                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 17-2040
JOHN DOE,
                                                  Plaintiff-Appellant,
                                 v.

KEVIN K. MCALEENAN,
Acting Secretary of Homeland
Security, et al.,
                                               Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
              No. 1:15-cv-01387 — John Z. Lee, Judge.
                     ____________________

      ARGUED MARCH 28, 2019 — DECIDED JULY 3, 2019
               ____________________

   Before RIPPLE, MANION, and SYKES, Circuit Judges.
    RIPPLE, Circuit Judge. John Doe, a native and citizen of
Iran, obtained an immigrant visa through an employment-
based visa program for investors, and, in due course, he suc-
cessfully applied to adjust his status to that of a conditional
permanent resident. At the conclusion of his two-year, condi-
tional term, Mr. Doe petitioned to remove the conditions on
2                                                            No. 17-2040

his residency. The United States Citizenship and Immigra-
tion Services (“USCIS”) denied his petition. Mr. Doe chal-
lenged the denial in the district court, claiming that the deci-
sion was arbitrary and capricious, exceeded the relevant
statutory and regulatory authority, and deprived him of his
due process rights under the Fifth Amendment. The district
court granted summary judgment to the defendants. For the
reasons below, we affirm the judgment of the district court.1
                                     I.
                           BACKGROUND
                                    A.
    Because the factual and procedural background of this
case involves a visa system which is not frequently the sub-
ject of our cases, we begin by setting forth the statutory and
regulatory framework.
    The EB-52 program, colloquially known as the “investor
visa,” is a program designed by Congress to encourage sig-
nificant, job-creating investment in commercial enterprises
in the United States, with special incentives related to rural
or economically depressed communities where unemploy-
ment is at least 150% of the national average. The program,




1 The district court had jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 and 5 U.S.C. § 701 et seq. Our jurisdiction is based on 28 U.S.C.
§ 1291.
2 The designation “EB-5” denotes that it is the fifth preference category
of “employment-based” visas.
No. 17-2040                                                              3

in its current iteration,3 requires an alien investor to make an
investment of at least $500,000 for a new commercial enter-
prise located in a rural or high-unemployment area and up
to $3,000,000 for a new commercial enterprise located in an
area with an unemployment rate significantly below the na-
tional average.4 The enterprise can be the creation of a new
business, a purchase of an existing business with substantial
restructuring or reorganization, or the substantial expansion
of an existing business. The enterprise must create full-time
employment for a minimum of ten qualified employees. See
generally 8 U.S.C. § 1153(b)(5); 8 C.F.R. § 204.6.
    The process by which an alien obtains status under
§ 1153(b)(5) begins with a petition for classification as an al-
ien entrepreneur. A petition must be accompanied by evi-
dence “that the alien has invested or is actively in the pro-
cess of investing lawfully obtained capital in a new commer-
cial enterprise in the United States which will create
full-time positions for not fewer than 10 qualifying employ-
ees.” 8 C.F.R. § 204.6(j). Specifically, the petition must con-
tain evidence of the existence or formation of the enterprise
itself. To demonstrate “that the petitioner has invested or is


3 Substantial changes have been proposed to the program, including in-
creases in the minimum investment and a redefinition of targeted areas.
See EB-5 Immigrant Investor Program Modernization, 82 Fed. Reg. 4738
(proposed Jan. 13, 2017) (to be codified at 8 C.F.R. pts. 204 and 216).
4 The alien need not “create” a “new” business in the literal sense.
“New” for purposes of the statute means established after November 29,
1990, the date of enactment of the Immigration Act of 1990, Pub. L. no.
101-649, 104 Stat. 4978. See 8 C.F.R. § 204.6(e). Any business formed after
the statute’s effective date is “new” for the purposes of the statute, and
an alien need only “invest” in, not create, such business.
4                                                  No. 17-2040

