[00:00:01] Speaker 02:
Case number 24, Judge 52-37, EB-5 Bowling St.

[00:00:05] Speaker 02:
Et al.

[00:00:06] Speaker 02:
at balance versus Joseph Edlo, Director, United States Citizenship and Immigration Services.

[00:00:12] Speaker 02:
Mr. Bannas for the balance, Ms.

[00:00:14] Speaker 02:
McDade for the appellee.

[00:00:17] Speaker 04:
Mr. Bannas, good morning.

[00:00:18] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:20] Speaker 00:
My name is Brad Bannas.

[00:00:21] Speaker 00:
I represent the appellants in this case.

[00:00:24] Speaker 00:
In 2022, Congress reauthorized the EB-5 Regional Center Program, and it created an annual fee.

[00:00:31] Speaker 00:
It applied that fee to, quote, each regional center designated under subparagraph E, end quote, of that new law.

[00:00:39] Speaker 00:
USCIS quickly interpreted that to apply to all regional centers, like my clients who have existed as regional centers since 2014 and 2015.

[00:00:49] Speaker 00:
By interpreting each to mean all, both USCIS and the lower court created a reversible error, and this court should reverse the lower court's decision

[00:00:58] Speaker 00:
and remand with instructions to enter judgment in favor of the appellants.

[00:01:03] Speaker 00:
This case comes down to a basic statutory interpretation.

[00:01:07] Speaker 00:
What does each regional center designated under subparagraph E actually mean?

[00:01:12] Speaker 00:
And we would suggest that it ends at the plain text.

[00:01:16] Speaker 00:
Each, meaning singular specific regional center, designated under, that would mean approved pursuant to subparagraph E, which is the statute that came out in 2022.

[00:01:29] Speaker 00:
Our clients, there's no dispute, were designated under the law that was originally created in 1992.

[00:01:35] Speaker 00:
The language of designation was added in 2002 and 2003.

[00:01:40] Speaker 00:
So they were designated by the Department of Homeland Security under that law, not subparagraph E of 2022 law that came out after they had been designated.

[00:01:49] Speaker 04:
Wasn't that law repealed?

[00:01:51] Speaker 00:
Your honor, it was repealed and relocated, is how the Behring Court in the Northern District of California rephrases it.

[00:02:00] Speaker 00:
And I would suggest that it was reauthorized.

[00:02:04] Speaker 00:
This statute has a 30-year history of reauthorization.

[00:02:09] Speaker 00:
The 1992 regional center statute was actually passed as part of an appropriations bill.

[00:02:17] Speaker 01:
If the legacy regional centers are still viable or still valid regional centers, then don't they have to be effectively or implicitly designated under E?

[00:02:31] Speaker 00:
No, Your Honor.

[00:02:32] Speaker 01:
Because that's the only way you can be a designated regional center under the current law.

[00:02:38] Speaker 00:
I think there's a distinction between authorized and designated.

[00:02:41] Speaker 00:
I would suggest that subparagraph 3 certainly authorizes the program, but they were designated under a prior law.

[00:02:49] Speaker 00:
And that designation, there's no dispute that designation was in place before 2022, at the moment of passage of 2022, and after 2022.

[00:02:58] Speaker 01:
If we were to agree with you, though, we would create a circuit split with the 11th Circuit.

[00:03:03] Speaker 01:
Is there a way to distinguish the 11th Circuit's decision?

[00:03:06] Speaker 00:
Your Honor, the 11th Circuit's interpretation

[00:03:13] Speaker 00:
I think violates a lot of canons of statutory interpretation.

[00:03:16] Speaker 00:
There's also an interesting question that all of these decisions related to EB-5 are made here in the district.

[00:03:21] Speaker 00:
And so this court's decision would effectively bind USCIS because all of these are made at the thing called the Immigrant Investor Program Office, which is up on M Street, not too far from here.

[00:03:33] Speaker 00:
And so the 11th, anyone who was aggrieved could come to this district and sue because that's where the decisions are being made.

