UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RUCHI RAJESH GUPTE,
Plaintiff,
v. Case No. 1:26-cv-00445 (TNM)
MARKWAYNE MULLIN, et al.,
Defendants.
MEMORANDUM OPINION
Ruchi Rajesh Gupte applied for an immigrant investor visa under the EB-5 program. She
did not hear back for more than 19 months, so she sued several senior officials to compel them to
promptly adjudicate her petition. The problem with Gupte’s claims is that this Court lacks
subject matter jurisdiction over them, as dictated by the Immigration and Nationality Act.
Lacking jurisdiction over the case, the Court will dismiss it without addressing the merits.
I.
The EB-5 program “permits noncitizens to apply for permanent residence in the United
States by investing in approved commercial enterprises that are based on proposals for
promoting economic growth.” Liu v. SEC, 591 U.S. 71, 77 (2020) (cleaned up). Obtaining an
EB-5 visa requires the immigrant to “creat[e] full-time employment for not fewer than 10 United
States citizens, United States nationals, or aliens lawfully admitted for permanent residence or
other immigrants lawfully authorized to be employed in the United States.” 8 U.S.C.
§ 1153(b)(5)(A)(ii). To that end, the immigrant must invest at least $1,050,000 generally or
$800,000 “in a targeted employment area or in an infrastructure project.” Id. § 1153(b)(5)(C)(i)–
(ii).
The EB-5 process begins with a Form I-526E petition for classification as an immigrant
investor, which the immigrant submits to U.S. Citizenship and Immigration Services (“USCIS”).
See 8 C.F.R. § 204.6(a). Once USCIS approves that petition, the immigrant may apply for twoyear conditional lawful permanent residence through Form I-485. See 8 U.S.C. § 1186b(a)(1),
(b)(1); 8 C.F.R. § 216.1. At the end of that two-year period, the immigrant may finally apply for
unconditional permanent residence via Form I-829. See 8 U.S.C. § 1186b(c)(3)(B)(i)(II); 8
C.F.R. § 216.6(d)(1).
Gupte “is a national of India” who “seeks an EB-5 visa based on [her] qualifying
investment under the EB-5 program.” Pet., ECF No. 1, ¶ 10. She invested more than $800,000
“into New Commercial Enterprise, created to fund [a] development located in Philadelphia, PA.”
Id. ¶ 21. In June 2024, Gupte filed an I-526E petition “along with substantial documentation
relating to the Company and [its] lawful source and path of investment funds.” Id. ¶ 22.
More than 19 months passed without Gupte receiving a decision or “any meaningful
feedback” on her I-526E petition. Id. ¶ 29. Fed up with the delay, Gupte sued several senior
officials in the Department of Homeland Security (collectively, “the Department”). Id. ¶¶ 11–13.
Her claims under the Administrative Procedure Act and Mandamus Act seek to compel the
Department “to perform [its] non-discretionary duty and adjudicate the Petition.” Id. at 23; see
id. ¶¶ 35–100.
The Department moves to dismiss Gupte’s action for lack of subject matter jurisdiction
under Rule 12(b)(1). Mot. Dismiss, ECF No. 13, at 7. Gupte opposes the Department’s motion
to dismiss and cross-moves for summary judgment. Opp’n & Cross-Mot. Summ. J., ECF No.
14. The parties’ motions are ripe for this Court’s consideration.
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II.
“Federal courts are courts of limited jurisdiction,” and it is “presumed that a cause lies
outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). To survive a motion to dismiss under Rule 12(b)(1), “[t]he plaintiff bears the burden of
invoking the court’s subject matter jurisdiction.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir.
2015). In deciding a Rule 12(b)(1) motion, the Court “may consider materials outside the
pleadings” but must “accept all of the factual allegations in the complaint as true.” Jerome
Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C. Cir. 2005) (cleaned up). Although
the Court presumes that agency action is reviewable, that presumption is “overcome by clear and
convincing evidence of congressional intent to preclude judicial review.” Guerrero-Lasprilla v.
Barr, 589 U.S. 221, 229 (2020) (cleaned up). If the Court determines that it lacks jurisdiction, it
must dismiss the case. Fed. R. Civ. P. 12(h)(3).
For cases within the Court’s jurisdiction, “[s]ummary judgment serves as the mechanism
for deciding, as a matter of law, whether the agency action is . . . consistent with the APA
standard of review.” AID Atlanta, Inc. v. HHS, 340 F. Supp. 3d 1, 4 (D.D.C. 2018) (cleaned up).
