UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
LULU LIU, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 25-3758 (RBW)
)
MARKWAYNE MULLIN, 1 )
in his official capacity as Secretary of the )
United States Department of Homeland )
Security, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
The plaintiffs, Li and Lulu Liu, are Chinese nationals who petitioned for immigrantinvestor visas in 2016 after they each invested $500,000 pursuant to the EB-5 immigrant-investor
program. See Complaint (“Compl.”) ¶¶ 1,7, ECF No. 1. Their visa petitions were denied, id.
¶ 3, and they now bring this civil action against the defendants, Markwayne Mullin, the Secretary
of the United States Department of Homeland Security; Joseph Edlow, the Director of the United
States Citizenship and Immigration Services (“USCIS”); Alissa Emmel, Chief of the USCIS
Immigrant Investor Program Office; and the USCIS itself pursuant to the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 555(b), 701, 702, 706, id. ¶¶ 8–12. The plaintiffs seek a
declaratory judgment that the denial of their visa petitions was unlawful and an order requiring
the defendants to re-open and re-adjudicate their petitions. Id. at 22. Currently pending before
the Court is the defendants’ motion to dismiss Plaintiff Lulu Liu’s claims pursuant to Federal
1
Markwayne Mullin, Secretary of Homeland Security, is automatically substituted for his predecessor, Kristi Noem, pursuant to Federal Rule of Civil Procedure 25(d).
Rule of Civil Procedure 12(b)(1). See Defendants’ Motion to Dismiss (“Defs.’ Mot.”) at 1, ECF
No. 9. Upon careful consideration of the parties’ submissions,2 the Court concludes that it must
grant the defendants’ motion to dismiss Plaintiff Lulu Liu’s claims.
I. BACKGROUND
A. Statutory Background
Congress established the EB-5 immigrant-investor visa program in the Immigration Act
of 1990. Immigration Act of 1990, Pub. L. No. 101-649, § 121, 104 Stat. 4978, 4987 (1990)
(codified at 8 U.S.C. § 1153(b)(5)). “Under [the EB-5] program, investors (and their spouses
and unmarried children under 21) are eligible to apply for lawful permanent residence ([to]
become a Green Card holder) [in the United States].” U.S. Citizenship & Immigr. Servs., EB-5
Immigrant Investor Program, https://www.uscis.gov/working-in-the-united-states/permanentworkers/eb-5-immigrant-investor-program (last updated Mar. 1, 2023). The EB-5 visa process is
administrated by the Department of State and the USCIS, with the USCIS being responsible for
“assesses[ing] whether petitioners qualify for the requested visa.” Delaware Valley Reg’l Ctr.,
LLC v. U.S. Dep’t of Homeland Sec., 106 F.4th 1195, 1198 (D.C. Cir. 2024).
To qualify for an EB-5 visa, a foreign national must “invest capital in a new commercial
enterprise that will benefit the United States economy and create full-time employment for ten
citizens or non-citizens with work authorization.” Id. at 1197 (internal quotation marks omitted);
see 8 U.S.C. § 1153(b)(5)(A)–(D). 3 In 1992, Congress created the Pilot Immigration Program,
2
In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Plaintiffs’ Opposition to Defendants’ Partial Motion to Dismiss (“Pls.’ Opp’n”), ECF No. 12; and (2) the Defendants’ Reply in Further Support of Defendants’ Motion to Dismiss (“Defs.’ Reply”), ECF No. 13. 3
In 2016, when the plaintiffs made their investments, “immigrant[s] investing in an enterprise . . . had to contribute at least $500,000 to qualify” for the EB-5 immigrant-investor visa program. Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 374–75 (D.C. Cir. 2020); Compl. at 18. Currently, “investor applicants . . . must invest $1,050,000 to qualify
(continued . . .)
2
which “allows immigrant investors to satisfy the EB-5 employment-creation requirement by
investing through regional centers[,] [which] . . . are USCIS-approved business entities that
work in specified geographic areas to facilitate the pooling of EB-5 investments.” Id. Regional
centers then “direct the funds to job-creation projects.” Id. “After making the qualifying
investment, the foreign national must file with the USCIS a petition—titled Form I-526
Immigration Petition by Alien Investor (‘I-526 petition’)—to be classified as an immigrant
investor.” Cai v. Immigrant Inv. Program Off., No. 25-cv-1289 (RC), 2026 WL 713582, at *1
(D.D.C. Mar. 15, 2026) (citing Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 336 (D.C.
