Kyung Park v. Holder

• Decision Date: 09 July 2009
• Docket Number: No. 07-74420.,07-74420.
• Parties: Youn KYUNG PARK, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

572 F.3d 619

Youn KYUNG PARK, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-74420.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 20, 2008.

Filed July 9, 2009.

Ronald T. Oldenburg, Waipahu, HI, for petitioner Youn Kyung Park.

Jesse M. Bless, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for respondent Attorney General Holder.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-144-016.

Before MARY M. SCHROEDER, RICHARD A. PAEZ and N. RANDY SMITH, Circuit Judges.

OPINION

N.R. SMITH, Circuit Judge:

Giving deference to the reasonable interpretation of the term "domicile" by the Board of Immigration Appeals (BIA), see Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), substantial evidence supports its determination that Joseph Higa ("Higa") did not qualify as a sponsor, because he was not domiciled in the United States as required by 8 U.S.C. § 1183a(f). Therefore, Youn Kyung Park ("Park") failed to demonstrate her eligibility for adjustment of status due to her lack of a qualifying sponsor. We also hold that Park lacks standing to pursue Higa's constitutional claims. Accordingly, we deny the petition for review.

I. Factual Background

Park is a native and national of South Korea. Park entered the United States as a nonimmigrant visitor on October 13, 1998. Park subsequently received a student visa, but failed to maintain her status as a student. The former Immigration and Naturalization Service (INS)¹ charged Park with removability. The Immigration Judge (IJ) found that Park was removable as charged because she failed to maintain her student status, but granted Park two weeks to voluntarily depart the United States. On appeal, the BIA summarily affirmed the IJ's decision.

Park then (1) requested that the BIA reopen her case and (2) applied for adjustment of status to lawful permanent resident on the basis of her marriage to Higa, a United States citizen. As part of Park's application, Higa filed a Petition for Alien Relative (or Form I-130 petition) along with an Affidavit of Support (Form I-864) in order for Park to receive status as an "immediate relative" spouse. In support of Higa's I-130 petition, Luke Hwang also filed an I-864 Affidavit of Support as a joint sponsor.² Initially, the BIA denied Park's motion to reopen, because she failed to voluntarily depart. After filing a petition for review of the denial of the motion to reopen, our court remanded the case to the BIA to determine when Park's voluntary departure time commenced (thereby providing Park additional time to apply for adjustment of status). Upon remand, the BIA granted the motion to reopen and allowed Park to apply for adjustment of status before the IJ. After a hearing, the IJ determined that Park failed to establish her eligibility for adjustment of status because Higa (her husband and sponsor) was not domiciled in the United States. The BIA upheld the IJ's decision, which is the subject of this appeal.

In determining that Higa was not domiciled in the United States, the IJ applied the definition of domicile contemplated by 8 C.F.R. § 213a.1. After considering the evidence, the IJ found that, shortly after marrying Park in February 2002, Higa moved to Japan. Higa worked in Japan as an assistant bar manager. In June 2002, Higa returned to Hawaii. In the summer of 2003, Higa returned to Japan to teach English for a Japanese company and has lived there ever since. The Japanese government issued Higa a "family working visa," which is issued to long-term residents of Japan. At the time of the adjustment of status hearing in 2001, Higa had resided in Japan for three years, owned no property in the United States (Park lived rent free in her employer's apartment), and (though maintaining a joint bank account with Park in Hawaii) had a personal bank account in Japan. Higa also stated that he had not voted in Hawaii.

During this three year period, Higa visited Park in Hawaii three times: once for a week; the second time for three to four days; and the last time to testify before the IJ. Higa's long-term plan was to return to Hawaii and open a business, but he could not identify specific dates for his return. On the basis of the foregoing, the IJ and the BIA found that Higa was not domiciled in the United States.

II. Standard of Review

The BIA here conducted its own review of the evidence and law, rather than adopting the IJ's decision. Therefore, the court's "review is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted." Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (internal quotation marks omitted).

We review de novo an agency's interpretation of a statute. Cervantes-Gonzales v. INS, 244 F.3d 1001, 1004(9th Cir. 2001). We apply Chevron deference and uphold permissible interpretations of the statute by the agency. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

III. Discussion

A. The agency's interpretation of "domicile" is reasonable.

"The status of an alien who was inspected and admitted or paroled into 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." 8 U.S.C. § 1255(a). In this appeal, the parties only address the second requirement of § 1255(a).

To be eligible for an immigrant visa, an alien must file a visa petition pursuant to 8 U.S.C. § 1154. The visa petition is the alien's opportunity to show evidence that she may be classified in one of the family or employment categories listed in 8 U.S.C. § 1153. When applying for an immigrant visa, an alien must also demonstrate admissibility pursuant to 8 U.S.C. § 1182. This provision renders aliens inadmissible for several reasons, including an indication that the alien is likely to become a public charge. Id. at § 1182(a)(4). To avoid becoming a public charge, § 1182 requires that the alien have a sponsor. It states in pertinent part:

Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status is likely at any time to become a public charge is inadmissible.... unless ...

(ii) the [sponsor] petitioning for the alien's admission ... has executed an affidavit of support described in section 1183a of this title with respect to such alien.

8 U.S.C. § 1182(a)(4).

Section 1183a(f) requires that the sponsor: (1) be a United States citizen, (2) be 18 years old, (3) be domiciled in the United States, and (4) have an annual income equal to at least 125 percent of the Federal poverty line. See 8 U.S.C. § 1183a(f).

Although the statute does not define domicile, the Attorney General promulgated a regulation defining it as:

[T]he place where a sponsor has his or her principal residence, as defined in section 101(a)(33) of the Act, with the intention to maintain that residence for the foreseeable future.

8 C.F.R. § 213a.1. Section 101(a)(33) of the INA defines "residence" as: "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." INA § 101(a)(33); 8 U.S.C. § 1101(a)(33).

Although a sponsor must be domiciled in the United States, a person may qualify as a sponsor if he is not currently living in the United States. However, the sponsor must only be temporarily residing abroad. 8 C.F.R. § 213a.2(c)(1)(ii) requires the sponsor to prove, "by a preponderance of the evidence, that the sponsor's domicile remains in the United States, provided, ... that a citizen who is living abroad temporarily is considered to be domiciled in the United States if the citizen's employment abroad meets the requirements of section 319(b)(1) of the Act." Additionally, if the sponsor is not domiciled in the United States, the sponsor can submit a Form I-864 if the sponsor proves, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the alien's admission or adjustment of status. 8 C.F.R. § 213a.2(c)(1)(ii)(B).

At issue in this appeal is whether intent to maintain a residence is required for domicile. Section 213a.1 of the regulations requires both a residence and an intent to maintain that residence for the foreseeable future. Residence requires only a place of general abode without regard to intent. See 8 U.S.C. § 1101(a)(33). Park argues that the terms are therefore in conflict. We disagree.

When we review the Attorney General's interpretation of a provision of the Immigration and Nationality Act (INA), we apply the two-step inquiry set forth by the Supreme Court in Chevron. We ask (1) "whether Congress has directly spoken to the precise question at issue," Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 (9th Cir.2007), and, if not, (2) "whether the agency's answer is based on a permissible construction of the statute," id. at 492 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). In determining the second step of the Chevron analysis, "we `need not conclude that the agency construction was the only one it permissibly could have adopted ..., or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.'" Id. (quoting Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. 2778). "Rather, `Congress, when it left ambiguity in a statute meant for implementation by an agency, understood...