[00:03:41] Speaker 00:
I just think the 11th Circuit decision, which is another one of my cases, Your Honor,

[00:03:46] Speaker 00:
they avoid the most clear statutory interpretation techniques that have been time tested and that is disparate words mean disparate things and somehow interpreting each regional center to mean all regional centers simply doesn't pass the first canon of statutory interpretation.

[00:04:08] Speaker 00:
I think they got caught up a lot, Your Honor, on why.

[00:04:12] Speaker 00:
Why would this policy make any sense?

[00:04:14] Speaker 00:
And my initial claim would be that the court's not supposed to look at policy.

[00:04:19] Speaker 00:
It's supposed to look at the statute.

[00:04:20] Speaker 00:
But I do want to answer that question.

[00:04:21] Speaker 05:
And look at purpose, however.

[00:04:23] Speaker 00:
Purpose.

[00:04:24] Speaker 00:
Yes, Your Honor.

[00:04:24] Speaker 00:
I'm sorry, Judge Rogers.

[00:04:26] Speaker 00:
I do think that it's pretty clear that nothing in this statute requires my clients to get, quote, re-designated.

[00:04:33] Speaker 00:
They were designated before.

[00:04:35] Speaker 00:
They remain designated.

[00:04:39] Speaker 00:
This isn't apparent from the statute, but there are a lot of regional centers, including ones that my client owns, who are dormant now.

[00:04:48] Speaker 00:
That is, they got designated in the 20 teens, they brought in investors, they finished the deal, and they're not seeking to pursue any more benefits under this statute.

[00:04:57] Speaker 00:
They are waiting for visa numbers to become available.

[00:05:00] Speaker 00:
And essentially the projects, the new commercial enterprises have fulfilled their purpose and they're done.

[00:05:05] Speaker 00:
They're not out pursuing new investors.

[00:05:08] Speaker 00:
They're not out there being active.

[00:05:10] Speaker 00:
And so they were designated under the prior law.

[00:05:13] Speaker 00:
They are not required to seek designation under the new law.

[00:05:17] Speaker 00:
And so they should not have to pay for this fee if they're not participating in the program.

[00:05:22] Speaker 05:
Do you attribute any significance to the fact that Congress acted by way of a

[00:05:28] Speaker 05:
an appropriation?

[00:05:31] Speaker 00:
I do not, Your Honor.

[00:05:33] Speaker 05:
With a sunset date?

[00:05:36] Speaker 00:
Your Honor, this program's always had a sunset date since 1992.

[00:05:39] Speaker 05:
The clients were designated until the date set in the statute, right, in the Appropriations Act.

[00:05:50] Speaker 00:
Your honor, the sunset date goes to the authorization of the program, not the designation of the particular business that's acting as a regional center.

[00:05:58] Speaker 05:
I don't want to play word games here, but you responded to Judge Henderson's question by saying that the statute was repealed and you said relocated.

[00:06:10] Speaker 05:
And since we can look at the plain text of the statute and the purpose, the notion that Congress acted

[00:06:20] Speaker 05:
to get rid of graft and corruption, among other things, suggest that it wanted to start the program anew.

[00:06:35] Speaker 05:
There's nothing to suggest that Congress intended the graft and corruption to continue.

[00:06:45] Speaker 00:
I agree, Your Honor, and we're not suggesting, I don't think our position would further graft and corruption.

[00:06:50] Speaker 05:
I don't know how Congress can do anything under your interpretation.

[00:06:54] Speaker 05:
Once you're designated, even hypothetically, were you representing a center that's been shown to be involved in graft and corruption, there's nothing Congress could do.

[00:07:09] Speaker 00:
Your honor, there are other provisions where they can be terminated.

[00:07:11] Speaker 00:
The designation can be terminated, and we're not disputing that.

[00:07:15] Speaker 05:
So you don't think that when Congress authorizes sentencing until fiscal year, whatever, that at that time, the authorization expires by operation of the law?

[00:07:30] Speaker 00:
No, your honor.