Cir. 2023)). The I-526 petition requires “[e]vidence that the capital [the petitioner] invested or
[is] actively in the process of investing, as well as any funds used to pay administrative costs and
fees, were obtained through lawful means.” U.S. Citizenship & Immigr. Servs., Instructions for
Immigrant Petition by Standalone Investor 9,
https://www.uscis.gov/sites/default/files/document/forms/i-526instr.pdf (last updated Jan. 20,
2025). However, “[i]f [the petitioner] fail[s] to submit required evidence, [the] USCIS may
reject or deny [the] petition for failure to submit requested evidence or supporting documents in
accordance with 8 CFR 103.2(b)(1) . . ..” Id. at 8.
On March 15, 2022, Congress enacted the EB-5 Reform and Integrity Act of 2022
(“RIA”), which amended several components of the EB-5 visa process, see Pub. L. No. 117-103,
div. BB, 136 Stat. 49, 1070 (codified at 8 U.S.C. § 1153(b)(5)). Relevant here, Section 103 of
the RIA “bars judicial review of agency determinations involving the EB-5 visa process if
(. . . continued)
for EB-5 visas generally, or $800,000 in targeted employment areas or statutorily defined infrastructure projects[.]” Delaware Valley, 106 F.4th at 1200 (citing 8 U.S.C. § 1153(b)(5)(C)).
3
administrative remedies have not been exhausted,” Cai, 2026 WL 713582 at *2, by specifically
providing that “no court shall have jurisdiction to review a determination under this paragraph
until . . . the alien investor has exhausted all administrative appeals[,]” 8 U.S.C.
§ 1153(b)(5)(P)(ii). A petitioner may administratively appeal an adverse USCIS determination
to the Administrative Appeals Office (“AAO”) by submitting a Form I-290B, identified as a
Notice of Appeal or Motion. U.S. Citizenship & Immigr. Servs., AAO Practice Manual § 3.7(b),
https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-officeaao/practice-manual/chapter-3-appeals (last updated Oct. 30, 2025). Importantly, however, the
Form I-290B can be used to either file an appeal to the AAO or to file a motion to reopen or
reconsider a visa application. Id. And, the petitioner “must clearly indicate if [she is] filing an
appeal or a motion” by checking the appropriate box on the Form I-290B. U.S. Citizenship &
Immigr. Servs., Instructions for Notice of Appeal or Motion 4,
https://www.uscis.gov/sites/default/files/document/forms/i-290binstr.pdf (last updated May 31,
2024).
B. Factual Background
Plaintiff Li Liu and her daughter, Plaintiff Lulu Liu, are “Chinese nationals, currently
residing in Beijing, China.” 4 Compl. ¶ 7. In September 2016, Plaintiff Lulu invested $500,000
in the New York Metropolitan Regional Center, LP II (the ‘NCE’), id. ¶ 23, and in November
2016, Plaintiff Li invested $500,000 in the NCE, id. ¶ 24. The plaintiffs made these investments
in the NCE, which was “provid[ing] equity capital . . . finance . . . [for] the development of the
New York Wheel Project in Staten Island,” id. ¶ 1, “for the purpose of making a qualifying
investment under 8 U.S.C. § 203(b)(5) (commonly referred to as the EB-5 . . . program . . . )[,]”
4
The plaintiffs refer to themselves as “Plaintiff Li” and “Plaintiff Lulu.” Compl. at 9. The Court will do the same.
4
id. ¶ 2. Plaintiffs Li and Lulu “filed Forms I-526, Immigrant Petitions by Alien Entrepreneur,
with Defendant USCIS on November 28, 2016, and September 28, 2016, respectively.” Id.
Eight years later, on August 28, 2024, the USCIS denied Plaintiff Li’s I-526 petition, id. ¶ 3, and
on September 26, 2024, the USCIS denied Plaintiff Lulu’s I-526 petition, id.
