EB5 INVESTORS M AGAZINE
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calendar or individual hearing date for filing relief
applications. The judge may also set a merit a hearing
to determine eligibility for relief. While DHS bears the
burden of establishing removability, once it has been
established, the burden shifts to the respondent to
establish eligibility for relief from removal.
WHO IS REMOVABLE?
In general, the grounds of removability are found
in INA 237, which is titled “Deportable A liens,”
notwithstanding the fact that the terms “deport,”
deportable” and “deportability” now are universally
r e f e r r e d t o a s “ r e m o v e ,” “ r e m o v a b l e ” a n d
“removability.” Any noncitizen who was inadmissible
(a different legal concept from removability) at the
time of entry or adjustment of status, or who violates
status, is removable. This is also true of a noncitizen
who has committed marriage fraud, was convicted
of a certain crime or crimes (including controlled
substance violations), failed to register a change of
address, falsified documents, falsely claimed to be a U.S.
citizen, is a security threat, becomes a public charge
under certain circumstances, or who unlawfully votes.
Each of these removability sections could apply to
any noncitizen, including an EB-5 investor. 2 DHS
may become aware that a noncitizen, whether an
unlawful entrant, a current/former non-immigrant or
an immigrant, is removable through many different
means, including: a denied application for a change
or extension of non-immigrant status; a denied
naturalization application; a notification from a
local law enforcement agency that it has arrested a
noncitizen; that the noncitizen has completed a term
of incarceration for criminal activity and is about to
be released from custody; an ICE or CBP interdiction at
or near the border; a CBP inspection at a port of entry;
or, most relevantly for EB-5 investors, a denied I-829
petition to remove conditions.
ISSUES SPECIFIC TO EB-5 INVESTORS
The most likely reason an EB-5 investor would end
up in removal proceedings, if ever, is because the
I-829 was never filed, was late, or was denied by
USCIS. Although there are no available statistics,
there is nothing to suggest that EB-5 investors are at
a high rate committing serious crimes in the United
States or are unlawfully voting, becoming public
charges or threatening national security. Therefore,
it is reasonable to assume that most removable EB-5
investors were placed into proceedings by USCIS’
issui ng a n NTA . Pract it ioners should pay close
attention to the NTA because a flaw in proper service,
preparation, or filing of the charging document could
be grounds to terminate removal proceedings. Since
most NTAs are issued by ICE or CBP, USCIS adjudicators
often do not have enough experience and training to
properly prepare and file one.
INA 237(a)(1)(D) is the charge most likely to appear on
an EB-5 investor’s NTA, but the reasons why the I-829
was denied in the first place could vary depending
on the situation. Most I-829s are denied because the
investor did not sustain his or her investment in the
new commercial enterprise, or the new commercial
enterprise did not create the requisite number of full-
time positions for qualified U.S. workers. The reasons
why either of those scenarios occurred could have been
the fault of the investor himself or herself in a direct
EB-5 case or the fault of a regional center, developer or
job-creating entity in a regional center EB-5 case.
Whatever the denial reasoning may be, the NTA will
allege only that the EB-5 investor is not a U.S. citizen,
that his or her I-829 was denied by USCIS, and it will
charge removability under INA 237(a)(1)(D). Beyond
that, there will not be any information available to the
immigration judge or to the DHS attorney as to what
happened or why. Therein lies the opportunity for a
well-prepared immigration attorney to advocate and
educate on behalf of the client/respondent.