[00:07:32] Speaker 05:
Why not?

[00:07:33] Speaker 05:
Isn't that what Congress does every day?

[00:07:35] Speaker 00:
Your Honor, the sunset dates go to the authorization for the program.

[00:07:39] Speaker 05:
I understand that.

[00:07:40] Speaker 05:
So if there's no program.

[00:07:44] Speaker 00:
Well, Your Honor, for 30 years.

[00:07:47] Speaker 05:
Because it's been.

[00:07:48] Speaker 05:
There have been these appropriation acts.

[00:07:51] Speaker 05:
I mean, Congress could have acted a different way, but it didn't.

[00:07:56] Speaker 00:
That's right.

[00:07:56] Speaker 00:
Congress didn't.

[00:07:57] Speaker 05:
So there is some significance that the court can attribute to the fact that it acts by appropriation act.

[00:08:04] Speaker 05:
with sunset dates, as opposed to enacting a permanent piece of legislation.

[00:08:11] Speaker 05:
Is that correct?

[00:08:14] Speaker 00:
If there is, Your Honor, I don't think it impacts this question.

[00:08:19] Speaker 05:
If there is, it certainly does.

[00:08:21] Speaker 05:
That's what I'm trying to get.

[00:08:23] Speaker 05:
Your notion is that once you're designated, you're designated for life,

[00:08:29] Speaker 05:
And it's up to the centers whether they want to operate and whether they want to attract investors or not.

[00:08:35] Speaker 05:
And there's nothing Congress can do about it.

[00:08:38] Speaker 00:
Your Honor, the agencies never interpreted lapses in authorization to lead to de-designation.

[00:08:45] Speaker 00:
That footnote in on.

[00:08:49] Speaker 05:
If that's true, then did Congress waste its time when it enacted?

[00:08:59] Speaker 05:
Senator Grassley and Senator Leahy got together on this reform bill.

[00:09:04] Speaker 00:
I don't think it wasted its time.

[00:09:05] Speaker 00:
No, Your Honor, it reauthorized the program and it codified a lot of practices that were already in the regulations related to integrity measures.

[00:09:15] Speaker 00:
And it still, Congress chose to use different words to mean different things.

[00:09:22] Speaker 05:
So your clients don't want to pay the fee that's designed to fund

[00:09:28] Speaker 05:
the things Congress thought were necessary to eliminate graft and corruption.

[00:09:34] Speaker 00:
My clients who are not pursuing any benefits under the new statute do not think that Congress wants them to pay the fee.

[00:09:40] Speaker 00:
That's correct.

[00:09:41] Speaker 00:
My dormant regional centers that are simply waiting for visa numbers to become available for their investors who are making no money, who are taking in no funds, the project is completely done, and they are pursuing no additional investors under this measure.

[00:09:58] Speaker 00:
So they cannot.

[00:09:59] Speaker ?:
Well, they could.

[00:10:00] Speaker 00:
And if they did, they would likely seek re-designation and fall under this paragraph.

[00:10:09] Speaker 05:
Why?

[00:10:10] Speaker 05:
You say they have.

[00:10:11] Speaker 05:
They've been designated and their designation has not been repealed.

[00:10:17] Speaker 00:
Because it's a marketing thing, Your Honor.

[00:10:19] Speaker 00:
This is a competitive market and to go and sell to investors, you have to show you have a new designation.

[00:10:26] Speaker 01:
So you're saying, though, for the dormant centers that you would be seeking re-authorization if they were to become active.

[00:10:37] Speaker 01:
So then why not just allow the designation to terminate and not pay the fee, right?

[00:10:42] Speaker 01:
So failure to pay the fee will result in termination of the designation.

[00:10:46] Speaker 00:
Because then the investors won't get their visas.

[00:10:49] Speaker 00:
And it'll lead to liability concerns, and everyone will get sued, and we'll be right back here.

[00:10:53] Speaker 01:
Your position is that while they're not actively investing, they shouldn't have to pay the fee, but that's not that's not reflected anywhere in the statute.

