Earlier this week, the Department of Homeland Security submitted a notice to the court in Behring Regional Center v. Wolf that Secretary Alejandro Mayorkas had ratified the Final Rule, EB-5 Immigrant Investor Program Modernization. DHS also submitted its supplemental brief in the case noting, “Given the ratification of the rule at issue here by Secretary Mayorkas, it is no longer necessary for this Court to address the propriety of the appointment of Mr. McAleenan or the de facto officer doctrine.”
The plaintiff in the case has asserted the EB-5 regulations finalized in November 2019 are invalid because the then-relevant leadership at the Department of Homeland Security was not properly appointed. The presiding judge in the case has issued an order confirming receipt of the notice of ratification and has requested the plaintiffs to respond.
We will continue to keep the industry updated on any new developments in this important case.
I am affirming and ratifying a prior action by Acting Secretary Kevin McAleenan, out of an abundance of caution, because of a Government Accountability Office (GAO) opinion, see B. 331650 (Comp. Gen. Aug. 14, 2020), and recent actions filed in federal court alleging that Mr. McAleenan’s appointment as Acting Secretary of Homeland Security was not valid. See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 920 F.3d 1 (D.C. Cir. 2019) (“We have repeatedly held that a properly appointed official’s ratification of an allegedly improper official’s prior action … resolves the claim on the merits by remedy[ing] the defect (if any) from the initial appointment”) (quotation marks omitted) (second alteration in original).
I have full and complete knowledge of the following action taken by Acting Secretary McAleenan:
- Final Rule, EB-5 Immigrant Investor Program Modernization, 84 Fed. Reg. 35,750 (July 24, 2019) (the “EB-5 Final Rule”).
Pursuant to my authority as Secretary of Homeland Security, and based on my review of the EB-5 Final Rule, I hereby make a detached and considered affirmation and ratification of the EB-5 Final Rule. ”