U.S. Citizenship and Immigration Services

In Re: 2012530

Appeal of Immigrant Investor Program Office Decision

REGIONAL CENTER DESIGNATION

Non-Precedent Decision of the Administrative Appeals Office

Date: APR. 8, 2020

The Appellant, a regional center notified that its authorization to participate in the EB-5 program has been terminated, appeals the termination of its designation. See Section 610 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-395, 106 Stat. 1828 (1992), as amended (Appropriations Act); 8 C.F.R. § 204.6(m)(6)(v).

The Chief of the Immigrant Investor Program Office (IPO) issued a notice of intent to terminate (NOIT), and subsequently terminated the Appellant's designation, concluding that it no longer served the purpose of promoting economic growth. The Chief certified this decision for our review and we remanded the matter, instructing the Chief to issue a new decision balancing all of the positive and negative equities in this case to determine if termination was warranted. 1 The Chief subsequently requested additional information from the Appellant, and again issued a decision terminating its designation.

On appeal, the Appellant submits a brief2 and argues that the Chief failed to address the record in its entirety and improperly weighed the positive and negative factors in her decision. The Appellant requests that we reverse this termination and reinstate its designation, or remand to the Chief as appropriate.

Where USCIS properly issues a NOIT, based on a determination that the regional center no longer serves the purpose of promoting economic growth, the regional center bears the burden of rebutting the grounds alleged in the NOIT, i.e., showing by a preponderance of the evidence that it continues to serve the purpose of promoting economic growth. 8 C.F.R. § 204.6(m)(6). Upon de nova review, we will dismiss the appeal.

I. LAW

In 1992, Congress enacted the Immigrant Investor Program which set aside visas for foreign investors who invest in a new commercial enterprise associated with a regional center designated by USCIS. To obtain USCIS designation for participation in the Immigrant Investor Program, a regional center

1 See Matter of S-D-R-C-, ID# 13768 (AAO Mar. 15, 2017). 2 While the Applicant's June 2018 cover letter accompanying the instant Form I-290B, Notice of Appeal or Motion, indicates that it will file both a brief and additional evidence, we have received no additional evidence.

must provide a general proposal showing how it will promote economic growth, including increased export sales, improved regional productivity, job creation, or increased domestic capital investment. Section 610(a) of the Appropriations Act.

The designation of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from investors, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have. Id.

Once the regional center is designated, in order to continue to participate in the Immigrant Investor Program it must, among other requirements, "provide USCIS with updated information annually, and/or as otherwise requested by USCIS, to demonstrate that the regional center is continuing to promote economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment in the approved geographic area." 8 C.F.R. § 204.6(m)(6)(i)(B). If the regional center does not submit the required information or upon a determination it no longer serves the purpose of promoting economic growth, USCIS will issue a notice of its intent to terminate the regional center's designation allowing participation in the immigrant investor program. 8 C.F.R. § 204.6(m)(6)(ii).

II. PROCEDURAL HISTORY

The record of proceeding reflects a "somewhat complex and acronym-laden history," which we discussed in our original remand decision and hereby incorporate by reference. 3 We further provide a detailed timeline as Appendix A. For purposes of this decision, we briefly summarize the procedural history as follows.

The Appellant, through its former director desi nation in Ma 2003 under the name

submitted an a lication for re ional center 4

L---------------....----------1· USCIS approved the application in April 2004, and approved two amendments to '------~'s designation in June 2005 and December 2006, respectively. 5 In June 2008, USCIS approved a third amendment to I ~s designation. The third amendment request changed the Appellant's name to.__ ________ __.