To win summary judgment, a movant must establish that “there is no genuine dispute as to any
material fact and [that he] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III.
Gupte invokes the Administrative Procedure Act and the Mandamus Act. The APA
empowers courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5
U.S.C. § 706(1). The Mandamus Act confers jurisdiction over actions “to compel an officer or
employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28
U.S.C. § 1361. “[T]he standards for obtaining relief are essentially the same” under both
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statutes. See Vietnam Veterans of Am. v. Shinseki, 599 F.3d 654, 659 n.6 (D.C. Cir. 2010);
accord In re Core Commc’ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008).
Gupte’s claims falter at the outset because the Immigration and Nationality Act (“INA”)
strips the Court’s subject matter jurisdiction over them. The Court recently held as much in
another unreasonable delay case involving an I-526E petition. See Rayan v. Mullin, No. 1:26-CV-00824 (TNM), 2026 WL 2823582, at *1 (D.D.C. Sept. 21, 2026). The Court’s analysis here
tracks its reasoning there.
Two INA provisions remove the Court’s jurisdiction over this case. The first divests
jurisdiction over various immigration decisions, including “any judgment regarding the granting
of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” 8 U.S.C.
§ 1252(a)(2)(B)(i). More importantly here, the provision also reaches “any other decision or
action of the Attorney General or the Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the Attorney General or the Secretary of
Homeland Security, other than the granting of relief under section 1158(a) of this title.” Id.
§ 1252(a)(2)(B)(ii). With this “catchall,” Congress “insulated from judicial review” any action
“made discretionary by legislation” under Subchapter II of Chapter 12 of Title 8, 8 U.S.C.
§§ 1151–1381. See Kucana v. Holder, 558 U.S. 233, 246–47 (2010) (footnote omitted). That is
where the other provision comes into play: It declares that the Secretary of Homeland Security
“may process [I-526E] petitions in a manner and order established by the Secretary.” 8 U.S.C.
§ 1153(b)(5)(E)(ii)(II).
In tandem, these two provisions constitute “clear and convincing evidence of
congressional intent to preclude judicial review” of Gupte’s claims. See Guerrero-Lasprilla, 589
U.S. at 229 (cleaned up). “A statute affecting federal jurisdiction must be construed both with
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precision and with fidelity to the terms by which Congress has expressed its wishes.” Kucana,
558 U.S. at 252 (cleaned up); see also Lloyd v. Ingenuity Prep Pub. Charter Sch., 368 F. Supp.
3d 25, 27 (D.D.C. 2019) (“As in any statutory construction case, we start, of course, with the
statutory text, and proceed from the understanding that unless otherwise defined, statutory terms
are generally interpreted in accordance with their ordinary meaning.” (cleaned up)). Here, the
text supports only one conclusion: that the Court lacks subject matter jurisdiction over Gupte’s
unreasonable delay claims about her I-526E petition.
Recall first the catchall, which strips jurisdiction over “any other decision or action of the
Attorney General or the Secretary of Homeland Security the authority for which is specified
under this subchapter to be in [their] discretion.” 8 U.S.C. § 1252(a)(2)(B)(ii). As the Supreme
Court “has repeatedly explained, the word ‘any’ has an expansive meaning.” Patel v. Garland,
596 U.S. 328, 338 (2022) (cleaned up).
In its breadth, the catchall embraces the provision on I-526E petitions—which, recall,
states that the Secretary of Homeland Security “may process petitions in a manner and order
established” by him. 8 U.S.C. § 1153(b)(5)(E)(ii)(II). That provision is a plain grant of
discretion. See Bouarfa v. Mayorkas, 604 U.S. 6, 13–14 (2024) (“As this Court has repeatedly
observed, the word ‘may’ clearly connotes discretion.” (cleaned up)). And the Secretary’s
discretion extends to the “manner and order” in which to “process [I-526E] petitions.” 8 U.S.C.
§ 1153(b)(5)(E)(ii)(II). That language covers Gupte’s unreasonable delay claims.
In short, two INA provisions work together to strip this Court’s jurisdiction over Gupte’s
action. Although no circuit has ruled on this jurisdictional issue, multiple circuits have held that
the INA precludes jurisdiction over unreasonable delay suits targeting I-485 applications, step
two in the EB-5 process. See Kanapuram v. Dir., USCIS, 131 F.4th 1302, 1306–07 (11th Cir.