actively in the process of investing the required amount of
capital, the petition must be accompanied by evidence that
the petitioner has placed the required amount of capital at
risk for the purpose of generating a return on the capital
placed at risk.” Id. § 204.6(j)(2). Financial documents show-
ing deposits and expenditures must be submitted.
    Immigrant investors seeking to qualify for an EB-5 visa
may make either direct investments into a business or can
invest through a business designated by USCIS as a “region-
al center.” Regional centers are essentially clearinghouses for
eligible investment opportunities. As the USCIS Policy
Manual states, “The regional center model can offer an im-
migrant investor already defined investment opportunities,
thereby reducing the immigrant investor’s responsibility to
identify acceptable investment vehicles.” USCIS Policy
Manual,        Volume      6,      Part    G,     Chapter     3,
https://www.uscis.gov/policy-manual/volume-6 (current as
of June 6, 2019). With respect to the proof of capital at risk,
direct investments and regional center investments have
identical requirements. However, for the purpose of the
job-creation requirement, direct investments and regional
center investments have one important difference. Direct in-
vestment can only satisfy the job-creation requirement with
the creation of direct jobs, i.e., new positions within the new
commercial enterprise itself. For a petition filed on the basis
of jobs already created, a petitioner submits relevant tax rec-
ords, for example, documenting direct hires. 8 C.F.R.
§ 204.6(j)(4)(i)(A). By contrast, investments through regional
centers allow EB-5 applicants to satisfy the job-creation re-
quirement with either direct or indirect positions. An indirect
job is one held outside of the new commercial enterprise but
created as a result of the new commercial enterprise. An al-
No. 17-2040                                                             5

ien who chooses to rely on such indirect, econom-
ic-impact-based employment must use an approved eco-
nomic methodology to establish that the requisite number of
jobs have been or will be created. See id. § 204.6(m)(7)(ii).5
For a petitioner like Mr. Doe, who files on the basis of an en-
terprise anticipated to create the required number of jobs, his
petition must include “[a] copy of a comprehensive business
plan showing that, due to the nature and projected size of
the new commercial enterprise, the need for not fewer than
ten (10) qualifying employees will result, including approx-
imate dates, within the next two years, and when such em-
ployees will be hired.” Id. § 204.6(j)(4)(i)(B).
    The approval of an EB-5 visa petition results in the issu-
ance of an immigrant visa and permits the alien to file for
permanent resident status on a conditional basis. See 8 U.S.C.
§§ 1255(a), 1186b(a)(1). Conditional residency lasts for two
years. Ninety days before the expiration of the conditional
residency, an alien may apply to have the conditions on res-
idence removed and become a lawful permanent resident.
8 U.S.C. § 1186b(d)(2)(A). At that time, USCIS must reevalu-
ate the alien’s investment and ensure that the alien:
        (A) (i) invested, or is actively in the process of
        investing, the requisite capital; and


5 The regulations allow that to demonstrate “indirect job creation,” “rea-
sonable methodologies may be used. Such methodologies may include
multiplier tables, feasibility studies, analyses of foreign and domestic
markets for the goods or services to be exported, and other economically
or statistically valid forecasting devices which indicate the likelihood
that the business will result in increased employment.” 8 C.F.R.
§ 204.6(m)(7)(ii); see also id. § 204.6(m)(3)(v).
6                                                          No. 17-2040

        (ii) sustained the actions described in clause (i)
        throughout the period of the alien’s residence
        in the United States; and
        (B) is otherwise conforming to the require-
        ments of section 1153(b)(5) of this title.
8 U.S.C. § 1186b(d)(1); see also 8 C.F.R. § 216.6(a). The alien
bears the burden of demonstrating that he satisfies all eligi-
bility criteria by a preponderance of the evidence. Matter of
Chawathe, 25 I. & N. Dec. 369, 375 (BIA 2010).
    Mr. Doe successfully navigated each of the steps of this
process until the final one, the petition to remove the condi-
tions on his residence. In its consideration of that petition,
USCIS identified two potential issues with respect to his ap-
plication: whether his investment was sustained, at risk,
through the duration of his residency, and whether the pro-
ject would create the requisite number of jobs within a rea-
sonable period of time. USCIS was required to engage in this
inquiry and to consider the state of affairs as of the time of
the final petition even though it previously had found the
same requirements satisfied. See 8 C.F.R. § 216.6(c)(1).6 Its
resolution of these matters is the subject of Mr. Doe’s appeal.