I I, expanded the scope of its investment foci, and introduced a memorandum of understanding between I I and its successors and a separate entity

.__ ________ __,. 6 In December 2009, thel IDepartme~n_t_o_f_T_o_u-ri-sm_a_n_d_S_t_a-te~

Development (DTSD) contracted withl I to provide a number of services, including the

3 See Matter of S-D-R-C-, supra note 1, at 1-3·.--------, 4

1 lwas founded in 1994 to support the I !Governor's Office of Economic Deve~ (GOED) in facilitating and enhancing international trade and investment. I I served as the director ofL__jand filed the application on its behalf. 5 The first amendment request sought an expanded geographic area and modified the business plan. The second increased the number of the Applicant's industries of focus, and modified the business plan. 6 I I. was incorporated in 2008 with I las President and registered agent. This memorandum of understandin identified . as "organized for the purposes of creating an EB-5, Alien Entrepreneur investment project within.__ ___ ~ and managing and operating its connection with the Immigrant Investor Pilot Program .... "

2

solicitation and vettin of investors and the production of regular reports on the regional center's various activities. 7 in his capacity as Secretary r DTSD, executed this contract on the department's behalf.-...~~--left employment with and began working forl I at around the same time. 8 After the administration changed in 2011, DTSD became known as the Governor's Office of Economic Development (GOED), andl ljoinedl Ito serve as a loan monitor. In May 2011, the Appellant filed a fourth request to amend its designation. 9

On September 19, 2013, the Appellant terminated its management contract withl I and was subsequently managed by the State o~ I through GOED. 10 On September 28, 2015, the Chief issued a NOIT based on a finding that the Appellant no longer served the purpose of promoting economic growth. Onl I 2016, following the Appellant's timely response, the Chief certified a decision to terminate the Appellant's designation to us and advised it accordingly. At around the same time, the State o~ lchargedl lwith five felony counts of unauthorized disposal of personal property subject to a security interest. See State C!A I

I I He subsequently pled guilty to one felony count, and received two years of probation, a $2,000 fine, and $104 in court fees. 11

In March 201 7, we withdrew the initial termination decision and remanded the matter back to the Chief for further consideration. The Chief then requested additional information from the Appellant in (pril 20{ 7. Following a review of its response, the Chief terminated the Appellant's designation on 2018, again finding that it no longer served the purpose of promoting economic growth. On appeal, the Appellant argues that the Chief ignored important elements in the record and failed to properly weigh evidence in reaching her decision. It requests that we review the Chief's decision, and either remand the decision or reinstate its designation as a regional center.

III. ANALYSIS

In our prior decision remanding this matter to the Chief: we explained that, in determining whether termination of a regional center's designation is warranted, the totality of the record should be considered, namely, both derogatory evidence and any countervailing positive factors with respect to promotion of economic growth. We noted that the language of 8 C.F.R. § 204.6(m)(6)(ii) explicitly mentions failures to submit required information or to serve the purpose of promoting economic

7 DTSD is identified in this contract as "[having] been designated by the U.S. Customs and Immigration Service ("CIS") [sic] as a regional center (the "Regional Center") for the purposes of and pursuant to 8 CFR 204.6 and other applicable law." 8 The Applicant indicated this in a timeline provided as part of its response to the Chiefs September 2015 NOIT. 9 USCIS records reflect that the Chief issued a notice of intent to deny (NOID) this amendment in August 2016, affording the Applicant 30 calendar days to respond. Having received no response within this timeframe, the Chief denied this amendment in October 2016. 10 The reasons for termination of this contract are not documented in the record, however media reports at the time indicate that state officials had been preparing to anest and indict for alle edl double-billing the state ap.d....misilifecting state money to his own salary. See Documents: 'Ar us Leader L__j2014), http://www.argusleader.com/story,.__ __ ___,,-,------,,---------,,------,,------------' (last accessed March 29, 2019.) 11 See Order Suspending Imposition of Sentence,~------------------~ provided in response to the Chiefs April 2017 request for additional information.

3

growth as grounds for issuing a notice of USCIS' intent to terminate. We found support for a broad reading of this regulation as encompassing more than inactivity:

We find evidence of the termination regulation's breadth in the supplemental information that accompanied the regulation when it was promulgated. In response to a public comment that the proposed termination rule was vague and should contain mention of specific mandated or prohibited regional center practices, "DHS note[ d] that the regulation at 8 CFR 204.6(m)(6) already provides a means to terminate a regional center if the regional center 'no longer serves the purpose' of the program. DHS believes that the potential reasons for the termination of a regional center extend beyond inactivity on the part of a regional center." 75 Fed. Reg. 58962, 58980 (Sept. 24, 2010) (emphasis added). It is clear that, from the inception of this rule, DHS contemplated general oversight of the program's integrity. Moreover, the EB-5 regulations contemplate that, at a bare minimum, the regional center's activities will be lawful. For example, the regulations define a "commercial enterprise" in part as "any for-profit activity formed for the ongoing conduct of lawful business." 8 C.F.R. § 204.6(e).