[00:11:01] Speaker 01:
If a regional center wants to benefit from its designation for marketing or any other purpose, then it pays the fee.

[00:11:10] Speaker 00:
Your Honor, this doesn't require anyone to get re-designated.

[00:11:14] Speaker 00:
We've been designated.

[00:11:16] Speaker 00:
We've stopped.

[00:11:16] Speaker 01:
But you just said in response to Judge Rogers that if you were to become active again, that you would probably seek designation under subparagraph E. And I think that's consistent with congressional intent.

[00:11:28] Speaker 00:
If you want to participate, you pay the fee.

[00:11:31] Speaker 00:
If you don't want to participate, you've been previously designated, you don't fall into the fee.

[00:11:39] Speaker 00:
And that's why it's each regional center designated under subparagraph E, not all regional centers in existence.

[00:11:46] Speaker 00:
Thank you, R. I'm happy to answer any other questions, but I see I'm over my time.

[00:11:51] Speaker 04:
All right.

[00:11:55] Speaker 04:
Thank you.

[00:11:56] Speaker 04:
Ms.

[00:11:56] Speaker 04:
McTague.

[00:12:09] Speaker 03:
May it please the court, Alexandra for the government.

[00:12:13] Speaker 03:
This court should affirm the district court's decision which is consistent with a recent decision from the 11th circuit that the integrity fund fee of the Reform and Integrity Act applies to all regional centers, not just those designated after the law took effect.

[00:12:30] Speaker 03:
The RIA was designed to curb fraud and abuse in the regional center program, which was rampant.

[00:12:36] Speaker 03:
It repealed the prior law, enacted the new law, and imposed certain reform and integrity measures.

[00:12:42] Speaker 03:
And those measures were to be funded by the integrity fee that applies to each regional center.

[00:12:48] Speaker 03:
Before the court is a question of statutory interpretation, what does it mean for the integrity fund fee of subparagraph J to apply to each regional center designated under subparagraph E?

[00:13:02] Speaker 03:
The government contends that based on the language, structure, and purpose of the statute, it applies to all of the regional centers in the program, whereas you heard the appellants contend that it only applies to new regional centers designated after the law took effect.

[00:13:17] Speaker 03:
But the district court agreed with the government, as did the 11th Circuit in Sunshine State v USCIS.

[00:13:23] Speaker 03:
The fee provision in subparagraph J sets forth two fees that apply to each regional center.

[00:13:29] Speaker 03:
One, a lesser fee for smaller regional centers of $10,000, $20,000 for the larger regional centers.

[00:13:36] Speaker 03:
Now, appellants contend that there is meaning in the word each, but looking at subparagraph J, what that says is that

[00:13:45] Speaker 03:
The fee, the particular fee applies to each regional center.

[00:13:49] Speaker 03:
It's not $10,000 for the aggregate of the regional center.

[00:13:54] Speaker 03:
So it's really just a grammatical way to indicate that it is an individual fee per regional center.

[00:14:01] Speaker 03:
But what's important in subparagraph J is that there's no specific clear language exempting legacy regional centers.

[00:14:08] Speaker 03:
And there's no time constraint on when this particular designation had to occur.

[00:14:13] Speaker 04:
Let me ask you about the word legacy.

[00:14:17] Speaker 04:
They're not anything.

[00:14:19] Speaker 04:
I mean, it's a misnomer.

[00:14:22] Speaker 04:
Once it was repealed, they didn't get any sort of a legacy status.

[00:14:29] Speaker 03:
So the law doesn't have any legacy term.

[00:14:33] Speaker 03:
And it's a shorthand that we've been using to indicate regional centers that existed before the 2022 law and regional centers that existed after.

[00:14:42] Speaker 03:
The Bearing Court said that the regional centers from the prior law continued in the new law.

[00:14:49] Speaker 03:
And as part of that case and a settlement, USCIS agreed to continue that designation through.