6  8 C.F.R. § 216.6(c)(1) provides, in relevant part, that the Director of
USCIS must determine whether “[a] commercial enterprise was estab-
lished by the alien” and whether “[t]he alien invested or was actively in
the process of investing the requisite capital.” In addition, the Director
must find that “[t]he alien sustained the[se] actions … throughout the
period of the alien’s residence in the United States.” Id.
No. 17-2040                                                   7

                                       B.
     In 2011, Mr. Doe became one of twenty-four indirect im-
migrant investors in a proposed project to build Elgin
Memory Care, Inc., a 110-unit assisted living facility in Elgin,
Illinois. Each individual investor would contribute a mini-
mum of $500,000 to be used for the project and, if additional
statutory and regulatory requirements were satisfied, by vir-
tue of their investment would become eligible for an EB-5
visa.
    While Mr. Doe’s initial capital investment was held in es-
crow, he self-petitioned for his EB-5 visa (the “I-526 peti-
tion”). His petition included a then-current business plan,
which represented that, with the $12 million investment as
the total project cost, construction of the facility would begin
in 2010 and the facility would be operational by 2011. The
plan also claimed that the project would create more than
270 full-time jobs. USCIS approved the I-526 petition in June
2011. One month later, Mr. Doe’s $500,000 investment was
transferred to Elgin Memory Care, and three days after the
transfer, on August 1, 2011, Elgin Memory Care purchased a
parcel of land on which it intended to build the assisted liv-
ing facility. Elgin Memory Care paid $1.1 million for the
land.
    With an approved immigrant visa in hand, Mr. Doe was
eligible to apply for adjustment of status.7 His application
for adjustment was approved in 2011, and he was granted
conditional resident status for a two-year period. See 8 U.S.C.
§ 1186b. Approximately one month before the expiration of


7   See 8 U.S.C. §§ 1186b(a)(1), 1201–02; 8 C.F.R. § 245.2.
8                                                         No. 17-2040

his conditional residency in October 2013, Mr. Doe filed a
petition to remove the conditions on his residence (the “I-829
petition”), as permitted by the statute.8
    In response to his petition, in August 2014, Mr. Doe re-
ceived the first indication that USCIS was beginning to have
concerns about the investment that formed the basis of his
visa: USCIS issued a thorough and detailed seven-page Re-
quest for Evidence to Mr. Doe. The Request sought further
evidence that his investment satisfied two critical grounds of
EB-5 eligibility, both significant to the disposition of the pre-
sent appeal. First, the agency requested certain information
to confirm that Mr. Doe’s capital investment with the EB-5
Fund had been sustained throughout his two-year condi-
tional residency period. In addition to seeking relevant fi-
nancial documents and tax records that Mr. Doe had not
provided, the Request specifically noted that, in searching a
property records database, it had discovered something
questionable about the land transaction that was the sup-
posed purpose of Mr. Doe’s capital investment. USCIS had
learned that Elgin Memory Care purchased the parcel of
land for $1.1 million from an entity called UIS Development,
LLC, on the very same day that UIS itself had purchased the
parcel from Nesler & Lake CRE, for nearly half the amount,
$630,000. The Request gave examples of potential evidence
to overcome deficiencies related to whether Mr. Doe’s in-