Matter of S-D-R-C-, supra, at 5 (emphasis in original).

Based on this contextual evidence, as well as common sense, we indicated that criminal activity and "bad acts" within the EB-5 program can be relevant to the analysis of whether a regional center is serving the purpose of promoting economic growth. 12 However, the ultimate determination must be based on the specific and complete facts of the case. Where both positive and negative indications of the promotion of economic growth exist, we look at all relevant documentation to reach a conclusion regarding whether the regional center is continuing to promote economic growth. 13 Positive factors may include job creation, capital investment, and other signs of positive economic impact. Negative factors may include mismanagement, theft, or fraud by the regional center or related entities. Id., at 6.

A. Promotion of Economic Growth

As discussed above, inc=]2018, the Chief terminated the Appellant's designation after considering the record before her. Specifically, she considered the Appellant's past job creation, a positive factor, and the significant inactivity of the Appellant, a negative one. She also identified the Appellant's efforts to remove a bad actor and mitigate the impacts of this actor as a positive factor and weighed it against its failure to monitor and oversee the bad actor such that diversion could occur, a negative one. The Chief concluded that the negative factors weighed more heavily than the positive ones, and

12 We also noted that Congress authorized the Department of Homeland Security to designate regional centers for the purpose of creating jobs and promoting economic growth. 13 While we previously implied that this is a balancing test, we are not simply tallying up factors to see whether the negatives outweigh the positives. Instead, we must assess how the positives indicate that the entity continues to serve the purpose of promoting economic growth and how the negatives show that the entity does not serve such purpose. See 8 C.F.R. § 204.6(m)(6)(ii). In reaching this conclusion, we examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 376 (AAO 2010).

4

therefore that it no longer served the purpose of promoting economic growth pursuant to 8 C.F.R. § 204.6(m)(6).

On appeal, the Appellant presents no new evidence, but instead argues that the Chief erred in her weighing of the positive and negative factors. Specifically, it asserts that she afforded iusuffijient weight to its job creation, economic impact, and its remedial efforts with regard td.__ ___ _.and I l and failed to address all of the evidence in the record when weighting both positive and negative factors. For reasons discussed below, we agree with the decision to terminate the Appellant's participation in the program based on the determination that it no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment.

In its brief: the Appellant argues that the Chief erred in her analysis of the record and her balance of job creation against the Appellant's inactivity by not ascribing more substantial weight to job creation and economic impact. It contends that the Chief failed to account for the impact that $500 million capital investment and 5,000 jobs would have onl I The Appellant also asserts that the Chief's reliance on lack of activity ignores the negative impact that the NOIT and the investigation intol I had on its ability to pursue projects.

The record reflects capital investment, job creation, and approved investor petitions associated with the Appellant, which predominantly occurred in the past (specifically, through 2013). The record includes the Appellant's Forms I-924A, Supplement to Form I-924. 14 This form, first introduced in 2010, requests information such as the total EB-5 capital investment, the amount of job creation, and the numbers of Form I-526, Immigrant Petition by Alien Entrepreneur, and Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, that have been approved, denied, and revoked. Here, the Appellant's Forms I-924A for Fiscal Years 2010 through 2013 report a cumulative EB-5 capital investment of $524,000,000 and a total of 3,197.1 jobs created, and numerous approved Forms I-526 and Forms I-829. 15 USCIS records similarly reflect that, through the end of calendar year 2013, numerous Forms I-526 and Forms I-829 were filed by investors associated with the Appellant.

