Hui Ran Mu v. Barr

• Decision Date: 04 September 2019
• Docket Number: 16-73561,Nos. 16-71292,s. 16-71292
• Parties: HUI RAN MU, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

936 F.3d 929

HUI RAN MU, Petitioner,

v.William P. BARR, Attorney General, Respondent.

Nos. 16-71292

16-73561

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2019 Portland, Oregon

Filed September 4, 2019

Christopher W. Helt (argued), The Helt Law Group LLC, Chicago, Illinois, for Petitioner.

Carmel A. Morgan (argued), Trial Attorney; Shelley R. Goad, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX6-104

Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson, Circuit Judges.

N.R. SMITH, Circuit Judge:

Derivative beneficiaries of an alien entrepreneur in the immigrant investor program (EB-5 program), who receive conditional legal permanent resident ("LPR") status, are entitled to the same review rights in removal proceedings as the alien entrepreneur. 8 C.F.R. § 216.6(d)(2). Thus, in removal proceedings, an immigration judge’s ("IJ") failure to review the denial of an I-829 petition (even though the alien is a beneficiary of the petition) is error.

I. Administrative Framework

"The immigrant investor program, or EB-5 program, established by the Immigration and Nationality Act (‘INA’), allows aliens to receive permanent resident status upon the investment of a specified amount of capital and the creation of at least ten full-time jobs in the United States." Spencer Enters., Inc. v. United States , 345 F.3d 683, 686 (9th Cir. 2003) (citing 8 U.S.C. § 1153(b)(5) ). "The purpose of the EB-5 Program is to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital into the U.S. economy." EB-5 Adjudications Policy (PM-602-0083), 2013 WL 2387747, at *1 (Dep’t of Homeland Security May 30, 2013). "In applying for an EB-5 visa, an alien entrepreneur must submit an I-526 petition" establishing that he or she has met the required criteria. Spencer Enters. , 345 F.3d at 686. After approval of the I-526, the alien entrepreneur, the alien spouse, and the alien child may enter the United States as conditional LPRs. Chang v. United States , 327 F.3d 911, 916 (9th Cir. 2003) ; see also 8 U.S.C. § 1186b(a), (f). Thereafter, the "EB-5 requires the [alien entrepreneur] to file a second petition, an ‘I-829,’ between 21 and 24 months after the first petition." Chang , 327 F.3d at 916 ; see also 8 C.F.R. § 216.6(a)(1). Normally, the alien entrepreneur includes his alien spouse and alien child in the I-829 petition. See 8 C.F.R. § 216.6(a). However, in some circumstances, the spouse or child may file his or her own I-829 petition. See id. Thereafter, the United States Citizenship & Immigration Service ("USCIS") "approve[s] the I-829 petition, and grant[s] unconditional LPR status, if it finds that the [alien entrepreneur] made no material misrepresentations in the I-526 petition and complied with the EB-5 requirements." Chang , 327 F.3d at 916 (citing 8 C.F.R. §§ 204.6, 216.6 ).

On the other hand, if the USCIS denies the I-829 petition, the director "shall provide written notice to the alien of the decision and the reason(s) therefor, and shall issue an order to show cause why the alien should not be deported from the United States." 8 C.F.R. § 216.6(d)(2). At that time, the conditional LPR status of the alien entrepreneur, the alien spouse, and the alien child is terminated. See id. ; 8 U.S.C. § 1186b(c)(3)(C). No appeal is available from the denial of the I-829; however, the alien (whose LPR status was terminated) may request review of the denial in his or her removal proceedings. 8 C.F.R. § 216.6(d)(2). At that time, the agency has the burden "to establish by a preponderance of the evidence that the facts and information in the alien’s petition for removal of conditions are not true and that the petition was properly denied." Id.

II. Procedural History & Facts

In 2002, Yankui Mu (Mu’s father) applied for and was granted conditional LPR status as an EB-5 investor. See 8 U.S.C. § 1153(b)(5). In 2004, Yankui, Ling Zhi (Mu’s mother), and Mu conditionally entered the United States as LPRs under the EB-5 program. All three were considered conditional LPRs, though Mu and her mother (who is not a party to this petition) were derivative beneficiaries of Yankui Mu. Two years later (as required by statute), Mu’s father filed an I-829 petition¹ on his behalf and that of his family. The USCIS denied the petition, because Mu’s father failed to demonstrate the job creation requirements for the EB-5 program were met or would be met in a reasonable amount of time. See 8 U.S.C. § 1186b(b).