8 The period during which an alien may apply to remove conditions is
the ninety-day period prior to the expiration of the conditional residen-
cy. 8 U.S.C. § 1186b(d)(2)(A).
No. 17-2040                                                   9

vestment was placed “at risk,” including an explanation of
the prior sale “with supporting evidence.”9
    In addition to articulating the specific concerns about the
land transaction funded with Mr. Doe’s investment, the Re-
quest also raised potential issues about the evidence con-
cerning job creation. The Request noted that, between the
initial submissions in support of the visa and this most re-
cent petition to remove conditions, Mr. Doe had revised his
projected job-creation figures downward by nearly fifty per-
cent without any explanation. Beyond the particular defi-
ciencies identified, the Request reflects plainly a concern
from the agency that the project had not met any of its pro-
jected benchmarks and that no updated timelines for com-
pletion and operation had been submitted. The agency re-
quested that, in response to its concerns, Mr. Doe provide
further information on whether the project remained a going
concern and whether he had sustained his qualifying in-
vestment in it. It also sought information on revisions to the
anticipated job creation, because the deadlines in the plan
submitted had not been met by the project. It listed a series
of documents that might help satisfy those requests and in-
vited Mr. Doe to submit anything else relevant to these con-
cerns. Mr. Doe responded to the Request with various addi-
tional documents, the sufficiency of which is relevant to this
appeal.
    On January 16, 2015, USCIS denied Mr. Doe’s I-829 peti-
tion to remove the conditions on his residence. The
nine-page denial letter cited two alternate and independent
grounds for the decision: namely, the “at risk” ground, relat-

9   Certified Administrative Record (“CAR”) at 15 (R.32-1).
10                                                No. 17-2040

ed to the suspicious land transaction, and the “job-creation”
ground, related to whether the project met the minimum
statutory requirements for creating new full-time employ-
ment.
                              C.
    Mr. Doe brought this action in the district court, princi-
pally alleging that USCIS’s denial of his application to re-
move the conditions on his residence was arbitrary and ca-
pricious. In 2016, the parties filed cross-motions for sum-
mary judgment. The district court granted the Government
defendants’ motion in a lengthy and thoughtful memoran-
dum opinion and order. The court determined that the agen-
cy’s action was grounded in the evidentiary record. See 5
U.S.C. § 706(2).
    First, with respect to the requirement that the full amount
of a capital investment be placed “at risk,” the court noted
that USCIS had reason to be “deeply concerned about the
legitimacy of [the] land deal and whether [Mr. Doe]’s capital
had, in fact, been used to support job creation activities by
the assisted living facility.”10 The court recounted the docu-
mented facts of the transaction: that the investment was
transferred from the regional center to Elgin Memory Care
three days before the land transaction, but on the day of the
transaction, an intermediate buyer was able to purchase the
land for roughly half the price Elgin Memory Care would
pay to that buyer later the same day. The court noted that
the agency had asked Mr. Doe to provide evidence substan-
tiating the legitimacy of the land deal in the Request for Evi-


10   R.91 at 14.
No. 17-2040                                                 11

dence and that he had provided only summary affidavits
attesting to the deal’s legitimacy and a lack of relationship
between the seller, intermediate buyer, and ultimate buyer.
As the court observed, none of these documents explained
away the fact that the transaction was questionable on its
face. Furthermore, the court held that USCIS was entitled to
discount the affidavits because they were “self-serving,” and
“do little to shed any light on the wide disparity between”
the two same-day purchase prices.11 The court noted that
Mr. Doe had failed to provide the sale documents from the
first transaction, the terms of the deal, or an independent
appraisal. The court found reasonable USCIS’s rejection of
Mr. Doe’s contrary assertion—that the intermediate buyer
was able to “flip” the property for a profit in a matter of
hours.12
    The district court then turned to the job-creation re-
quirement. In response to Mr. Doe’s objection that the agen-
cy’s decision added a requirement that indirect jobs created
by the entity must last longer than two years to be counted,
the court concluded that Mr. Doe had misread the decision.
In the court’s view, when read in context, it was clear that
the agency’s reference to the duration of jobs created applied
only to the direct jobs. With respect to the remaining indirect
jobs, even if they all counted, the district court noted that
they were fewer than the ten required.
   The court also found no merit to Mr. Doe’s objection that
the agency had improperly rejected his employment impact


