Ka Fung Chan v. Immigration & Naturalization Service

• Decision Date: 15 January 1981
• Docket Number: No. 79-2016,79-2016
• Citation: 634 F.2d 248
• Parties: KA FUNG CHAN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 248

634 F.2d 248

KA FUNG CHAN, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 79-2016.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1981.

Rehearing Denied Feb. 11, 1981.

John William Brent, Myron N. Kramer, Atlanta, Ga., for petitioner.

Margaret J. Perry, James P. Morris, John J. Dion, Attys., Govt. Reg. & Labor Section, U. S. Dept. of Justice, Washington, D. C., for respondent.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before HENDERSON, POLITZ and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge:

Ka Fung Chan petitions this court to reverse the Board of Immigration Appeals and order a reopening of his deportation proceedings. For the reasons stated below, we affirm the Board.

Facts

Ka Fung Chan, a citizen and native of China, entered the United States at Honolulu Hawaii on September 26, 1974, on a visa authorizing him to remain in this country until December 25, 1974. In November, 1974, Chan entered into a partnership operating the Hong Ning Company, a Los Angeles, California business importing Chinese specialty items. On February 15, 1975, Chan applied to the INS for adjustment of status to that of a permanent resident, seeking admission as a nonpreference immigrant exempt from the labor certification requirements of 8 U.S.C. § 1182(a)(14) on the ground that he was an alien investor within the meaning of 8 C.F.R. § 212.8(b)(4) (1974). ¹ At the time of the application, nonpreference immigrant visas were available to natives of China. In May of 1975, however, visas became unavailable to natives of China and remained unavailable through the course of the proceedings below.

In October of 1975, Chan ended his association with the Hong Ning Company and invested in Al's Market, a retail grocery store. On October 9, 1975, Chan filed a second request for investor status (Form I-526) based on his investment in Al's Market. On July 30, 1977, Chan was interviewed by an INS immigration examiner. ²

In about March of 1978, Chan ended his ties with Al's Market and, in April of 1978, moved to Atlanta, Georgia, which was the home of his brother, a permanent resident alien. On June 19, 1978, the INS located Chan in Georgia. At that time he advised the INS that he had withdrawn his investments from the Hong Ning Company and Al's Market. On June 30, 1978, Chan's application for adjustment of status was denied. ³

At his deportation hearing on September 20, 1978, Chan conceded his deportability and did not seek to renew his application for adjustment of status. The immigration judge found Chan deportable, by Chan's own admissions, under 8 U.S.C. § 1251(a)(2) as an alien who remained in this country longer than authorized. The immigration judge granted Chan the privilege of voluntary departure until November 21, 1978. Chan did not appeal that decision.

On November 21, 1978, Chan moved to reopen the deportation proceeding. He alleged that since September 20, 1978, he had invested in the New Shanghai Mandarin House, a restaurant in Forest Park, Georgia. In the motion to reopen, he contended that his old and new investments evidenced a "consistent intent" to invest in the United States.

The immigration judge treated the motion to reopen as an application for adjustment of status and concluded that since nonpreference visas were unavailable on the date the motion was filed, Chan failed to establish prima facie eligibility for adjustment of status. The BIA dismissed Chan's appeal. It rejected his argument that he was entitled to a February, 1975 priority date, and stated the reasons for its conclusion as follows (Chan's) present investment in the New Shanghai Mandarin Restaurant is an investment of a totally different nature than his original investment in the Hong Ning Company, an operation with which (he) is no longer associated. Moreover, (Chan) has never had an approved investor application for his previous business. Consequently, he cannot now claim the benefit of a priority date on the basis of his prior, unrelated investment in a company with which he has ended his ties. See generally Matter of Jo, Interim Decision 2412 (BIA 1976).

Record on Appeal at 3.

Issues on Appeal

The parties agree that the most significant issue on appeal is whether the BIA properly held that Chan's motion to reopen constituted a new rather than a renewed application for adjustment of status. In addition, we must decide whether the INS is estopped from deporting Chan, and whether his Fifth Amendment due process rights were violated.

Statutes and Regulations

A brief overview of relevant statutes and regulations illuminates the BIA's reasoning in treating Chan's November 21, 1978 motion to reopen as a new rather than a renewed application. Section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a), provides in pertinent part:

Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(14) Aliens seeking to enter the United States, for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (A) there are not sufficient workers who are able, willing, qualified ... and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed....

According to 8 C.F.R. § 212.8(b), certain classes of aliens, including "investors," are exempt from the statutory labor certification requirements. In 1975, when Chan originally applied for adjustment of status, 8 C.F.R. § 212.8(b)(4) (1974) extended investor exemption from labor certification to:

an alien who establishes on Form I-526 that he is seeking to enter the United States for the purpose of engaging in a commercial or agricultural enterprise in which he has invested, or is actively in the process of investing, capital totalling at least $10,000, and who establishes that he has had at least 1 year's experience or training qualifying him to engage in such enterprise. ⁴

8 U.S.C. § 1255 is the basic statutory provision for adjustment of status to that of a permanent resident. It provides:

The status of an alien who was inspected and admitted or paroled in the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

(Emphasis added.)

Under 8 C.F.R. § 245.2(a)(2) (1980), an application for adjustment of status is not properly filed unless the applicant establishes that he is entitled to a priority date for allotment of a nonpreference visa number in accordance with 8 C.F.R. § 245.1(g)(2) and that a visa is immediately available within the meaning of 8 C.F.R. § 245.1(g)(1). 8 C.F.R. § 245.1(g)(1) provides that "(a)n immigrant visa is considered available ... if the ... applicant has a priority date on the waiting list which is no later than the date shown in the Bulletin or the Bulletin shows that numbers for visa applicants in his category are current." 8 C.F.R. § 245.1(g)(2) governs the fixing of priority dates and provides:

The priority date of an applicant who is seeking the allotment of a nonpreference immigrant visa number shall be fixed by the following factors, whichever is the earliest: ... (ii) the date on which Form I-485 is filed if the applicant establishes that ... the (labor certification provisions of 8 U.S.C. § 1182(a)(14)) do not apply to him....

Finally, under 8 C.F.R. § 245.2, the district director has the authority to make an initial decision approving or denying the application for adjustment of status. 8 C.F.R. § 245.2(a)(4) provides that "no appeal shall lie from the denial of an application by the district director but such denial shall be without prejudice to the alien's right to renew his application in (deportation proceedings) ...."

Standard of Review

Before reaching the merits of Chan's contentions, it is important to set out the applicable standard of appellate review. A denial of a motion to reopen deportation proceedings is a final order of deportation reviewable in the Court of Appeals under 8 U.S.C. § 1105a. Hernandez v. INS, 539 F.2d 384 (5th Cir. 1976). Our review of a denial of a motion to reopen is limited to determining whether the denial was an abuse of discretion. See, e. g., Vazquez-Contreras v. INS, 582 F.2d 334 (5th Cir. 1978); Faddah v. INS, 553 F.2d 491, 492 n.1 (5th Cir. 1977). However, where, as here, the denial rests on a finding that the alien is statutorily ineligible for adjustment of status, the Service's decision is subject to review for errors of law. See Yui Sing Tse v. INS, 596 F.2d 831 (9th Cir. 1979); Marino v. INS, 537 F.2d 686 (2d Cir. 1976). ⁵

Because several of Chan's arguments on appeal involve the question whether the BIA's interpretation of agency regulations was legally erroneous, we state the standard that governs our review of an administrative agency's interpretation of its own regulations. The Supreme Court has consistently held that, in questions involving construction of rules and regulations by the promulgating agency, " 'the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.' " United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d...