As a result of the I-829 denial, the USCIS terminated the conditional status of Yankui Mu, Ling Zhi, and Mu on May 21, 2007. Thereafter, the Department of Homeland Security ("DHS") issued a Notice to Appear, charging Mu (and her parents) with removability, based on the termination of their conditional status.

In January 2008, Mu appeared with her parents before an IJ. They admitted the factual allegations in the Notice to Appear and conceded removability. In March 2009, Mu’s father failed to appear at the scheduled hearing and was removed in absentia.²

Because Mu’s father was removed in absentia, the IJ asked Mu and her mother to brief the issue of whether they had standing to challenge the I-829 denial.³ However, in January 2014 (during the scheduled merits hearing), the IJ did not address whether Mu had standing to challenge the I-829 denial or whether the I-829 petition was properly denied. Instead, the IJ addressed only Mu’s request for a motion to continue. The IJ denied Mu’s request for a continuance (1) to file another Form I-526 (a previous application having been denied) and (2) to obtain her passport to show her departure dates from the United States. The IJ then issued its decision, denying Mu’s request for voluntary departure and ordering her removed to China.

Mu appealed to the BIA, arguing that the IJ erred in failing to review the denial of the I-829 petition and in denying her voluntary departure. Mu submitted her passport with her appeal to establish her eligibility for voluntary departure. The BIA dismissed Mu’s appeal, concluding that, under 8 C.F.R. § 216.6(d)(2), only the principal petitioner (Mu’s father) may seek review of the denial of the I-829 petition before an IJ. The BIA also concluded that the entry of the final order of removal against Mu’s father constituted an abandonment of his claims; thus the I-829 petition was unreviewable. The BIA lastly concluded that the IJ did not err in denying Mu a continuance or in finding her ineligible for voluntary departure.

Mu timely petitioned this court to review the BIA’s decision and filed a motion to reconsider with the BIA. In the motion for reconsideration, Mu argued that the BIA should have accepted her passport as evidence that she was eligible for voluntary departure. She also again asserted that an IJ should have reviewed the USCIS’s I-829 decision.

The BIA denied the motion for reconsideration. The BIA concluded that Mu’s arguments were previously made and rejected, or that they were raised for the first time on appeal. Mu timely petitioned this court to review the BIA’s denial. The two petitions are now consolidated for this appeal.

III. Discussion

A. The BIA erred in finding that Mu lacked standing (as a derivative beneficiary) to challenge her father’s I-829 denial.

"We review BIA determinations of purely legal issues regarding the INA de novo." Federiso v. Holder , 605 F.3d 695, 697 (9th Cir. 2010). In interpreting statutes, we defer to the agency only if the statute is ambiguous. Thus, "we first determine if there is any ambiguity in the statute using traditional tools of statutory interpretation." Id. "We may not accept an interpretation clearly contrary to the plain meaning of a statute’s text." Id.

"[O]ur job is to interpret the words consistent with their ‘ordinary meaning at the time Congress enacted the statute.’ " Wisconsin Cent. Ltd. v. United States , ––– U.S. ––––, 138 S. Ct. 2067, 2070, 201 L.Ed.2d 490 (2018) (alteration omitted) (quoting Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ). To determine whether we should defer to an agency’s construction of a statute, we apply the procedure outlined by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, we determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. Second, if "Congress has not directly addressed the precise question at issue," then we must determine "whether the agency’s answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.

Following this precedent, we begin with the plain language of the applicable statute, 8 U.S.C. § 1186b(c)(3), to determine whether a derivative beneficiary has standing to challenge the denial of an I-829 petition. See Eleri v. Sessions , 852 F.3d 879, 882 (9th Cir. 2017). The statute provides in relevant part:

(C) Termination if adverse determination

If the Attorney General determines that such facts and information [in the I-829 petition] are not true, the Attorney General shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien entrepreneur, alien spouse, or alien child as of the date of the determination.

(D) Hearing in removal proceeding

Any alien whose permanent resident status is terminated under subparagraph (C) may request a review of such determination in a proceeding to remove the alien. In such proceeding, the burden of proof shall be on the Attorney General to establish, by a preponderance of the evidence, that the

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