[00:14:57] Speaker 03:
So the position of the government is that, based on the bearing decision, the regional centers that were designated under the prior law continued as part of the new law.

[00:15:10] Speaker 03:
The old law was repealed and relocated into 1153B5.

[00:15:15] Speaker 03:
And the designation, the prior designation, continued under that law under subparagraph E.

[00:15:25] Speaker 03:
And so there's no specific exemption for these so-called legacy regional centers.

[00:15:30] Speaker 03:
There's no limitation on the time period of when this designation occurs.

[00:15:34] Speaker 03:
And Appellant's argument is facially appealing.

[00:15:37] Speaker 03:
They couldn't have been designated under subparagraph E because it didn't exist when they were designated.

[00:15:44] Speaker 03:
And so based on that, it might appear that subparagraph E is a method to designate regional centers, but it's not.

[00:15:50] Speaker 03:
Subparagraph E is the regional center program.

[00:15:53] Speaker 03:
That is where Congress relocated it after it repealed the prior law.

[00:15:59] Speaker 03:
And you can tell that from the overall structure of the statute.

[00:16:02] Speaker 03:
So paragraph E is titled regional center program and the district court correctly held that it is comprehensive in scope.

[00:16:09] Speaker 03:
And for example, it talks about applications to become a regional center and the record keeping requirements.

[00:16:16] Speaker 04:
And this provision about not being a convicted felon, that's new also, isn't it?

[00:16:21] Speaker 03:
It is.

[00:16:23] Speaker 03:
Under subparagraph H, there are certain requirements for the individuals involved in the regional center, including that they can't have been engaged in certain drug trafficking crimes or have ties to foreign governments or have engaged in espionage.

[00:16:36] Speaker 03:
And those types of reporting requirements are contained within the statute and have to be part of the annual reports that are submitted under subparagraph G.

[00:16:47] Speaker 03:
And so in looking at subparagraph J refers back to subparagraph E. Subparagraph E talks about regional centers which has been designated by the Secretary of Homeland Security.

[00:17:02] Speaker 03:
And as the 11th circuit held has been designated has no set time period.

[00:17:07] Speaker 03:
So the designation under subparagraph E and the fee under subparagraph J, in neither place did Congress impose some sort of time period on when that designation had to occur.

[00:17:21] Speaker 03:
Now, there are places in the statute where it talks about new regional centers, and that would be subparagraph E, Romanet 3, which is the establishment of a regional center.

[00:17:32] Speaker 03:
That shows how to create a regional center after the new law was enacted.

[00:17:36] Speaker 03:
And as a district court and the 11th circuit both held, if Congress had wanted to limit the fee to only those regional centers that were new, it could have done so by referring to paragraph E Roman at three, but it didn't.

[00:17:51] Speaker 03:
There were any number of ways Congress could have limited the fee provision to only

[00:17:57] Speaker 03:
new regional centers, and it just didn't do that.

[00:18:00] Speaker 03:
And so the government's position is, it's clear from the face of that language that it's not so limited.

[00:18:05] Speaker 03:
It applies to regional centers that are designated under the law.

[00:18:09] Speaker 01:
Well, I think under USCIS's original position, all regional centers would have had to be re-designated, and it was only after the Bering settlement that

[00:18:20] Speaker 01:
legacy regional centers were allowed not to be re-designated under subparagraph E. Correct.

[00:18:27] Speaker 01:
Right.

[00:18:30] Speaker 03:
And so the government's position is that in accordance with that, the designation carried forward.

[00:18:36] Speaker 03:
And designation was a concept that was in the 2002 law.

[00:18:39] Speaker 03:
2002 said the pilot program quote, shall involve a regional center designated by the attorney general.

[00:18:47] Speaker 03:
on the basis of a general proposal.

[00:18:49] Speaker 03:
And that language is very similar to what carried through to the 2022 law, which said the regional center has been designated by the Secretary of Homeland Security.

[00:18:57] Speaker 05:
So help me just understand the practicality of what's happening.

[00:19:05] Speaker 05:
I have a regional center.