Beyond this historical activity, the record includes limited evidence indicating job creation or other promotion of economic growth since 2013. While the Appellant's fiscal year 2014 and 2015 Forms I-924A report some additional jobs created, they report no new capital investment or approved Forms I-526. The Appellant has not submitted a Form I-924A since fiscal year 2015 to report on its capital investment or job creation. A review of USCIS records for calendar years 2016, 2017, and 2018 show no receipts of new Forms I-526 that would indicate new or ongoing investments. During that same time period, USCIS records indicate only three Forms I-526 were approved, each of which was filed in 2011. Also, while USCIS records show 174 associated Forms I-829 were approved in calendar years 2016, 2017, and 2018, these approvals were based on earlier investment and job creation, and they do not demonstrate new capital investment from 2014 onward. 16

14 The Form T-924A, renamed the Annual Cenification of Regional Center since December 23, 2016, is the fonn designated for regional centers to provide USCTS with updated information to demonstrate that it is continuing to promote economic growth. 15 See Appendix B for a summary of the information reported by the Applicant on these forms for Fiscal Years 2010-2015. 16 USCIS records show no receipts or approvals of any Form 1-526 or Form 1-829 in calendar year 2019, to date.

5

In addition, the record lacks evidence demonstrating the Appellant's plans or intent to pursue new projects in recent years, such as requests to amend its designation. In an October 2015 letter provided with the Appellant's NOIT response,.__ _____ ____. deputy commissioner of GOED and the Appellant's principal, confirmed that "GOED has not sponsored any new projects since terminating I I's contract because it has focused its resources on resolving issues arising from prior activity andl l's administration of the regional center." In a letter accompanying this appeal,

I lrecites a number of events that he posits would have made pursuing projects between 2013 and 2015 as "reckless" and "untenable", including:

Twin federal and state investigations into EB-5 Regional Center issues; GOED's swift subsequent termination o~ Is contract; three independent, outside audits of all GOED activities at the agency's request; four separate hearings on EB-5 Regional Center issues before thel !Legislature's Government Operations and Audit Committee; and settlement negotiations between GOED and I I aimed at gaining GOED access to information needed to administer the Regional Center (and culminating in litigation against I I beginning in 2015 and the later criminal prosecution of1 h.

These statements indicate an intentional choice by the Appellant to address other concerns than the pursuit of projects to promote economic growth. However, subsequent to these events, the record does not demonstrate the Appellant has pursued new projects, much less continued to serve the purpose of promoting economic growth. In its response to the Chief's request for information in April 201 7, the Appellant states that "the NOIT has effectively foreclosed any ability for the regional center to sponsor - or even consider sponsoring- projects unless USCIS rescinds the NOIT." We note that the Chief issued the NOIT in September 2015, following the bad acts ofl I and the numerous events identified byl I that those acts precipitated. The Appellant submits no evidence to support its assertion that the NOIT has prevented it from pursuing projects. Neither has it submitted evidence demonstrating how it is continuing to serve the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. Thus, we agree with the Chief's conclusion that the Appellant "appears to be inactive and has no current viable projects."

Under the regulations, a regional center must demonstrate that it is continuing to promote economic growth, and termination may be based on a determination that it no longer serves that purpose. 8 C.F.R. § 204.6(m)(6)(i)-(ii). We find the record supports a conclusion that the Appellant had, by its own choice, been largely inactive for several years at the time of the Chief's decision, and remains so today. Notwithstanding the reasons for its current situation, we find that this inactivity, and the lack of pursuit of new projects, are more indicative of whether the Appellant continues to serve the purpose of promoting economic growth than the capital investment, job creation, and petition approvals that predominantly occurred in the past.

On appeal, the Appellant also argues that the Chief's analysis of its inactivity ignored the significant positive impact of its relationship with the state entity GOED, by and through which it is operated, on its ability to pursue projects in the future. As evidence of GOED's intent to pursue projects in the future, in the response to the Chief's April 2017 request for information, I states that

6

"should the N0IT be resolved favorably, [G0ED] would consider recommending immirant investor capital for a project when we believe it is otherwise appropriate." Beyondl 's statement, the record lacks evidence ofG0ED's intent to pursue future projects with! I such as signed letters of intent, communications discussing potential projects, or other documentation expressing this interest. In its appeal brief: the Appellant provides statistics from G0ED's Annual Reports for 2013 through 201 7 showing the number of companies making committed investments and number of business leads in each of these years as evidence of G0ED's ability to pursue projects. 17 While this evidence is relevant to G0ED's ability to pursue new projects, absent evidence that it plans to do so in concert with the Appellant, these assertions and statistics are oflimited probative value with respect to whether the Appellant was serving the purpose of promoting economic growth at the time of the Chief's decision or is currently doing so.

