National Venture Capital Association v. Duke

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL VENTURE CAPITAL ASSOCIATION, et al., Plaintiffs, v. Civil Action No. 17-1912 (JEB) ELAINE DUKE, Acting Secretary, U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. MEMORANDUM OPINION Elections have consequences. But when it comes to federal agencies, the Administrative Procedure Act shapes the contours of those consequences. This case involves the Department of Homeland Security’s decision to delay the implementation of an Obama-era immigration rule, the International Entrepreneur Rule, 82 Fed. Reg. 5,238 (Jan. 17, 2017). The Rule would have allowed certain foreign entrepreneurs to obtain immigration “parole” — that is, to temporarily enter the United States despite lacking a visa or green card. It was finalized in the waning hours of the Obama administration and was set to take effect 180 days later, on July 17, 2017. On the eve of that date, however, the Department issued a new rule (“the Delay Rule”) delaying the effective date of the original one for another eight months, until March 14, 2018. The agency did so, however, without providing notice or soliciting comment from the public, as the APA generally requires. Plaintiffs brought suit, alleging that the agency lacked good cause to dispense with the APA’s strictures and that the Delay Rule was therefore invalid. Having now reviewed both sides’ Motions for Summary Judgment, the Court agrees and will vacate the Delay Rule. 1 I. Background The controversy boils down to two competing rules. The first would have allowed certain foreign entrepreneurs to temporarily enter the United States. The second, promulgated six months later, delayed that rule from taking effect. The Court discusses each in turn and then briefly recounts this suit’s procedural history. A. The International Entrepreneur Rule The Department of Homeland Security promulgated the International Entrepreneur Rule (“IE Final Rule”) to “encourage international entrepreneurs to create and develop start-up entities with high growth potential in the United States.” 82 Fed. Reg. at 5238. The Department believed that attracting foreign entrepreneurs would “benefit the U.S. economy through increased business activity, innovation, and dynamism.” International Entrepreneur Rule, 81 Fed. Reg. 60,129, 60,131 (Aug. 31, 2016) (Notice of Proposed Rulemaking). Before the issuance of the regulation, foreign entrepreneurs lacked a clear-cut avenue for entry into this country. Id. at 60,151-52 & n.52 (citing Nina Roberts, For Foreign Tech Entrepreneurs, Getting a Visa to Work in the U.S. is a Struggle, The Guardian (Sept. 14, 2014)). The United States had no dedicated visa category for foreign entrepreneurs, and other visa options were frequently unavailable to that group. Id. The executive branch, however, cannot unilaterally create a new visa category, see 8 U.S.C. § 1101(a)(15), so it turned to a more temporary solution for immigrant entrepreneurs: parole. See 82 Fed. Reg. at 5,244. “Parole” — the French source of which term derives from giving one’s word — allows a foreign national to be physically present in the United States for a specific, temporary period, ranging from days to years. See, e.g., Leng May Ma v. Barber, ...

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