It may be a total coincidence, but the magistrate judge (a civil servant) who last year trashed the EB-5 reforms backed by both the Obama and the Trump administrations has just been nominated to the U.S. District Court in California and her nomination has been sent to the Senate floor by the Senate Judiciary Committee.
I see it as just another quiet symbol of the Biden administration’s overly tolerant view of problems in the immigration field.
A DHS-recognized middleman entity in the EB-5 business, Behring Regional Center, went to the federal courts in an attempt to overturn the Obama/Trump regulations meant to fix previous EB-5 abuses, such as the small size of the initial investments and the laxity with which private interests could define the areas of high unemployment for these investments.
The case was turned over to a magistrate judge by a federal district court judge.
Behring won the case before Jacqueline Scott Corley, the magistrate judge who ruled that the acting secretary of Homeland Security — one of several in the Trump years — was not legally in office when the much-needed new regulations were put in place.
At first, the Biden administration did the right thing and appealed to the Ninth Circuit.
Then on January 6 it surrendered and withdrew its appeal of Judge Corley’s decision.
Meanwhile, on January 13 her nomination to a full judge’s position in the courts moved to the Senate floor.
Back in June 2021, Congress refused to extend the life of the main part of the EB-5 program, the pooling of alien funds by the regional centers, which got the program in trouble in the first place, but that may be changed in the months to come.
If it is, thanks to separate decisions by Congress and Judge Corley, the bad old days of EB-5 will be with us again. The initial investment that an alien needs to buy a fistful of visas for his or her family will drop from the reform level of $900,000 down to $500,000 and the regional centers can, once again, gerrymander the “depressed areas” in which the EB-5 investments can be made.
My favorite examples of gerrymandering include one that meandered through literally hundreds of miles of Texas and another that started with a building on Wall Street, crossed the East River, and then attached itself to a distant housing project in Brooklyn with high unemployment. To go from one part of the “targeted employment district” without moving through other areas you would have to hire a boat. Both of these districts were approved, first by the state governments and then by DHS.
The lengthy Law360 report on her nomination did not mention her EB-5 decision, and I have seen nothing elsewhere on this connection, or coincidence. The report, oddly, called her appointment to the bench a part of the Biden administration’s efforts to “diversify” the bench. How appointing yet another Harvard Law grad to the bench will help diversify it was not clear to me.