11   Id.
12   Id. at 15 (quoting CAR at 25).
12                                                No. 17-2040

report. It thought that there were numerous reasons to ques-
tion the reliability of his expenditures, given that construc-
tion had not commenced. The court determined that there
was no error in the agency’s conclusion that Mr. Doe’s im-
pact report was unreliable in light of the totality of the evi-
dence in the record. Finally, the court found no error in the
agency’s rejection of Mr. Doe’s job-creation methodology. It
concluded that Mr. Doe essentially disagreed with the agen-
cy’s refusal to include certain expenditures in its calcula-
tions, but that, in any event, the exclusion of those expendi-
tures was not arbitrary.
     Mr. Doe appealed the district court’s judgment. When his
appeal was first before us, we discovered a conflict of inter-
est with his attorney. Specifically, the attorney on the brief
was the second member of a two-person law firm, and the
principal attorney was under investigation for fraud in the
EB-5 program. See SEC v. Kameli, No. 17-cv-04686 (N.D. Ill.).
Kameli is accused of “defrauding at least 226 immigrant in-
vestors who participated in the EB-5 immigrant investor
program. More specifically, the SEC alleges that Kameli so-
licited over $88 million to invest in a number of new com-
mercial enterprises, only to squander and misappropriate
some of those funds.” Doe v. Nielsen, 883 F.3d 716, 718 (7th
Cir. 2018) (citation omitted). The SEC complaint specifically
identifies Elgin Memory Care as having been part of the
scheme to defraud and sets forth specific allegations of mis-
appropriation of the immigrant investors’ capital. We or-
dered briefing on the subject of a potential conflict between
the Kameli firm’s continued representation of Mr. Doe, and
we subsequently disqualified them from further representa-
tion. Id. at 720. We pause to emphasize that our discussion of
the fraud accusations concerned only the qualifications of
No. 17-2040                                                 13

prior counsel and his law firm to represent Mr. Doe before
us in this proceeding. The allegations are not part of the ad-
ministrative record in this case, and they have no bearing on
our disposition of this appeal.
    Now represented by new counsel, and supported by new
briefing, the merits of Mr. Doe’s appeal are before us.
                              II.
                       DISCUSSION
   Our review of the district court’s decision granting sum-
mary judgment is de novo. St. Joan Antida High Sch. Inc. v.
Milwaukee Pub. Sch. Dist., 919 F.3d 1003, 1008 (7th Cir. 2019).
    Mr. Doe claims that USCIS’s denial of the petition to re-
move the conditions on his residence is arbitrary or capri-
cious and requests that this court therefore hold it unlawful.
See 5 U.S.C. § 706(2)(A).
      When determining whether an agency’s deci-
      sion is arbitrary or capricious, we ask whether
      the agency
              has relied on factors which Congress
              had not intended it to consider, entirely
              failed to consider an important aspect of
              the problem, offered an explanation for
              its decision that runs counter to the evi-
              dence before the agency, or is so im-
              plausible that it could not be ascribed to
              a difference in view or the product of
              agency expertise.
Zero Zone, Inc. v. United States Dep’t of Energy, 832 F.3d 654,
668 (7th Cir. 2016) (quoting Nat’l Ass’n of Home Builders v.
Defs. of Wildlife, 551 U.S. 644, 658 (2007)). Furthermore,
14                                                No. 17-2040