The Appellant also asserts that the Chief erred in considering the past bad acts and oversight failures in this case compared with the mitigating steps it has since taken. The Appellant first argues that, in focusing on the misdeeds ofl I, the Chief did not "take into account! I's dual role [ as manager both of the regional center and of the various affiliated new commercial enterprises into which individuals invested] as a mitigating factor.. .. " It contends that, as I I was an independent contractor, the Appellant bears "no legal accountability" for the actions taken by it in this role. The Appellant opines that, by not accounting for this, the Chief assigned too heavy a weight to

I Is misdeeds and should have placed a greater weight on G0ED's mitigating actions, and that she misapplied our March 201 7 decision in which we pointed out the difference between the Appellant andl I

As noted by the Appellant, the procedural history section of our previous decision stated that "it is vital to maintain the distinction between the regional center the Chief is proposing to terminate and the Appellant in this case and , the management company that ran [ the regional center] for a number of years.".__ ______ _, at 2, n.5. While we noted the difference between these two similarly-named entities, our decision explicitly rejected the position that I l's status as a separate entity would render any mismanagement irrelevant or expunge the entity's misdeeds as negative factors in this case. 18 Rather, the Appellant bears responsibility for the environment and structure that allowed! l's actions to occur.

The Appellant argues that the Chief failed to give appropriate consideration to its actions after terminating its contract withl I. as mitigating factors against relevant negative factors, in this case the alleged diversion of fonds and the deficiencies in the Appellant's monitoring and oversight of I I In reviewing the record, we do not find that it supports the Appellant's assertion. The Chief's decision identifies the State ofl ts civil settlement withl I its efforts to recover investor information fronc=Jr-,aw Firm, and I l's successful prosecution ofO

I las mitigating factors. Further, she states that evidence of these actions provided by the Appellant in response to her April 201 7 correspondence "shows that the [Appellant] has attempted to correct past errors, attempted to obtain required information, and set up a new framework for proper

17 The Appellant provides these statistics in its appellate brief and provides hyperlinks to said reports. The full text of these reports is not provided in the record. 18 Specifically, we stated on page 6: "The Applicant cannot immunize or absolve itself ofresponsibility for its management company's wrongdoing simply by the fact that it contracted out its operations to that company. The implications of such a framework are plainly inconsistent with proper USCIS oversight of the EB-5 program."

7

monitoring and oversight." We acknowledge this to be the case, and find that these efforts lessen the concerns raised by the past mismanagement and oversight of I I with respect to the Appellant's current and future ability to properly manage and oversee its operations.

However, we agree with the Chief's conclusion that the Appellant's mitigating actions do not eliminate such concerns as a negative factor. For instance, while the Appellant indicates that it has taken positive efforts to obtain missing investor information to cure the inconsistencies in its Forms I-924A, it provides no evidence that it ultimately was successful in so doing, nor has it submitted any amended Forms I-924A correcting previously identified discrepancies. Similarly, the positive weight of the Appellant's newly developed monitoring framework is diminished by the fact that it was done not of its own volition, but rather in response to the Chief's notification of its failure to properly monitor and oversee its sponsored activities. Furthermore, the Appellant has not identified any projects in which the framework has, or could be, implemented. Accordingly, while we find the impact of the new templates and monitoring framework to be a positive factor, it is of little weight as the Appellant has not shown how they have or will result in continued promotion of economic growth.

Next, the Appellant asserts that the Chief ignored evidence and improperly concluded that the Appellant is "incapable of conducting ongoing monitoring and oversight of projects." Specifically, it argues that the Chief ignored evidence in the record that it has retained counsel to assist in advising it on management in the future and that, through GOED, it now has extensive experience handling and monitoring large financial arrangements. While the Chief does not directly address this evidence in her decision, we do not find that it would alter the above conclusion that the Appellant's mitigating actions are a positive factor, but do not, considered with the other evidence in the record, establish that the Appellant continues to serve the purpose of promoting economic growth.