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2025) (collecting cases); see also, e.g., Cheejati v. Blinken, 106 F.4th 388, 394 (5th Cir. 2024)
(“Section 1255(a) expressly leaves not only the ultimate decision to adjust an applicant’s
immigration status but also actions taken in the course of the decision-making process—
including the pace at which that process is undertaken—to the discretion of the Attorney
General . . . .”). The relevant companion provision there states that an immigrant’s permanent
residence status “may be adjusted by the Attorney General, in his discretion and under such
regulations as he may prescribe.” 8 U.S.C. § 1255(a). The Court finds these appellate opinions
instructive; if anything, the INA’s reference here to the “manner and order” of processing I-526E
petitions is an even plainer grant of discretion over the pace of adjudication. See 8 U.S.C.
§ 1153(b)(5)(E)(ii)(II); see also Zhu v. Gonzales, 411 F.3d 292, 294–95 (D.C. Cir. 2005)
(holding “that a decision may be ‘specified . . . to be in the discretion of the Attorney General’
even if the grant of authority to make that decision does not use the word ‘discretion’” (quoting 8
U.S.C. § 1252(a)(2)(B)(ii))).
In sum, this Court concludes that it lacks jurisdiction over Gupte’s suit. That holding
results from “the text and context” of § 1252(a)(2)(B)(ii)—“which is, after all, a jurisdictionstripping statute”—paired with the provision that grants the Department discretion in processing
I-526E petitions. See Patel, 596 U.S. at 347. “The plain meaning of th[ose] provision[s], not
any interpretative presumption, drives [the Court’s] conclusion today.” See id.
To contest this conclusion, Gupte advances the same arguments that the plaintiff raised in
Rayan. See Rayan, 2026 WL 2823582, at *5. The Court rejects them again.
Consider first the EB-5 Reform and Integrity Act of 2022, which directs USCIS to
“complete a study of fees charged in the administration of the [EB-5] program.” Pub. L. No.
117-103, § 106(a), 136 Stat. 49, 1103–04 (Mar. 15, 2022). The Act also instructs USCIS to set
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fees “at a level sufficient to,” among other things, “attain[] the goal of completing adjudications,
on average, not later than” 240 days after receiving an I-526E petition. Id. at 1104. As Gupte
sees it, this “specific processing time goal[]” is a “mandate” that overrides the Department’s
discretion. Opp’n & Cross-Mot. Summ. J. at 2.
That argument does not work. The congressional directive is about fees, and its
processing “goal” speaks only to averages, not any particular adjudication. This is not enough to
overcome the INA’s clear grants of discretion, let alone to impose an enforceable deadline for
adjudicating Gupte’s I-526E petition. See Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330,
344 (D.C. Cir. 2023) (concluding that similar language was “insufficient to set a deadline”).
Gupte also maintains that the Department’s “failure to act is not a discretionary ‘decision
or action’ within the meaning of the statute, and [the Department] therefore cannot rely on
§ 1252(a)(2)(B)(ii) to avoid review of [its] delay.” Opp’n & Cross-Mot. Summ. J. at 3. The text
foils that argument. Once again, the catchall reaches “any other decision or action” that the
relevant INA subchapter makes discretionary. See 8 U.S.C. § 1252(a)(2)(B)(ii). That language
embraces the process of adjudicating visas—not just the final decision—especially since the
catchall’s predecessor already covers “any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” See id. § 1252(a)(2)(B)(i). For
confirmation, look one last time to § 1153(b)(5)(E)(ii)(II), which confers discretion over the
“manner and order” in which to “process [I-526E] petitions.” Id. § 1153(b)(5)(E)(ii)(II). That
language includes the pace of adjudication, and it strips the Court’s jurisdiction over Gupte’s
suit.
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IV.
When jurisdiction is absent, “the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)). 1 This Court lacks subject
matter jurisdiction over Gupte’s claims of unreasonable delay in adjudicating her I-526E
petition. It thus will dismiss Gupte’s case for lack of jurisdiction and deny her cross-motion for
summary judgment. A separate Order will issue today.
2026.09.29
14:43:04 -04'00'
Dated: September 29, 2026 TREVOR N. McFADDEN, U.S.D.J.
1
The Court thus does not address the Department’s Rule 12(b)(6) argument that Gupte fails to state a plausible claim of unreasonable delay. See Mot. Dismiss at 7.
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