      [t]he Administrative Procedure Act (the
      “APA”) recognizes the importance of judicial
      review when it provides that agencies must
      explain the basis for their decisions, “on all ma-
      terial issues of fact, law, or discretion ... .” 5
      U.S.C. § 557(c)(3)(A). The Supreme Court has
      instructed us to review agency decisions only
      on the basis of the reasons given in the agen-
      cy’s order or opinion. Securities and Exchange
      Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943).
      “Even if the evidence in the record, combined
      with the reviewing court’s understanding of
      the law, is enough to support the order, the
      court may not uphold the order unless it is sus-
      tainable on the agency’s findings and for the
      reasons stated by the agency.” 3 K. Davis, Ad-
      ministrative Law Treatise § 14.29 at 128 (2d ed.
      1980).
Saylor v. United States Dep’t of Agric., 723 F.2d 581, 582 (7th
Cir. 1983) (parallel citations omitted).
    In the present case, because USCIS’s determination was
based on two independent and alternative grounds, we
would have to find error in both determinations in order to
grant relief to Mr. Doe. See BDPCS, Inc. v. FCC, 351 F.3d
1177, 1183 (D.C. Cir. 2003) (“When an agency offers multiple
grounds for a decision, we will affirm the agency so long as
any one of the grounds is valid, unless it is demonstrated
that the agency would not have acted on that basis if the al-
ternative grounds were unavailable.”). We therefore consid-
er whether the agency’s decision may be sustained under
either its at-risk or job-creation rationales.
No. 17-2040                                                               15

    First, Mr. Doe challenges USCIS’s conclusion that he had
not carried the burden to demonstrate that his capital in-
vestment was put “at risk” for the purpose of generating a
return. Specifically, in its Request for Evidence, the agency
noted that there were deficiencies in Mr. Doe’s evidence re-
garding his contribution and its subsequent use. To begin,
the agency faulted him for providing no evidence, in the
form of a loan agreement or otherwise, that the funding enti-
ty released the funds to Elgin Memory Care. Next, although
there was evidence that Elgin Memory Care had purchased a
parcel of land for construction of the facility at a price of $1.1
million, that same property had been purchased earlier the
same day by an intermediate buyer for the cost of only
$630,000. The agency also noted the absence of later tax rec-
ords and of “[u]naltered” financial statements by Elgin
Memory Care.13 To satisfy the requirement, USCIS requested
a series of documents. Among them was “[a]n explanation,
with supporting evidence, to explain the prior sale between”
the first owner of the property and the intermediate buyer,
as well as descriptions of any relationships between the par-
ties to either of the sales.14 Mr. Doe responded to the agen-
cy’s Request for Evidence. Although he provided affidavits
from the intermediate buyer and Mr. Doe’s then-counsel,
Kameli, on behalf of Elgin Memory Care, none provided an
explanation of the first sale and how the property could have
been “flipped” on the very same day.

13 CAR at 14 (R.32-1). The financial statements Mr. Doe provided had
blacked out virtually all information, save the $500,000 contribution from
Mr. Doe. See, e.g., id. at 460 (R.32-9) (bank statement, with series of blank
post-it notes covering all information except the contribution).
14   Id. at 14 (R.32-1).
16                                                         No. 17-2040

   When it ultimately denied the petition, questions regard-
ing the legitimacy of the land transaction were the principal
basis for the agency’s conclusion that the required amount of
capital had not been shown to be “sustained” and “at risk.”15
The denial letter again noted the dubious details of the land
deal, and then considered the evidence submitted in re-
sponse to the Request for Evidence. It concluded that
          [t]he legitimacy of the transaction plays an im-
          portant role in determining whether or not the
          EB-5 capital was truly made available to [Elgin
          Memory Care], as opposed to simply being
          used for purposes unrelated to job creation. In
          this case, the same-day land transaction and
          the doubling of the price cast doubt on the le-
          gitimacy of the transaction. Petitioner did not
          submit sufficient evidence to explain why the
          land was sold on the same day for double the
          price. [16]
It also stated that Mr. Doe had failed to submit objective evi-
dence, such as an independent appraisal, that supports the