The Appellant contends that GOED possesses extensive experience monitoring large financial arrangements in the appellate brief: including "both loan transactions and compliance issues, as the agency is responsible for administering all state economic development programs, including its flagship revolving loan fund with $115 million in assets." However, the record contains no corroborating evidence regarding GOED's claimed monitoring experience, including its capabilities or its successes in this regard. Furthermore, as we discussed above, the Appellant has not pursued or proposed any new projects to demonstrate how GOED's experience will contribute to the regional center's ability to properly monitor projects in the future. The Appellant does not detail the process by which GOED would monitor future programs, identify projects it has completed without financial irregularities, or discuss its experience with the EB-5 program, if any.

Similarly, the Appellant contends that the Chief "ignores evidence in the record that GOED has retained the services of highly experienced, nationally recognized EB-5 counsel for assistance in advising it concerning management of the Regional Center's affairs." However, beyond its assertions, we find no evidence of such in the record. 19 While the retention of experienced counsel to assist in the management of the regional center, and the Appellant's assertion that counsel was "intimately involved in the creation of the templates and framework for monitoring and due diligence" positively

19 We note that the Appellant has submitted several Forms G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, authorizing counsel to represent it in proceedings before USCIS. Those forms do not indicate legal services counsel may provide beyond representation before this agency.

8

reflect on its intent to properly monitor and oversee projects in the future, the record lacks evidence, such as agreements or other documentation providing information about how counsel intends to do so.

Next, the Appellant argues on appeal that, in relying on the various types of harm caused by its alleged diversion of funds 20 as a negative factor and as a reason to weigh the past mismanagement more heavily, the Chief undermines our prior conclusion that investor immigration status is unrelated to the decision to terminate a regional center. The Appellant misconstrues the language in our previous decision. As noted by the Appellant, in addressing its claim that termination would adversely impact investors with pending petitions, our prior decision stated that "the question of whether a regional center merits continued designation is not contingent on its investors and their immigration statuses, but whether or not the center's activities continue to serve the EB-5 program's purpose of creating U.S. jobs and promoting economic growth." In other words, if a regional center no longer serves the purpose of promoting economic growth, termination is appropriate, even though investors "may find their petitions jeopardized in some manner by actions or inactions of the regional center under which they made their investments." Matter of S-D-R-C-, supra, at 9. We did not indicate, however, that harm caused by past misdeeds would be irrelevant in considering the weight assigned to those misdeeds and their impact on whether an entity continues to serve the purpose of promoting economic growth.

Alternately, the Appellant contends that in this instance the harm relied on by the Chief "is both speculative and too attenuated to support the heavy weight [she] ascribes to the alleged failures of the Regional Center." It focuses on the Chief's lengthy discussion ofl i's alleged diversion of funds and on her reliance on the harm done to investors and others by these actions.

Common sense dictates that USCIS cannot be compelled to maintain a malfeasant entity in the EB-5 program indefinitely and regardless of how egregious its acts may be. It would be absurd to suggest, for example, that USCIS could not terminate a regional center's designation due to clear evidence of criminal activity simply because there is some evidence of economic growth. While Congress created the regional center program to concentrate pooled investment in defined economic zones and further the promotion of economic growth, in part by allowing regional center investors to rely on indirect job creation, there is no indication that Congress intended to relax the fundamental requirement that the program further lawful and legitimate commercial activity. See section 610 of the Appropriations Act, as amended; see also Immigrant Investor Pilot Program, 58 Fed. Reg. 44606-01 (Aug. 24, 1993) ("[S]ection 610 of the Appropriations Act does not relieve individuals seeking to immigrate to this country as alien entrepreneurs from any of the other requirements of section 203(b )( 5) of the Act or 8 CFR 204.6."). Congress authorized USCIS to designate regional centers to pool immigrant investor funds for the purpose of creating jobs and promoting economic growth. If it is to continue serving its fundamental purpose, USCIS must ensure the integrity of the EB-5 program. The Appellant appears to concede that the harm caused by a regional center's failure to monitor capital investment activities under its sponsorship can be relevant to a determination of whether the entity continues to serve the purpose of promoting economic growth.

