Breaking: DHS Files Unopposed Motion to Dismiss Behring Lawsuit Appeal

01.05.22 | Government Affairs

On January 5, 2022, the Department of Homeland Security (DHS) filed an unopposed motion to dismiss its appeal to the Behring Regional Center lawsuit. The appeal was filled in August 2021 by Alejandro N. Mayorkas, Secretary of Homeland Security; Tracy Renaud, Acting Director, U.S. Citizenship and Immigration Services; Edie Pearson, USCIS Policy Branch Chief of the Immigrant Investor Program Office.

IIUSA will ensure the EB-5 industry is updated on any new developments in this case as we continue our larger work towards a long-term reauthorization of the EB-5 Program. Should you have any questions please email

The Background

In its ruling in June of 2021 Behring Regional Center, LLC v. Chad Wolf (3:20-cv-09263-JSC) the U.S. Northern District Court of California vacated the November 2019 EB-5 Modernization Regulations (the “Regulations”). The court ruled that former acting DHS Secretary Kevin McAleenan was not properly serving in his position under the Federal Vacancies Reform Act when he promulgated the EB-5 Modernization Final Rule and the EB-5 regulations that took effect in November 2019 must be set aside. The court also ruled that the ratification of the EB-5 rule by current DHS Secretary Mayorkas in March of this year did not cure the defect arising from McAleenan’s improper appointment.


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