Plaintiff Li filed a Form I-290B with the USCIS’s AAO on September 26, 2024. Id. ¶ 3.
Although not a part of the record, Plaintiff Li’s Form I-290B appears to have indicated that she
was appealing the USCIS’ decision to the AAO, rather than moving to reopen or reconsider her
application. See Compl., Exhibit (“Ex.”) C (AAO Decision on Plaintiff Li), at 1–5, ECF No. 1-5
(analyzing and dismissing Plaintiff Li’s “appeal”). The AAO denied Plaintiff Li’s I-290B appeal
on May 6, 2025, “based on an alleged failure to prove the ‘path’ of [the] funds [that she invested
into the NCE] back to a ‘lawful source[.]’” Id. ¶¶ 4, 5; see generally id. Ex. C. (AAO Decision
on Plaintiff Li).
Plaintiff Lulu filed her Form I-290B with the USCIS’ AAO on October 25, 2024. Id. ¶ 3.
However, unlike Plaintiff Li, Plaintiff Lulu’s Form I-290B appears to have been a motion to
reopen or reconsider her application rather than an appeal. 5 See id. Ex. D (Ruling on Plaintiff
Lulu’s Motion), at 3–8, ECF No. 1-6 (analyzing and denying Plaintiff Lulu’s “motion to reopen
and reconsider the decision on the petition”). Plaintiff Lulu’s motion to reopen and reconsider
was denied because “[she] had not shown the lawful sourcing or path of her investment funds.”
Id. ¶ 31.
5
Plaintiff Lulu acknowledges that she “filed her I-290B with the Immigrant Investor Program Office, not the AAO as initially alleged in the complaint.” Pl.’s Opp’n at 2 n.1. The parties therefore seem to agree that Plaintiff Lulu did not file an appeal with the AAO.
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C. Procedural Background
The plaintiffs did not pursue further remedies with the USCIS and instead brought suit in
this Court, see Compl. at 2, seeking “a Declaratory Judgment finding that the defendants’ denials
of the I-526 petitions were erroneous, unlawful, not supported by substantial evidence and
arbitrary and capricious[, and also] an order reversing the denial of the petitions and requiring the
defendants to reopen and adjudicate the petitions on the merits[,]” id. at 22. The plaintiffs filed
their complaint on October 23, 2025. Compl. at 1. The defendants filed their motion to dismiss
Plaintiff Lulu’s claim pursuant to Federal Rule of Civil Procedure 12(b)(1) on January 23, 2026,
arguing that she “did not file an appeal with the AAO within 30 days of the I-290B Motion to
Reopen/Reconsider dismissal as instructed in the decision and thus did not exhaust all
administrative appeals[,]” and therefore, this Court lacks jurisdiction pursuant to the RIA’s
jurisdictional bar. Defs.’ Mot. at 4. Plaintiff Lulu filed her opposition to the defendants’ motion
to dismiss on February 6, 2026. Pls.’ Opp’n at 11. The defendants submitted their reply in
further support of their motion to dismiss on February 13, 2026. Defs.’ Reply at 6.
The defendants have not moved to dismiss Plaintiff Li’s claim. See id.
II. STANDARD OF REVIEW
A. Motions to Dismiss Under Rule 12(b)(1)
“Federal [district] courts are courts of limited jurisdiction[,]” Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377, (1994), and therefore, “[a] motion for dismissal under
[Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s
jurisdiction[,]’” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.)
(quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to
dismiss a claim if it “lack[s] . . . subject matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). And,
6
because “[i]t is to be presumed that a cause lies outside [the Court’s] limited jurisdiction,”
Kokkonen, 511 U.S. at 377, the plaintiff bears the burden of establishing by a preponderance of
the evidence that [this] court has subject matter jurisdiction, see Nurse v. Sec’y of Air Force, 231
F. Supp. 2d 323, 326 (D.D.C. 2002) (Walton, J.) (citations omitted).
In deciding a motion to dismiss based on lack of subject matter jurisdiction, the Court
“need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Ord. of
Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such
materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has
jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22
(D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249,
1253 (D.C. Cir. 2005). Additionally, the Court must “assume the truth of all material factual
allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the
benefit of all inferences that can be derived from the facts alleged[.]’” Am. Nat’l Ins. Co. v. Fed.
Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d
970, 972 (D.C. Cir. 2005)).
However, “the [p]laintiff’s factual allegations in the complaint . . . will bear closer
scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a
claim.” Grand Lodge, 185 F. Supp. 2d at 13–14 (alterations in original) (citation and internal
quotation marks omitted). And the Court “need not accept bare legal conclusions nor
unsupported inferences.” Campaign Legal Ctr. v. Fed. Election Comm’n, No. 22-cv-3319
(CRC), 2024 WL 4263853, at *5 (D.D.C. Sept. 23, 2024) (citing Browning v. Clinton, 292 F.3d
235, 242 (D.C. Cir. 2002)).
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III. ANALYSIS
The defendants move to dismiss Plaintiff Lulu’s claim pursuant to Federal Rule of Civil
Procedure 12(b)(1). Defs.’ Mot. at 1. The defendants argue that the RIA “strip[s] federal courts
of jurisdiction over EB-5 determinations until all administrative appeals have been exhausted[,]”
and that the Court therefore does not have jurisdiction over Plaintiff Lulu’s claim because she
“failed to appeal the [I-290B denial] to the AAO, which must hear appeals on EB-5
determinations.” Id. at 2 (citing 8 U.S.C. § 1153(b)(5)(P)(i)–(ii)). Plaintiff Lulu responds that
her claim should not be dismissed because (1) the applicable USCIS regulations do not require
exhaustion; (2) the 2022 RIA exhaustion requirements cannot be retroactively applied to her
2016 petition; and (3) even if the exhaustion requirement applies to her claim, an AAO appeal
would have been futile. See Pls.’ Opp’n at 3–11. The Court will address each of Plaintiff Lulu’s
arguments in turn, ultimately determining that, for the following reasons, it lacks subject matter
jurisdiction to grant Plaintiff Lulu her requested relief.
A. Whether Plaintiff Lulu Was Required to Exhaust Her Administrative Remedies
Plaintiff Lulu argues that the USCIS regulations “plainly specify that an appeal to the
AAO is available, but not mandatory.” Pls.’ Opp’n at 4. According to Plaintiff Lulu, the Court
should therefore “apply the default rule” purportedly established in Darby v. Cisneros, that “an
administrative appeal is not required for purposes of APA exhaustion[.]” Id. (citing 509 U.S.
137, 146 (1993)). In Darby, the Supreme Court considered “whether federal courts have the
authority to require that a plaintiff exhaust available administrative remedies before seeking
judicial review under the Administrative Procedure Act . . . where neither the statute nor agency
rules specifically mandate exhaustion as a prerequisite to judicial review.” 509 U.S. at 138. The
Supreme Court held that “where the APA applies, an appeal to [a] ‘superior agency authority’ is
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a prerequisite to judicial review only when expressly required by statute or when an agency rule
requires [that an] appeal [be taken] before review and the administrative action is made
inoperative pending that review.” Id. at 154 (emphasis omitted).
Here, the RIA, which the parties agree governs EB-5 visa adjudications, expressly
requires an appeal be taken to a superior agency authority, the AAO. See 8 U.S.C.
§ 1153(b)(5)(P)(ii) (“[N]o court shall have jurisdiction to review a determination under this
paragraph until . . . the alien investor has exhausted all administrative appeals.”). Therefore, “the
plain text of the jurisdictional bar resolves this dispute in [the d]efendant’s favor.” Cai, 2026
WL 713582 at *3. Plaintiff Lulu, however, seeks to have this Court ignore this express statutory
exhaustion requirement and instead focus on the USCIS’ regulations, which she alleges “specify
that an appeal to the AAO is available, but not mandatory.” Pls.’ Opp’n at 4. But, to the extent
that there is any conflict between the USCIS’ regulations and the RIA, the regulations must yield
to the statute. See Chrysler Corp. v. Brown, 441 U.S. 281, 303 (1979) (determining that agency
regulations must “conform with any procedural requirements imposed by Congress,” because
“agency discretion is limited . . . by substantive, statutory grants of authority”). The RIA
controls EB-5 visa determinations and therefore necessarily supersedes any agency rule or
regulation “out of harmony with the statute.” Manhattan Gen. Equip. Co. v. Comm’r of Internal
Revenue, 297 U.S. 129, 134 (1936). Because the RIA imposes an exhaustion requirement,
Plaintiff Lulu was required to exhaust her administrative remedies before filing this lawsuit.