20 In her termination. the Chief identified three instances ofl ~ s alleged diversion of EB-5 funds for purposes other than job creation and noted that these incidents occurred ·'[as] a result of the [Applicant's] failure to conduct proper monitoring and oversight."

9

Here, however, the Appellant argues that the harm is too speculative and attenuated to support termination. We disagree. While some of the diversion of funds under] Is management of the Appellant, either in his individual capacity or as the president on I., is alleged and therefore afforded less weight than his criminal conviction for other financial crimes, the Chief rightly considered the evidence in the record related to acts of alleged misappropriation of funds. In the NOIT, the Chief identified a number of instances of apparent diversion of EB-5 funds away from intended job creating purposes. These include:

• $2.16 million from funds intended forl ILP D for settlement payments and loan repayments

• Over $1 million fromc=J on miscellaneous expenses that appear to be related to the Appellant, including agent fees, meals and housing in Korea, and legal costs for the Appellant

• At least $1. 7 million of funds transferred fromD to ~---------~' a Cypriot holding company

• Approximately $5.14 million to purchase I a a British Virgin Islands company that had lent $2.85 million in bridge financing to

Th A llant submits no evidence to overcome the alleged diversion of funds that occurred under s directorship. Rather, it contends that the Chief failed to consider statements fromD had previously been submitted. We have reviewed the statement and sup[ orting material

referenced, and find it to be of very limited evidentiary value. We also note that _ I has explicitly stated that "GOED unequivocally refrains from endorsin~ Is statements."

In a letter froml ~ responding to the Chief's first notice of termination,! I offers his opinions on a variety of the issues identified therein. Most usefully, he contends that a $550,000 settlement transaction identified in the NOIT was actually compensation for work performed in construction of the plant, and supports his statement with copies of a mechanic's lien, a transaction list, and invoices. However, I I does not provide information resolving any of the other concerning transactions. Rather, many of his statements appear incongruous; for example, he repeatedly states that "there was no need throughout the loan disbursement process to require every draw request of EB-5 funds to be specifically used for EB-5 eligible expenses," but then claims that D had $54.5 million dollars in financing from sources other than EB-5 and that the suspect transactions may have come from those funds. Furthermore, he also claims that "[ m ]onitoring of expenditures by EB-5 equity investors was never a part of the responsibilities of the Regional Center in 2007." (emphasis in original). These statements do not meaningfully address the issues raised by the Chief.

The Chief identified several strata of harm caused by the alleged diversion of funds from projects associated with the Appellant, including investors who lost funds, workers who would have received jobs had the funds been appropriately invested, erosion of public trust in the EB-5 program and the agencies that oversee it, and the cost to the I I taxpayers stemming from the criminal and civil lawsuits. While we sympathize with the investors and others affected by its actions, in the instant termination proceeding, we must decide whether the Appellant serves the purpose of promoting economic growth. See Section 610(a) of the Appropriations Act; 8 C.F.R. § 204.6(m)(6)(i), (ii). As we have explained above, upon a consideration of the totality of the circumstances as well as the

10

positive and negative factors, we conclude that the Appellant has not sufficiently shown that it serves the purpose of promoting economic growth.

The Appellant has been deficient, as it was responsible both in selecting! I as its management company and in failing to provide sufficient oversight of its projects to prevent the alleged diversion of funds away from job-creating activities and the promotion of economic growth intended by Congress.

B. Summary

As discussed above, we agree with the Chief's conclusion that the Appellant no longer serves the purpose of promoting economic growth, including increased export sales, improved regional productivity, job creation, and increased domestic capital investment. See 8 C.F.R. § 204.6(m)(6)(ii). We agree that the steps taken by the Appellant to protect against future mismanagement lessen but do not eliminate past misdeeds as a negative factor. In addition, the conclusion that the Appellant no longer serves the purpose of promoting economic growth is strongly supported in this case by the nearly five-year period preceding the Chief's decision during which the Appellant was largely inactive. The positive factors reflected by the projects the Appellant sponsored through 2013 and their resulting job creation and positive economic impact are not sufficient to outweigh the subsequent prolonged period of economic inactivity and absence of any demonstrated efforts or plans to engage in such activity. Accordingly, we affirm the Chief's 2018 decision terminating the Appellant's designation as a regional center.

