Sun v. Edlow et al

i
IN THE UN1TED STATES DISTRICT COURT
•- FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ANRAN SUN, 	§
§
§
§
Plaintiff,
V.
JOSESPH B. EDLOW, in his official
capacity as Director of the U.S.
Citizenship and Immigration Services,
et. al.,
Defendants.
§ 	Civil Action No. H-26-2041
§
§
§
§
§
§
§
ORDER
Pending before the Court is Defendants' 	Motion to Dismiss, 	or in the
Alternative Motion for Summary Judgment (Document No. 8). Having considered
the motion, submissions, and applicable law, the Court finds that the pending motion
should be granted.
I. BACKGROUND
This matter arises from an immigration dispute. On February 27, 2024,
Plaintiff Anran Sun ("Sun"), a Chinese national, filed an I-526E Petition and 1-485
Petition with the U.S. 	Citizenship and Immigration Services ("USCIS"). 1 Sun
contends that USCIS has engaged in unnecessary delay by failing to adjudicate her
immigration petitions in the two-years since she filed them, causing Sun to incur
1 See Plaintiff's Complaint, Document No 1 at 1.
1
United States District Court
Southern District of Texas
ENTERED
June 30, 2026
Nathan Ochsner, Clerk
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 1 of 11

significant damages. Sun notes for the Court that "[o]ver 27 months have now
elapsed since the filing of the I-526E Petition, and no action has been taken on this
petition by any Defendant to date." 2 In response, the Government contends that the
aforementioned immigration petitions are currently under review, and that Plaintiff
can identify no mandatory duty requiring USCIS to adjudicate the applications
within a specified time frame.
Based on the foregoing, Sun filed suit on March 13, 2026, against Defendants
Joseph B. Edlow in his official capacity as Director of the U.S. Citizenship and
Immigration Services, Alissa Emmel in her official capacity as 	Chief of the
Immigrant Investor Program Office, and Carrie Selby in her official capacity as
Acting 	Associate 	Director 	of 	Service· 	Center 	Operations 	(collectively 	"the
Government"). 3 On May 22; 2026, the Government moved to .dismiss this case
pursuant to Federal Rules of Civil Procedure 12(b)(l), 12(b)(6), and 56(a). 4
2 Plaintiff's Opposition to Defendant's Motion to Dismiss, Document No. 9 at 2
(emphasis removed).
3 See Plaintiff's Complaint, Document No. 1 at 1-20.
4 See Defendants' Motion to Dismiss, or in the Alternative Motion for Summary
Judgment, Document No. 8 at 1-19.
2
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 2 of 11

II. STANDARD OF REVIEW
A. FRCP 12(b)(J)
A court may dismiss an action for lack of subject-matter jurisdiction under
Federal Rule of Civil Procedure 12(b)( 1). Once a defendant raises lack of subject
matter jurisdiction in a motion to dismiss pursuant to Rule 12(b)( 1), the plaintiff
bears the burden of establishing that the Court has jurisdiction over the dispute. See
Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375,377 (1994); Menchaca
v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Where, as here, a
defendant supports its argument for lack of jurisdiction with evidence, "no
presumptive truthfulness attaches to plaintiff's allegations, and the existence of
disputed material facts will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims." Williams v. Tucker, 645 F.2d 404, 412-13 (5th
Cir. 1981).
B. FRCP 12(b)(6)
Rule 12(b)( 6) allows dismissal if a plaintiff fails "to state a claim upon
which relief can be granted.'; Fed. R. Civ. P. 12(b)(6). Under Rule 8(a)(2), a
pleading must contain "a short and plain statem~nt of the claim showing that the
pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although "the pleading
standard Rule 8 announces does not require 'detailed factual allegations,' ... it
demands more than ... 'labels and conclusions."' Ashcroft v. Iqbal, 556 U.S. 662,
3
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 3 of 11

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A]
formulaic recitation of the elements of a cause of action will not do." Id. ( quoting
Twombly, 550 U.S. at 555).
In deciding a Rule 12(6)(6) motion to dismiss for failure to state a claim,
"[t]he 'court accepts all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff."' In re Katrina Canal Breeches Litig., 495 F.3d 191,205
(5th Cir. 2007) (quoting Martin K Eby Constr. Co. v. Dall. Area Rapid Transit,
369 F.3d 464, 467 (5th Cir. 2004)). To survive the motion, a plaintiff must plead
"enough facts to state a claim to relief that is plausible on its face." Twombly, 550
U.S. at 570. "Conversely, 'when the allegations in a complaint, however true,
could not raise a claim of entitlement to relief, this basic deficiency should ... be
exposed at the point of minimum expenditure of time and money by the parties and
the court."' Cuvillier v. Taylor, 503 F.3d 397,401 (5th Cir. 2007) (quoting
Twombly, 550 U.S. at 558).
C. FRCP 56(a)
Summary judgment is proper when "there· is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(a). The Court must view the evidence in a light most favorable to the
nonmovant. Coleman v. Haus. lndep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).
Initially, the movant bears the burden of presenting the basis for the motion and the
4
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 4 of 11