B. Whether Applying the Exhaustion Provision Violates Anti-Retroactivity Principles
Plaintiff Lulu, who initially filed her I-526 petition in 2016, Compl. ¶ 2, argues that
requiring her to exhaust her administrative remedies based on the 2022 RIA would violate “antiretroactivity principles” that are “deeply rooted in Supreme Court jurisprudence[,]” Pls.’ Opp’n
9
at 6–7 (original modifications omitted). She argues that “the RIA itself nowhere states that its
new exhaustion requirement extends to EB-5 petitions filed prior to the RIA[’s enactment.]” Id.
at 6 (emphasis in original). The defendants disagree, arguing that “a plain language reading of
the statute is that the [exhaustion] provision applies to post-RIA determinations, rather than postRIA filings[,]” and applying the exhaustion bar “does not run counter to the long-standing
presumption against retroactivity” because it only “limits the jurisdiction over post-enactment
failures to exhaust[.]” Defs.’ Reply at 3–4.
The defendant is correct that the plain language of the RIA explicitly refers to judicial
review of USCIS determinations. 8 U.S.C. § 1153(b)(5)(P)(ii) (“[N]o court shall have
jurisdiction to review a determination under this paragraph until . . . the alien investor has
exhausted all administrative appeals.”) (emphasis added). And, other courts have also concluded
that the operative date is the determination date, not the filing petition date. See Liu v. Mullin,
No. 25-cv-2855 (JMC), 2026 WL 2185177, at *3 (D.D.C. July 29, 2026) (“The key date, then, is
the date of the agency’s ‘determination,’ not the date the investor filed the petition.”); Maharaj v.
Edlow, No. 25-cv-509 (JDB), 2026 WL 1362433, at *3 (D.D.C. May 15, 2026) (“[T]he relevant
date for measuring the prospective effect of the exhaustion provision is the agency determination
date—not the petition filing date, at which point no determination exists for the exhaustion
provision to retroactively impact.”); see also Cai, 2026 WL 713582 at *3 (“The Court agrees
with Defendants that application of the RIA’s jurisdictional bar here would not be impermissibly
retroactive.”). Applying the RIA to Plaintiff Lulu’s claim therefore does not constitute
retroactive application because the USCIS determination on Plaintiff Lulu’s Form I-290B
occurred on December 11, 2024—approximately two years and seven months after the statute
was enacted.
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Even if the exhaustion provision has some retroactive effect, it does not violate principles
of retroactivity established in Landgraf v. USI Film Products. See 511 U.S. 244, 274 (1994).
Plaintiff Lulu is correct that “the presumption against retroactive legislation is deeply rooted in
our jurisprudence, and embodies a legal doctrine centuries older than our Republic[,]” id. at 265,
and “congressional enactments and administrative rules will not be construed to have retroactive
effect unless their language requires this result[,]” Moore v. Agency for Int’l Dev., 994 F.2d 874,
878 (D.C. Cir. 1993). When determining if a statute has a retroactive effect, courts must
consider “whether it would impair rights a party possessed when [she] acted, increase a party’s
liability for past conduct, or impose new duties with respect to transactions already
completed . . . .” Landgraf, 511 U.S. at 280.
The RIA neither “impair[ed] rights [Plaintiff Lulu] possessed when [she] acted[,]” nor
“impose[d] new duties with respect to transactions already completed.” Id. “APA claims to
judicial review of agency action do not accrue until a plaintiff obtains a final agency
determination for the court to examine.” Maharaj, 2026 WL 1362433, at *2 (citing Corner Post,
Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 804 (2024); Hardin v. Jackson, 625
F.3d 739, 743 (D.C. Cir. 2010)). Here, Plaintiff Lulu did not receive a final agency
determination until January 13, 2025, when the window to appeal the I-290B denial (issued on
December 11, 2024) lapsed due to her failure to appeal the AAO’s decision. Defs.’ Mot. at 2.