15 The agency cited the seminal BIA precedent on “at risk” investments,
Matter of Izummi, 22 I. & N. Dec. 169 (BIA 1998), for the proposition that
the full amount of the investment must be made available to the
job-creating entity. As Mr. Doe notes, the citation is of limited use;
Izummi involved the question whether the investment may be used to
pay lender fees associated with obtaining additional capital for the
job-creating entity. Id. at 178–79. The question here is not whether some
particular expenditure can be credited based on its type, but whether the
transaction was questionable enough to suggest that it was not a legiti-
mate purchase at all.
16   CAR at 6 (R.32-1).
No. 17-2040                                                 17

finding that the price Elgin Memory Care paid approximates
market price. It discounted the sworn statements that the
parties were unrelated under Matter of Ho, 19 I. & N. Dec.
582, 591–92 (BIA 1988), which required “independent objec-
tive evidence” to resolve credibility issues with the alien’s
own statement. The affidavit from the intermediate buyer,
USCIS concluded, was insufficient to “assuage USCIS’s con-
cerns.”17
    As the district court noted, “[i]t is clear from the record
that USCIS was deeply concerned about the legitimacy of
[Elgin Memory Care]’s land deal and whether [Mr. Doe]’s
capital had, in fact, been used to support job creation activi-
ties by the assisted living facility.”18 Mr. Doe makes various
objections to this conclusion. He first complains that USCIS
expanded the evidentiary requirements necessary to satisfy
the statute. Next, he asserts that the agency relied on an “en-
tirely unsupported[] hunch” to deny his claim.19 He also
claims that the denial failed to address the evidence he sub-
mitted. Finally, he contends that the denial improperly re-
quired him to “prove a negative,” i.e., that the land deal did
not run afoul of EB-5 policy.20
    Mr. Doe readily acknowledges, at multiple points in his
brief, that he bears the burden of proving eligibility by a
preponderance of the evidence. Although his brief cites nu-
merous specific objections to the USCIS determination, he

17   Id.
18   R.91 at 14.
19   Appellant’s Br. 13.
20   Id. at 25.
18                                                        No. 17-2040

leaves relatively untouched the basic concern of USCIS: two
years after the initial petition was granted, the project had
met none of the benchmarks identified in the most recent
plans Mr. Doe had submitted. Indeed, it was so far behind
schedule as to raise legitimate questions about whether the
project ever would be completed. In that broader context,21
USCIS reviewed Mr. Doe’s application, in which he claimed
that his capital investment had funded the purchase of prop-
erty for the not-yet-built assisted living facility. USCIS’s own
review of the state’s property database revealed unusual cir-
cumstances—an intermediate buyer able to own the proper-
ty for less than one day and turn a tremendous profit by re-
selling it to Elgin Memory Care. That large, unexplained
profit led USCIS to question whether the transaction was in-
stead a maneuver to skim some of the money off of the in-
vestment, an action resulting in less of Mr. Doe’s investment
being placed “at risk” to create jobs through the new com-
mercial enterprise.
    We think the agency was entitled to conclude that
Mr. Doe’s response to the agency’s concern failed to address
adequately this broader and more fundamental question
raised by USCIS. For example, Mr. Doe makes much of the
fact that the denial repeatedly uses the term “double” to re-
fer to the price paid by Elgin Memory Care relative to the
price paid by the intermediate buyer. He correctly notes that,
of the $1.1 million paid by Elgin Memory Care, $120,000 was

21The agency is both aware, and communicating to aliens, that fraud is a
recurring problem in this visa category. See USCIS, Investor Alert - In-
vestment     Scams     Exploit     Immigrant       Investor    Program,
https://www.uscis.gov/archive/investor-alert-investment-scams-exploit-
immigrant-investor-program (last updated 10/2013).
No. 17-2040                                                                 19

held in escrow for street-related improvements. As a conse-
quence, the profit made by the intermediate buyer was not
$470,000, but $350,000, which is not “double” the amount
paid. His objection, while technically correct, is immaterial:
USCIS was not concerned with the exact percentage but with
the fact that an ownership of only hours had turned such a
significant, and therefore questionable, profit.
    Notably, USCIS did not deny the claim immediately, but
requested evidence to support the legitimacy of the transac-
tion. See 8 C.F.R. § 216.6(c)(2).22 It requested “[a]n explana-
tion, with supporting evidence” of the prior land sale, and a
description of the relationship between the parties to that
sale and the principals of each.23 As the district court noted,
Mr. Doe’s response gave no narrative explanation of how the
intermediate buyer was able to acquire the property and
turn a profit of several hundred thousand dollars with such
speed. Similarly, Mr. Doe’s quibbles about USCIS’s treat-