elements of the causes of action upon which the nonmovant will be unable to
establish a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The burden then shifts to the nonmovant to come forward with specific
facts showing there is a genuine dispute for trial. 	See Fed. 	R. 	Civ. 	P. 	56(c)~
MatsushitaElec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "A
dispute about a material fact is 'genuine' if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus.,
Inc., 5 F.3d 955, 956 (5th Cir. 1993) (citation omitted).
But the nonmoving party's bare allegations, standing alone, are insufficient to
create a material dispute of fact and defeat a motion for summary. If a reasonable
jury could not return a verdict for the nonmoving party, then summary judgment is
appropriate. Liberty Lobby, Inc., 477 U.S. at 248. The nonmovant's burden cannot
be satisfied by "conclusory allegations, unsubstantiated assertions, 	or 	'only a
scintilla of evidence."' Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343
(5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994)). Uncorroborated self-serving testimony cannot prevent summary judgment,
especially 	if the 	overwhelming 	documentary 	evidence 	supports 	the 	opposite
scenario. Vais Arms, Inc. v. Vais, 383 F.3d 287, 294 (5th Cir. 2004). Furthermore, it
is not the function of the Court to search the record on the nonmovant' s behalf for
evidence which may raise a fact issue. Topalian v. Ehrman, 954 F.2d 1125, 1137
5
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 5 of 11

n.30 (5th Cir. 	1992). Therefore, "[a]lthough we consider the evidence and all
reasonable inferences to be drawn therefrom in the light most favorable to the
nonmovant, the nonmoving party may not rest on the mere allegations or denials of
its pleadings but must respond by setting forth specific facts indicating a genuine
issue for trial." Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000).
III. LAW & ANALYSIS
The Government moves to dismiss and, in the alternative, for summary
judgment, primarily contending that it is under no obligation to adjudicate Sun's
immigration petition within any particular timeframe. In response, Sun contends that
she meets the criteria to be considered for permanent lawful residence status under
the USCIS Immigrant Investor Program and that the processing time for USCIS to
consider her application. is taking longer than the standard processing time. The
Court will first consider the factual background of Sun's dispute, before considering
the 	Government's 	statutory 	obligations 	regarding 	the 	adjudication 	of 	Sun's
immigration petitions.
A. Legal and Factual Background
As part of the Immigration Act of 1990, Congress established the EB-5
Immigrant Investor Program. See 8 U.S.C. § 1153(b)(5). Under the EB-5 program's
statutory scheme, lawful permanent residence status may become available to
foreign nationals who invest over one million dollars in a new commercial enterprise
6
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 6 of 11

that directly or indirectly creates at least ten full-time jobs in the United States. See
8 U.S.C. 	§ 1153(b)(5)(A). 	If a foreign national invests in a new commercial
enterprise located in certain rural areas and areas 	of high unemployment, the
mm1mum 	required 	investment 	is 	reduced 	to 	$800,000.00. 	See 	8 	U.S.C. 	§
l 153(b)(5)(B). To seekEB-5 classification, an immigrant investor must first petition
their status as an eligible foreign investor to USCIS using either Form 1-526 or Form
I-526E. If the petitioner is eligible and currently in the United States, and a visa is
available, then USCIS "may" adjust their status and grant them permanent residence.
See 8 U.S.C. § 1255(a).
Here, on February 27, 2024, Sun filed Form I-526E, an immigrant petition
reserved for foreign investors. Sun contends that she invested $800,000.00 in a new
commercial enterprise, a company called FBRG Hospitality Developers LP. 5 Sun
contends that her company is a project categorized by USCIS as a rural project
eligible under the EB-5 Immigrant Investor Program. 6 On March 13, 2026, two years
after submitting her I-526E Petition with USCIS, Sun filed suit in this Court alleging
unreasonable agency delay under the Administrative Procedures Act ("APA").
Having considered the legal and factual background of this case, the Court will now
5 Plaintiff's Opposition to Defendant's Motion to Dismiss, Document No. 9 at 2.
6 Id.
7
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 7 of 11

