

Bend Cty. v. Davis, 

139 S. Ct. 1843

, 1849 (2019) (finding that a court “must consider” its

subject-matter jurisdiction sua sponte “at any point in the litigation”) (internal quotation marks

and citation omitted); North Carolina v. Rice, 

404 U.S. 244

, 246 (1971) (“Mootness is a

jurisdictional question because the Court ‘is not empowered to decide moot questions or abstract

propositions’” (quoting United States v. Alaska S. S. Co., 

253 U.S. 113

, 116 (1920))).

       As the Supreme Court has explained “Article III of the Constitution limits federal subject

matter jurisdiction to ‘cases’” and ‘controversies,’” Campbell-Ewald Co. v. Gomez, 

577 U.S. 153

, 160–61 (2016) (quoting U.S. CONST. art. III. §2), a requirement interpreted “to demand that

‘an actual controversy . . . be extant at all stages of review, not merely at the time

the complaint is filed,’”

id. (quoting Arizonans for

Official English v. Arizona, 

520 U.S. 43

, 67

(1997) (quoting Preiser v. Newkirk, 

422 U.S. 395

, 401 (1975))). “[A] case becomes moot when

the issues presented are no longer live’ or the parties lack a legally cognizable interest in the

outcome.” Porzecanski v. Azar, 

943 F.3d 472

, 479 (D.C. Cir. 2019) (quoting Conservation

Force, Inc. v. Jewell, 

733 F.3d 1200

, 1204 (D.C. Cir. 2013)). “[A] case is moot if intervening

events make it impossible to grant any effectual relief or if a party has already obtained all the

relief that it has sought.”

Id. (internal quotation marks

and citations omitted). Thus, “the

mootness doctrine prohibits [courts] from deciding a case if ‘events have so transpired that the

decision will neither presently affect the parties’ rights nor have a more-than-speculative chance

of affecting them in the future.’” J.T. v. D.C., 

983 F.3d 516

, 522 (D.C. Cir. 2020) (quoting

Clarke v. United States, 

915 F.2d 699

, 701 (D.C. Cir. 1990) (en banc) (internal quotation marks


       USCIS contends that this case should be dismissed as moot because plaintiff’s complaint

alleges delay only “in adjudicating, or withholding the adjudication of, [p]laintiff’s I-526

petition,” Prayer for Relief ¶ B, and plaintiff’s I-526 petition was favorably adjudicated on

February 12, 2021, Def.’s OTSC Reply at 1. Plaintiff responds that the case is not moot because

USCIS has “failed to inform [p]laintiff or the Court whether USCIS completed an essential part

of the petition approval process by sending the approval to the National Visa Center (NVC) so

that the Department of State may begin the process for [p]laintiff’s immigrant visa application.”

Pl.’s OTSC Resp. at 1.

       USCIS is correct that plaintiff’s claim of unreasonable delay is now moot. Plaintiff pled

a single cause of action, alleging only that USCIS had “unreasonably delayed or unlawfully

withheld the adjudication of [p]laintiff’s I-526 petition.” Compl. ¶ 87; see also

id. ¶ 66


that “[d]espite the immediate availability of an immigrant visa number for Priti Nohria relating to

her I-526 petition, USCIS has failed to issue a decision on her petition.”); Pl.’s Opp’n at 27 n.20

(“Plaintiff is not asking the Court to order the agency to approve her petition . . . [s]he is only

asking for an order directing the agency to render a final decision and conclude the petition

presented to it.”). The limited scope of plaintiff’s claim is confirmed by the scope of the relief

she seeks, namely to compel USCIS to “process and render a final decision on” her I-526

petition. Compl. at 17. In her complaint, plaintiff made no reference to the NVC, of any claim

of agency delay in processing her visa, or of any relief that would have occurred after the

adjudication of her I-526 petition. Plaintiff simply requested a “final decision” on her I-526, and

that has now occurred.

       Plaintiff’s emergent desire to have her approved I-526 petition submitted to the NVC “so

that the Department of State may begin the immigrant visa process” is understandable because,

as plaintiff concedes, the I-526 approval “does not by itself accord [p]laintiff permanent resident

status.” Pl.’s OTSC Resp. at 1. Yet, plaintiff never sought permanent resident status through

this action and, though challenging the agency’s speed in adjudicating her I-526 petition, she

raised no challenge to the agency’s speed in granting her an EB-5 visa or permanent resident

status. 4 In other words, by rendering a final decision on plaintiff’s I-526 petition, USCIS has

afforded plaintiff all the relief she demanded in her complaint.

Id. at 2.

