Kahlenberg v. I.N.S.

• Decision Date: 25 June 1985
• Docket Number: No. 84-5196,84-5196
• Citation: 763 F.2d 1346
• Parties: Bernard KAHLENBERG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1346

763 F.2d 1346

Bernard KAHLENBERG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-5196.

United States Court of Appeals, Eleventh Circuit.

June 25, 1985.

Chaykin, Karlan & Jacobs, Sharon B. Jacobs, Coral Gables, Fla., for petitioner.

James A. Hunolt, Office of Immigration Litigation, Civ. Div., Washington, D.C., for respondent.

Petition for Review of an Order of the United States Justice Board of Immigration Appeals.

Before RONEY and KRAVITCH, Circuit Judges, and THOMAS, ^* District Judge.

DANIEL HOLCOMBE THOMAS, District Judge:

An order to show cause issued in July 1981, alleged that petitioner Kahlenberg remained in the United States longer than authorized and was therefore deportable pursuant to Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2). After a deportation hearing, the immigration judge found petitioner deportable and denied his request for relief from deportation based on his application for adjustment of status to that of a lawful permanent resident as an investor. Petitioner appealed to the United States Board

of Immigration Appeals which upheld the finding of deportability and the denial of adjustment status. Appeal to this court followed and the decision below was stayed. We affirm.

FACTS:

Petitioner is a native of Rumania and a citizen of Canada. Petitioner was admitted to the United States as a non-immigrant for business on a B-1 Business Visa in May 1976. In June 1976, petitioner applied for adjustment of status to that of a lawful permanent resident as an investor pursuant to 8 C.F.R. Sec. 212.8(b)(4). The basis of petitioner's application was his investment in B & M Holding, Inc. which had no employees other than petitioner and his wife. B & M Holding, Inc. was doing business as Pan-Can-Am Floral Associates which dealt primarily in horticultural products and employed approximately 20 employees. Petitioner's application indicated that he had invested at least $10,000 in B & M Holding, Inc.

In late 1979, Pan-Can-Am was declared bankrupt after incurring losses exceeding $100,000. B & M Holding, Inc. thereafter became dormant and has not conducted further business.

Petitioner returned to Canada in early June 1979 to attend his daughter's funeral without notifying the immigration authorities. Upon returning to the United States, approximately four days later, petitioner was inspected and questioned about the nature of his trip. After explaining that he resided in Florida and had gone to Canada to attend his daughter's funeral, petitioner was then admitted. On June 20, 1979, petitioner's application for adjustment of status was denied by the District Director of the Immigration Service pursuant to 8 C.F.R. Sec. 245.2(a)(3) on the ground that petitioner's departure from the United States was deemed an abandonment of the application.

In December 1980, petitioner sold his home and used the proceeds to begin a business called Plants, Etcetera. The business was placed in his wife's name. The record indicates that Plants, Etcetera employed four employees, other than petitioner and his wife, and that approximately $20,000 had been invested in the business. This business, however, was not listed on Form I-526.

In July 1981, an order to show cause was issued alleging that petitioner had remained in the United States longer than authorized pursuant to 8 C.F.R. Sec. 214.2(b)(1), 8 U.S.C. Sec. 1251(a)(2). 8 C.F.R. Sec. 214.2(b)(1) provides that any B-1 visitor for business or B-2 visitor for pleasure may be admitted for a period of not more than one year, however, the visitor may be granted extensions of a temporary stay in increments not exceeding six months each. After a hearing, the immigration judge found petitioner deportable based on the fact that petitioner had entered the United States in June 1979 without the proper documents for admission into the United States. Specifically, the immigration judge found that petitioner's admission into the United States, upon his return from Canada, could have been only that of a visitor for business or pleasure (or some other non-immigrant category) and therefore petitioner was subject to the one year time period. The immigration judge concluded that petitioner was deportable since more than one year had elapsed since his return from Canada and petitioner failed to provide evidence of any extension.

