United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 4, 2020 Decided August 21, 2020 No. 19-5025 MIRROR LAKE VILLAGE, LLC, ET AL., APPELLANTS v. CHAD F. WOLF, ACTING SECRETARY , U.S. DEPARTMENT OF HOMELAND SECURITY, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:16-cv-01955) H. Ronald Klasko argued the cause and filed the briefs for appellants. Joshua S. Press, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was Glenn M. Girdharry, Assistant Director. 2 Before: HENDERSON and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.* Opinion for the Court filed by Circuit Judge GARLAND. Concurring opinion filed by Circuit Judge HENDERSON. GARLAND, Circuit Judge: The EB-5 program allots visas to immigrants who have “invested . . . 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. 8 U.S.C. § 1153(b)(5)(A)(i)-(ii). The plaintiffs in this case are Mirror Lake Village, LLC, a new commercial enterprise set to construct and operate a senior living facility in rural Washington, and five foreign nationals who each contributed $500,000 to Mirror Lake. The foreign nationals sought to obtain lawful permanent resident status under the EB-5 immigrant-investor program. The U.S. Citizenship and Immigration Services (USCIS) denied their EB-5 visa petitions on the stated ground that none had made a qualifying investment. The plaintiffs contend that the denials were arbitrary and capricious. Because USCIS failed to offer a reasoned explanation for its denials, we agree. * The late Senior Circuit Judge Stephen F. Williams was a member of the panel at the time the case was argued and participated in its consideration before his death on August 7, 2020. Because he died before this opinion’s issuance, his vote was not counted. See Yovino v. Rizo, 139 S. Ct. 706, 710 (2019). Judges Henderson and Garland have acted as a quorum with respect to this opinion and judgment. See 28 U.S.C. § 46(d). . -3- I The EB-5 program, so-named because it is the fifth employment-based visa category available to foreign nationals, is part of the Immigration and Nationality Act. See 8 U.S.C. §§ 1101 et seq.; id. § 1153(b)(5). As quoted above, it allots visas to immigrants who have “invested . . . 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. § 1153(b)(5)(A)(i)- (ii). At the relevant time here, an immigrant investing in an enterprise located in a rural area had to contribute at least $500,000 to qualify. Id. § 1153(b)(5)(B)(ii); EB-5 Immigrant Investor Program Modernization, 84 Fed. Reg. 35,750, 35,806 n.149 (July 24, 2019). Although the statute does not define the term “invest,” the Department of Homeland Security (DHS) has defined it by regulation as “to contribute capital.” 8 C.F.R. § 204.6(e). According to DHS, a “note, bond, convertible debt, obligation, or ...
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