consider 	the 	petition 	Sun 	contends 	should 	be 	reviewed by 	the 	Government
imminently.
B. Sun's I--526E Petition
The Government primarily contends that Sun fails to identify a federal statute
or binding regulation that requires USCIS to adjudicate Sun's I-526E application
within a specified time frame. The Government also notes for the Court a plethora
of caselaw supporting the notion that USCIS is not subject to any rigid temporal
requirements to adjudicate an 1-526 petition. See Sidhu v. Emmel, Civil Action No.
23-2963, 2024 WL 3066052, at *3 (D.D.C. June 20, 2024) ("[i]t does not appear that
1-526 petitions have a statutory time frame for adjudication[.]") (citing Shihuan
Cheng v. Baran, 2017 WL 3326451, at *4 (C.D. Cal. Aug. 3, 2017); see also
Chuttani v. United States Citizenship & Immigration Servs., Civil Action No. 3:19-
cv-02955-X, 2020 WL 7225995 at *3 (N.D. Tex. Dec. 8, 2020) ("[a]s far as the
Court can tell, Congress has not affirmatively provided a time limit by which
Citizenship and Immigration Services must adjudicate any given immigration
benefit petition"). The Government contends that absent an identification of a clear
requirement placed upon USCIS to adjudicate an 1-526 application within a specified
time frame, Sun's claim for agency delays under§ 706(1) of the APA, the Federal
Mandamus Act, ·and 5 U.S.C. § 555(b) fail.
8
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 8 of 11

In response, Sun does not contest that there exists no statutory requirement to
adjudicate her I-526E Petition within a certain timeframe. Rather, Sun contends that
the delay in the adjudication of her l-526E Petition is unreasonable as a matter of
law. Sun further contends that a material factual dispute exists 	as to whether
Defendants acted arbitrarily by having not yet ruled on her petition. Turning to the·
delay in this case, the Government notes for the Court that over eighty percent of I-
526E applications are adjudicated within 29.5 months, and that Sun's application
was pending for 24 months prior to the filing of this lawsuit. 7 In response, Sun argues
that: (1) USCIS' s standard processing time has increased by 5 month since the filing
of this lawsuit; 8 and (2) the Government is in violation of the Reform and Integrity
Act 	of 2022 which states that USCIS 	should have "the 	goal 	of completing
adjudications, on average ... not later than 120 days." 8 U.S.C. § l 153(b)(5).
The Court has independently reviewed Sun's filings and the applicable law in
this case and cannot identify any language in any statute, case, or regulation that
places a consequence on the Government for failing to meet the goal of adjudicating •
an 1-526 petition within 120 days. The Court also notes Sun's own concession in her
7 See Defendants' Motion to Dismiss, or in the Alternative Motion for Summary
Judgment, Document No. 8 at 15.
8 The Court has considered Sun's argument that USCIS's standard processing time
has moderately increased since the inception of this lawsuit, and notes that Sun cites no
authority to stand for the proposition that a federal agency violates the APA due to a
moderate increase in application processing time.
9
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 9 of 11

response to 	the 	Government's 	pending 	dispositive 	motion, 	noting that these
"timeframes are framed as goals rather than deadlines." 9
Having considered the foregoing and the Fifth Circuit's clear guidance that "a
court's authority to compel agency action is limited to instances where an agency
ignored 	a 	specific 	unequivocal 	command 	in 	a 	federal 	statute 	or 	binding
regulation[,]" 10 the Court finds no such command in any statute, regulation, or
binding case upon this Court requiring USCIS to adjudicate Sun's I-526E Petition
within any certain timeframe. 	Thus, the Court declines to 	compel USCIS to
adjudicate Sun's I-526 application and finds that the Government's pending motion
to dismiss should be granted. 11
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Defendants' Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment (Document No. 8) is GRANTED. The Court further
9 Plaintiff's Opposition to Defendant's Motion to Dismiss, Document No.9at11.
10 Cheejati v. Blinken, 106 F.4th 388, 396 (5th Cir. 2024). See also Mexichem
Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) ("[a]bsent a precise
statutory timetable or other factors counseling expeditious action, an agency's control over
the timetable ofits proceedings is entitled to considerable deference[.]") (citation omitted).
11 Considering the Court's findings herein, the Court declines to consider the
Government's arguments related to Sun's I-485 Petition.
10
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 10 of 11

ORDERS that Plaintiff Anran Sun's claims against Defendants in this matter
are DISMISSED.
SIGNED at Houston, Texas, on this _3_9day of June, 2026.
DAVID HITTNER
United States District Judge
11
Case 4:26-cv-02041 Document 11 Filed 06/30/26 in TXSD Page 11 of 11