22   The regulations provide, in relevant part,
           If derogatory information is determined regarding any
           of these issues or it becomes known to the government
           that the entrepreneur obtained his or her investment
           funds through other than legal means (such as through
           the sale of illegal drugs), the director shall offer the alien
           entrepreneur the opportunity to rebut such information.
           If the alien entrepreneur fails to overcome such deroga-
           tory information or evidence the investment funds were
           obtained through other than legal means, the director
           may deny the petition, terminate the alien’s permanent
           resident status, and issue an order to show cause.
     8 C.F.R. § 216.6(c)(2).
23   CAR at 14 (R.32-1).
20                                                           No. 17-2040

ment of the affidavit of the intermediate buyer, which stated
summarily that it had no relationship with any other party,
miss the mark: the ultimate question is not whether USCIS
had to credit that affidavit, but whether Mr. Doe established
that his capital was fully available to Elgin Memory Care
and legitimately used for purposes related to job creation.24
Similarly, USCIS did not require a market analysis or the
original purchase agreement on the property, but simply
stated that Mr. Doe had not met his burden to establish that
the transaction was legitimate. The statements of USCIS are
best read as simply communicating that, even if Mr. Doe
were unable to obtain information from the first seller and
the intermediate buyer, he could have procured other kinds
of evidence.
    The Request for Evidence placed Mr. Doe on notice that
USCIS had legitimate suspicions; he was unable to answer
adequately those suspicions in the evidence he provided.
The burden remained on Mr. Doe to establish that he met all
of the requirements of the program, or, in the words of the
regulation, “to overcome [the] derogatory information” that
USCIS had considered. 8 C.F.R. § 216.6(c)(2). The denial of
Mr. Doe’s petition reflects nothing other than a recognition
that his submissions in response to the Request for Evi-


24 Indeed, the very case on which Mr. Doe relies, Soltane v. United States
Department of Justice, 381 F.3d 143, 151 (3d Cir. 2004), states that “[a]n
agency’s rejection of uncontradicted testimony can support a finding of
substantial evidence” when it provides adequate reasons. Id. (quoting
Tieniber v. Heckler, 720 F.2d 1251, 1254 (11th Cir. 1983)). Here, USCIS did
provide a specific reason for why the affidavit did not speak to its central
concern: how the intermediate buyer was able to turn an astonishing
profit in just hours of ownership.
No. 17-2040                                                              21

dence—which had been specific both in its concerns and in
its list of documents that might address those concerns—had
failed to overcome contrary evidence. USCIS reasonably
concluded, after questioning the single expenditure support-
ed by Mr. Doe’s investment, that significant questions re-
mained unanswered about whether the transaction was le-
gitimate and truly placed the full value of the investment “at
risk” for purposes of job creation. Mr. Doe, who carried the
burden to establish his eligibility, failed to dispel these con-
cerns when given an opportunity. The district court there-
fore did not err in its conclusion that USCIS’s decision was
not arbitrary or capricious with respect to the land transac-
tion and whether Mr. Doe’s investment was placed “at
risk.”25
                              Conclusion
     We affirm the judgment of the district court.
                                                             AFFIRMED




25 Because we have concluded that the first basis relied upon by the dis-
trict court to uphold the agency’s decision was not in error, we need not
consider whether the agency’s alternative basis for denying Mr. Doe’s
petition also was a legally sufficient basis for denial. BDPCS, Inc. v. FCC,
351 F.3d 1177, 1183 (D.C. Cir. 2003).