The immigration judge upheld the denial of adjustment status on the ground that petitioner was statutorily ineligible to qualify as an investor. The immigration judge found that B & M Holding, Inc. which served as the basis for petitioner's adjustment of status application, was insufficient to establish investor status under either 8 C.F.R. Sec. 212.8(b) or Sec. 212(a)(14) of the Immigration and Nationality Act because: (1) B & M Holding became dormant upon Pan-Can-Am's bankruptcy; (2) B & M Holding did not employ any United States citizen or lawful permanent residents other than the Kahlenbergs; and (3) Petitioner had not been determined to be exempt from the labor certification requirements of Section 212(a)(14) of the Act. The judge further On appeal, the Board of Immigration Appeals dismissed petitioner's appeal on the grounds that petitioner did not establish his eligibility for investor status at the time of the hearing and, further, that petitioner was never determined to be exempt from the labor certification requirements.

found that petitioner's subsequent investment in Plants, Etcetera, did not constitute a continuing enterprise derived from the earlier investment in B & M Holding, Inc.

STANDARD FOR REVIEW

The Board's finding that Kahlenberg was statutorily ineligible for adjustment of status is subject to appellate review for errors of law. Ka Fung Chan v. Immigration and Naturalization Service, 634 F.2d 248 (5th Cir.1981); Pei-Chi Tien v. Immigration and Naturalization Service, 638 F.2d 1324 (5th Cir.1981). It must be noted, however, that the Board's interpretation of INS Regulations deserves great deference and controls unless plainly erroneous or inconsistent with the regulations. U.S. v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977). The promulgating agency's construction of its own regulations is entitled to great weight and may be discounted only if clearly unreasonable. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

LEGAL DISCUSSION

Petitioner contends that the immigration judge and the Board of Immigration Appeals erred in finding him statutorily ineligible for adjustment of status as an investor and denying his application for same.

The basic statutory provision for adjustment of status to that of a permanent resident is 8 U.S.C. Sec. 1255. 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.

As a non-preference visa applicant, see 8 U.S.C. Sec. 1153(a)(8), petitioner's eligibility for an immigrant visa and his admissibility for permanent residence is dependent upon proof of either labor certification, 8 U.S.C. Sec. 1182(a)(14), or exemption from certification, 8 C.F.R. Sec. 212.8(b). 8 C.F.R. Sec. 212.8(b) exempts certain classes of aliens, including "investors", from the statutory labor requirements. At the time Kahlenberg's application for adjustment of status was filed, 8 C.F.R. Sec. 212.8(b)(4) exempted: ¹

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 actually in the process of investing, capital totalling at least $10,000, and who establishes that he has had at least 1 years' experience of training qualifying him to engage in such enterprise.

In order to establish the immediate availability of a visa as required by 8 U.S.C. Sec. 1255, the applicant must show a priority date "on the waiting list which is no later than the date shown in the [Department of State Visa] Bulletin or the Bulletin shows that the numbers for visa applicants in his category are current." 8 C.F.R. Sec. 245.1(e)(1). The fixing of priority dates are governed by 8 C.F.R. Sec. 245.1(e)(2), formerly (g)(2), which provides:

The priority date of an applicant who is seeking the allotment of a non-preference immigrant visa number shall be fixed by the following factors, whichever Due to the demand for visas and changes in the immigration laws, Congress, in 1981, exempted a narrowly defined class of non-preference alien investors from the numerical limitations imposed by Sections 201 and 202 of the Immigration and Nationality Act, 8 U.S.C. Secs. 1151 and 1152. Section 19 of the Immigration and Nationality Amendments Act of 1981, Pub.L. No. 97-116 Sec. 19, 95 Stat. 1621 (1981), provides:

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. Sec. 1182(a)(14) do not apply to him....

The numerical limitations contained in Sections 201 and 202 of the Immigration and Nationality Act shall not apply to any alien who is present in the United States and who, on or before June 1, 1978 --

(1) Qualified as a non-preference immigrant under Section 203(a)(8) of such act (as in effect on June 1, 1978);

(2) Was determined to be exempt from the labor certification requirement of Section 212(a)(14) of such Act because the alien had actually invested, before such date, capital in an enterprise in the United States of which the alien became a...