III. CONCLUSION

USCIS has considered all evidence in the record "for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence." See Matter of Chawathe, 25 I&N Dec. at 376. For the reasons set forth above, USCIS upholds the Chief's termination of the Appellant's designation, based on the determination that it no longer serves the purpose of promoting economic growth in compliance with the program.

ORDER: The appeal is dismissed.

11

Appendix A

Detailed Timeline

May 31, 2003 Appellant requests initial designation asl I April 8, 2004 users grants Appellant's initial designation asl I December 22, 2004 Appellant requests first amendment to initial designation June 13, 2005 USCrS approves Appellant's request to amend its designation. May 4, 2005 Appellant requests second amendment to its initial designation. December 12, 2006 USCrS approves Appellant's second amendment request. November 8, 2007 Appellant requests third amendment to its initial designation. June 25, 2008 USCrS approves Appellant's third amendment request. December 2009

I l resigns as director of I I and begins role overseeing

December 22, 2009 DTSD enters into consulting contract with I I. on behalf of the Appellant. I !executes the contract for DTSD in his capacity as its secretary.

January 2011 I lleaves state office and joinsl I as a loan monitor.

February 4, 2011 Appellant files Form I-924A for fiscal year 2010. May 26, 2011 Appellant requests fourth amendment to its designation. October 17, 2011 Appellant files a second Form r-924A for fiscal year 2011. 21

February 2012 I !withdraws $300,000 from an account in which the State ofl I held a security interest and uses it for a purpose not authorized by the State o±i lor by I l's contract with the Appellant. 22

November 2, 2012 Appellant files Form I-924A for fiscal year 2012. September 19, 2013 Appellant terminates its consulting contract withl I December 30, 2013 Appellant files Form I-924A for fiscal year 2013. February 12, 2014 Appellant files second Form I-924A for fiscal vear 2013. June 10, 2014 Appellant amends its consulting contract withl I January 2, 2015 Appellant files Form I-924A for fiscal year 2014. September 28, 2015 USCIS notifies Appellant of its intent to terminate its regional

center desi2:nation. I 12015 State ofl I files complaint against! I October 28, 2015 Appellant responds to USCIS' NOIT. December 30, 2015 Appellant files Form I-924A for fiscal vear 2015. I 12016 State ofl ~ chargesl Jwith five counts of

Unauthorized Disposal of Personal Property Subject to Security Interest, a Class 6 felony.

21 USCIS records indicate that the Applicant filed a Form I-924A for Fiscal Year 2011 on February 7, 2011 and that this Form I-924A was rejected. 22 See Order Suspending Imposition of Sentence, ~---------------~

12

I 12016 users certifies its decision to terminate the Appellant's designation to the AAO for review and notifies the Appellant of the certified decision.

August 8, 2016 Appellant provides a brief and evidence addressing USieS' certified termination.

October 14, 2016 users denies the Appellant's fourth amendment. 23

12017 lpleads guilty to one felony count of Unauthorized Disposal of Personal Property Subject to Security Interest resulting from his Februarv 2012 withdrawal of funds.

I l 2011 State of lreaches settlement with I I of its I 2015 complaint.

March 15, 2017 AAO remands USeIS's July 2016 decision for further review. April 26, 2017 users requests additional information from Appellant.

May 25, 2017 Appellant responds to users' request for information. I 12018 users notifies the Appellant that its designation has been

terminated. June 11, 2018 The Appellant files this appeal of USeIS' termination with the

AAO.

Appendix B

Summary of Data Provided by Appellant on Forms I-924A, Fiscal Years 2010-2018

2010 $207,000,000 499 108 0 5 0 2011 $277,000,000 672 554 0 65 0 2012 $19,500,000 300.1 9 75 46 0 2013 $20,500,000 1,726 36 0 172 0 2014 $0 160.3 0 0 16 0 2015 $0 280 0 0 28 0 2016 No Form I-924A Filed 2017 No Form I-924A Filed 2018 No Form I-924A Filed

23 USCIS records reflect that the Chief issued NOID this amendment in August 2016, affording the Applicant 30 calendar days to respond. Having received no response within this timeframe, the Chief denied this amendment for abandonment.

13