Thus, the exhaustion requirement could not have impaired her right to judicial review because
that right had yet to exist. And, when the exhaustion requirement took effect, Plaintiff Lulu had
not yet sought judicial review of the USCIS’ determination, so the exhaustion requirement “did
not create a new obligation in respect to transactions or considerations already past.” Maharaj,
2026 WL 1362433, at *2 (internal quotation omitted). Applying the RIA exhaustion
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requirement, therefore, does not retroactively impair Plaintiff Lulu’s rights or impose new duties
upon completed transactions.
Additionally, the mandated exhaustion would not “increase [Plaintiff Lulu’s] liability for
past conduct[.]” Landgraf, 511 U.S. at 280. Before the RIA took effect, Plaintiff Lulu’s only
conduct was filing the original I-526 petition and the monetary investment. See Compl. at 9–11.
Every other action in this matter occurred after the RIA was enacted, including Plaintiff Lulu’s
failure to exhaust administrative remedies. See id.; Defs.’ Mot. at 2. As previously noted, over
two years elapsed between the RIA’s enactment and the I-290B denial, during which Plaintiff
Lulu “could have known what the law was and conformed [her] conduct accordingly.” Cai,
2026 WL 713582, at *4. Instead of bringing this lawsuit, Plaintiff Lulu “could have appealed
[the USCIS’s] unfavorable determinations to the AAO,” id., as the USCIS itself noted in its
denial of her I-290B motion, see Ruling on Plaintiff Lulu’s Motion at 1. Under these
circumstances, there is no barrier to applying the RIA’s jurisdictional bar to the plaintiff’s postenactment conduct because the statute imposed procedural rules for future conduct, not liability
for past conduct.
C. Whether Plaintiff Lulu Is Exempt from RIA’s Exhaustion Requirement Because
Her Appeal Would Have Been Futile
Plaintiff Lulu also argues that appealing the denial of her petition would have been futile
because “AAO reversal rates on these ‘source of funds’ issues are quite low.” Pls.’ Opp’n at 9.
The defendants argue in response that Plaintiff Lulu’s “conclusory claim of futility does not
salvage this jurisdictionally barred case” because courts cannot read futility exceptions into
statutory requirements. Defs.’ Reply at 3–4.
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“[M]andatory exhaustion statutes [like the RIA] . . . foreclose[] judicial discretion to
excuse the failure to exhaust, even under standard administrative-law exceptions such as
futility[.]” Fleming v. U.S. Dep’t of Agric., 987 F.3d 1093, 1098 (D.C. Cir. 2021) (internal
quotation marks and citations omitted). And, courts “will not read futility or other exceptions
into statutory exhaustion requirements where Congress has provided otherwise.” Booth v.
Churner, 532 U.S. 731, 741 n.6 (2001); see also Cai, 2026 WL 713582, at *5 (“[While] courts
may recognize a ‘futility exception’ to judge-made exhaustion doctrines, the Supreme Court has
instructed that courts ‘may not excuse a failure to exhaust’ when confronted with a statutory
exhaustion requirement.”) (quoting Ross v. Blake, 578 U.S. 632, 639 (2016)).
The RIA limits courts’ jurisdiction to review an EB-5 determination “until . . . the alien
investor has exhausted all administrative appeals[,]” 8 U.S.C. § 1153(b)(5)(P)(ii), and Plaintiff
Lulu did not do so. The Court therefore cannot “read [a] futility exception[] into statutory
exhaustion requirements where Congress has provided otherwise.” Booth, 532 U.S. at 741 n.6.
IV. CONCLUSION
For the foregoing reasons, the Court must grant the defendants’ motion to dismiss
Plaintiff Lulu’s claims.
SO ORDERED this 10th day of August, 2026. 6
REGGIE B. WALTON
United States District Judge
6
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
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