This case is therefore


        Plaintiff insists that the case is not moot and asserts that she “still has a concrete interest”

in pursuing “her request that USCIS transmit the approval of her petition to the NVC.” Plaintiff

supports her position with two cases, Pl.’s OTSC Resp. at 2 (citing Knox v. SEIU, Local 1000,

567 U.S. 298

(2012) and Chafin v. Chafin, 

568 U.S. 165

, 180 (2013)), but both cases are

inapposite. In Knox v. SEIU, Local 1000, plaintiffs challenged a union’s increase in dues

without proper 

notice. 567 U.S. at 298

. After finding defendant’s second notice also inadequate

in remedying the harm claimed, the Court concluded that the original claim remained “live” and

the suit was not moot.

Id. In Chafin v.

Chafin, a legal challenge under the International Child

Abduction Remedies Act was found not to be moot, even after the child had been removed to

another country, because a “live dispute” and the “possibility of effectual relief” 

remained. 568 U.S. at 173

, 180. By contrast, here, any live dispute has been extinguished because all “effectual

relief” plaintiff sought within the four corners of her complaint was provided in full when her I-

          Plaintiff strains to re-write her complaint to expand the relief sought to permanent resident status by
pointing to a checked box in her I-526 petition indicating that she intended to pursue “immigrant visa processing,”
as proof that “forwarding the approval to the NVC” was a “part of completing the process.” Pl.’s OTSC Resp. at 1;
see Pl.’s Opp’n, Ex. 9, Form I-526 at 8, ECF No. 8-9. This reference to plaintiff’s ultimate goal is simply not the
same as the relief sought in the complaint, which is silent about seeking any relief beyond what she has already
achieved in the adjudication of her I-526 petition.

526 petition was adjudicated. Plaintiff’s new demand to extend the life of this case until her

approved petition is transferred to the NVC is relief beyond the scope of her original complaint.

         Accordingly, plaintiff’s claim of unreasonable delay in the adjudication of her I-526 is

now moot and the complaint must be dismissed. 5


         For the foregoing reasons, plaintiff’s claim of unreasonable agency delay in rendering a

final decision on her I-526 petition is now moot. Accordingly, the case is dismissed and

USCIS’s motion to dismiss is denied as moot. USCIS’s motion to waive compliance with Local

Civil Rule 7(n) is granted.

         An Order consistent with this Memorandum Opinion will be filed contemporaneously.

         Date: March 14, 2021

                                                                 BERYL A. HOWELL
                                                                 Chief Judge

          If this case were not moot, USCIS’s motion to dismiss under Rule 12(b)(6) would be granted for failure to
state a claim of unreasonable delay upon which relief can be granted. The APA requires agencies to “proceed to
conclude a matter presented to [them]” in a “reasonable time,” 5 U.S.C. § 555(b), and authorizes reviewing courts to
“compel agency action unlawfully withheld or unreasonably delayed,”

id. § 706(1). A

claim of unreasonable delay
under the APA is determined by employing “the six-factor ‘TRAC test.’” Telecomms. Rsch. & Action Ctr. v. FCC

750 F.2d 70

, 80 (D.C. Cir. 1984) (internal quotations and citations omitted). The agency’s process is
clearly governed by a solid rule of reason—the visa availability approach—meeting the first factor, see Def.’s Mem.
at 12; Pl.’s Opp’n at 16, and, under the fourth factor, any delay “reflects USCIS’s competing priorities and limited
resources,” Def.’s Mem. at 16, such that granting plaintiff’s requested relief would simply “move [her] petition to
the front of the queue at the expense of other petitioners,” Def.’s Reply at 15. Plaintiff’s claim fails to indicate any
consequences stemming from the alleged delay beyond delay itself, see Compl. ¶ 82 (alleging that “USCIS’s delay
is depriving [p]laintiff and her husband of the ability to obtain permanent residency through consular processing or
by adjustment of statute” and “delay[ing] the removal of conditions on [p]laintiffs eventual permanent resident
status”), which falls short of meeting the third and fifth factors of showing that human health and welfare are at
stake or other prejudiced interests caused by delay, respectively. Finally, the sixth factor is neutral because plaintiff
does not allege any bad faith on the part of the agency. The rule of reason governing the adjudication of I-526
petitions, the absence of any compelling justification for expediting the processing of plaintiff’s petition “at the
expense of other petitioners” arbitrarily, Def.’s Reply at 15, not to mention the substantial progress evidenced by the
adjudication of plaintiff’s I-526 petition on February 12, 2021, far outweighs the hardship this shorter-than-typical
delay has caused plaintiff. Thus, consideration of these factors, as a whole, favors USCIS and demonstrates that
plaintiff has not stated a claim under the APA for unreasonable delay. See Sarlak v. Pompeo, Civil Action No. 20-
35 (BAH), 

2020 U.S. Dist. LEXIS 101881

, at *19 (D.D.C. Jun. 10, 2020) (reaching the same conclusion); Ghadami
v. United States Dep’t of Homeland Sec., Civil Action No. 19-00397 (ABJ), 

2020 U.S. Dist. LEXIS 47623

, at *9
(D.D.C. Mar. 19, 2020) (same).


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