[00:19:11] Speaker 05:
I was designated under the old law.

[00:19:15] Speaker 05:
I made my investments, I did my work, and now I'm dormant and I'm just sitting there.

[00:19:24] Speaker 05:
What am I in fact?

[00:19:30] Speaker 05:
What benefit am I getting from my designation under those circumstances?

[00:19:37] Speaker 03:
So the designation allows them to continue in the regional center program, which means one, they could invest in new enterprises if they so chose.

[00:19:47] Speaker 05:
Is that a decision they can make independently?

[00:19:52] Speaker 05:
In other words, I have a center.

[00:19:55] Speaker 05:
It's dormant.

[00:19:57] Speaker 05:
And my center, I have in mind a physical structure, not simply a computer program.

[00:20:05] Speaker 05:
So it's empty.

[00:20:08] Speaker 05:
It's a sitting name and I'm probably paying property taxes on it, but I'm not doing anything with it that's relevant to the program.

[00:20:21] Speaker 05:
I'm not getting investments.

[00:20:24] Speaker 05:
I'm not bringing non-citizens into the country with the idea that they become wall full.

[00:20:35] Speaker 05:
So I have this building that's empty.

[00:20:40] Speaker 05:
And the fee is to put very generally, you know, avoid grafted corruption and all these new requirements.

[00:20:55] Speaker 05:
But how does that have anything to do with my empty structure?

[00:20:59] Speaker 05:
And council tells us,

[00:21:02] Speaker 05:
that, well, if they were to get new investments or be interested in getting new investments or bringing non-citizen country, they would get redesignated.

[00:21:13] Speaker 03:
Well, Your Honor, they're still continuing so that their investors can file their petitions and ultimately get their visas, right?

[00:21:22] Speaker 03:
So they don't want to close their doors.

[00:21:24] Speaker 05:
They're not closed in the sense of an empty building.

[00:21:30] Speaker 03:
I mean, you're not closed in the sense that the investments are still in the regional center.

[00:21:35] Speaker 03:
The investors are still waiting for their visas.

[00:21:40] Speaker 05:
Not a physical concept.

[00:21:43] Speaker 05:
I bring, you know, a hundred million dollars into the country.

[00:21:49] Speaker 05:
And I also bring in some non-citizens and they're 500 of them.

[00:21:55] Speaker 05:
And they've all been processed through the system and they're either citizens or they have green cards or whatever.

[00:22:02] Speaker 05:
But right now I have this empty facility.

[00:22:06] Speaker 05:
It was designated under the old laws.

[00:22:09] Speaker 05:
I'm not seeking any investments.

[00:22:11] Speaker 05:
I'm not bringing anyone into the country to be a part of this program.

[00:22:15] Speaker 05:
I'm just paying state property tax.

[00:22:21] Speaker 03:
I think the point, Your Honor, is that the law doesn't exempt that particular scenario.

[00:22:28] Speaker 03:
The law doesn't accept any scenario.

[00:22:31] Speaker 05:
The only reasonable way to read the statute is Congress could not have intended that my empty building have to pay this fee in order to avoid grafting corruption because I'm not doing anything with it.

[00:22:47] Speaker 05:
It's just sitting there.

[00:22:49] Speaker 05:
What's the best response to that?

[00:22:52] Speaker 05:
Isn't that the argument we're being presented with?

[00:22:55] Speaker 05:
That if I were to become active, then I'd seek re-designation.

[00:23:00] Speaker 05:
I just have a structure.

[00:23:02] Speaker 05:
There's nothing going on.

[00:23:04] Speaker 05:
No investments, no people.

[00:23:07] Speaker 03:
I think the argument, Your Honor, is that Congress didn't parse it that finely because they required, I'm sorry, annual reports from everyone designated under subparagraph E, and they required a fee.

[00:23:19] Speaker 03:
And all of that goes to the graft and corruption that pertained to the prior regional centers of which these are.

[00:23:25] Speaker 05:
There's no way to get out from under this fee, even if all I have is an empty building.

[00:23:35] Speaker 03:
Not as long as the investors are active in that regional center waiting for their visas now.

[00:23:43] Speaker 05:
I don't see that qualification in the law.

[00:23:46] Speaker 03:
There's no qualification in the law, right?

[00:23:48] Speaker 03:
There's no qualification.

[00:23:49] Speaker 03:
It applies to all of the regional centers.

[00:23:51] Speaker 05:
You just added some language that isn't in the fee provision.

[00:23:55] Speaker 03:
Because if the regional center closed down and was gone, then they wouldn't be paying a fee anymore.

[00:24:00] Speaker 03:
And that's what would have to happen to get out of the fee provision because the fee provision applies to everybody.

[00:24:06] Speaker 05:
There is no limitation building where there are no investments and there are no people being brought in.

[00:24:13] Speaker 05:
Well, there's money invested in it by the investors, but yes, the investments have all been used up.

[00:24:20] Speaker 05:
I'm

[00:24:21] Speaker 05:
Made the investments.

[00:24:23] Speaker 05:
I brought in these people.

[00:24:24] Speaker 05:
The deal has been made with the United States government under this statute.

[00:24:29] Speaker 03:
Yes, under that, yes, the fee is still out.

[00:24:33] Speaker 05:
So I'm inactive.

[00:24:38] Speaker 05:
I mean, the interesting thing to me, in Canada, about this case is the argument is by the appellants is they shouldn't be subject to the fee.

[00:24:50] Speaker 05:
But on the other hand, they want to be able to reapply, get new investments.

[00:25:01] Speaker 05:
I'm just not clear how this works.

[00:25:04] Speaker 05:
I understand what Congress had in mind.

[00:25:06] Speaker 05:
There was a lot of graft and corruption.

[00:25:08] Speaker 05:
It wanted to tighten up the system.

[00:25:16] Speaker 03:
Thank you.

[00:25:20] Speaker 03:
I understand your question, Your Honor.

[00:25:23] Speaker 03:
And again, I think the government's position is that there is no limitation on the nature of when the regional center had to be designated.

[00:25:30] Speaker 03:
And if they want to maintain their designation under the law, then they have to pay the fee.

[00:25:34] Speaker 03:
Thank you.

[00:25:35] Speaker 03:
There are no further questions.

[00:25:41] Speaker 04:
I'll just take one minute.

[00:25:48] Speaker 00:
Thank you, Honors.

[00:25:49] Speaker 00:
Judge Rogers, I just want to address your point.

[00:25:52] Speaker 00:
This is what Behring dealt with and begged the agency to engage in rulemaking to determine who needed to be designated, how they needed to be designated, and the injunction lasted until they granted summary judgment or the agency engaged in notice and comment rulemaking.

[00:26:09] Speaker 00:
The agency simply hasn't.

[00:26:11] Speaker 00:
The EB-5 program has been regulated by memo and

[00:26:14] Speaker 00:
policy statements essentially since 1992.

[00:26:17] Speaker 00:
That's when the last regulations came out.

[00:26:20] Speaker 00:
There was a set in 2018 that were set aside for an appointments clause issue, but this is the big question.

[00:26:27] Speaker 01:
Wasn't there a settlement?

[00:26:28] Speaker 01:
Did the settlement require there to also be rulemaking?

[00:26:31] Speaker 00:
The settlement did not, Your Honor, but the injunction did.

[00:26:36] Speaker 00:
And it's my understanding the agency is going to engage in rulemaking sometime in November under a different case.

[00:26:43] Speaker 00:
But right now, that's the real question because Judge Rogers' point is the statute doesn't address any of this.

[00:26:49] Speaker 00:
And our point is under the

[00:26:50] Speaker 00:
canons of statutory interpretation that are time tested.

[00:26:54] Speaker 00:
The answer here is simple.

[00:26:55] Speaker 00:
Each regional center designated under subparagraph E does not include regional centers like my clients.

[00:27:01] Speaker 00:
Thank you, honors.