Mwongera v. Immigration & Naturalization Service

• Decision Date: 08 June 1999
• Docket Number: No. 98-6436,98-6436
• Citation: 187 F.3d 323
• Parties: (3rd Cir. 1999) DAVID KINYUA MWONGERA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 323

187 F.3d 323 (3rd Cir. 1999)

DAVID KINYUA MWONGERA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent

No. 98-6436

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted Under Third Circuit LAR 34.1(a) June 8, 1999

July 22, 1999

[Copyrighted Material Omitted]

On Review of a Decision of the Board of Immigration Appeals (I.N.S. No. A73 514 152)

Steven A. Morley, Bagia & Morley, Philadelphia, PA 19106, Attorney for Petitioner

David W. Ogden, Acting Assistant Attorney General, Joan E. Smiley, Senior Litigation Counsel, Steven J. Kim, Attorney, Karen F. Torstenson, Attorney, Michael P. Lindemann, Attorney, Alison M. Igoe, Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, D.C. 20044, Attorneys for Respondent

Before: SLOVITER and MANSMANN Circuit Judges and O'NEILL,^* District Judge

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. Introduction

David Kinyua Mwongera petitions for review of the Board of Immigration Appeals' ("BIA") decision ordering him excluded from the United States on the grounds that he was not in possession of a valid immigrant visa and had procured a visa by fraud. For the reasons set forth hereafter, we will deny the petition for review.

II. Facts and Procedural History

Mwongera is a native and citizen of Kenya. He is the vice- president and sales manager for a family business called One Way Agencies, which exports Kenyan crafts for sale in the United States and other countries. R. at 151-53. On August 1, 1993, Mwongera entered the United States for the first time on a temporary business visitor visa, referred to by the Immigration and Naturalization Service ("INS") as a "B-1" visa. See 8 C.F.R. S 214.2(a)(10). Mwongera obtained the B-1 visa on the basis of his representation to the consulate in Kenya that he was coming to the United States "to promote and market the African goods" that his company sold. R. at 157.

Although this visa was valid only through November 20, 1993, Mwongera secured an extension until February 20, 1994. R. at 333-39. On February 23, 1994, three days after the visa expired, Mwongera left the United States and returned to Kenya. R. at 171. At his hearing before the Immigration Judge, Mwongera testified that during this first visit (of nearly six months' duration) he only took one or two orders but that he also made some cash sales and used the proceeds to pay his hotel and phone bills. R. at 167-68.

Mwongera returned to the United States on March 27, 1994, using the same visa. He requested, and was granted, a six-month stay. He successfully requested a five-month extension of that visa from September 27, 1994 to February 12, 1995. R. at 344. Mwongera testified that he returned to this country on that second trip "[b]ecause I had left merchandise here and I had not accomplished what I came for in 1993 so I still wanted to make sure that I achieved my goal, looking for customers." R. at 172. During this visit, Mwongera incorporated his business in Pennsylvania, obtained a driver's license and social security card, purchased a van for company use, opened bank accounts, and made arrangements to ensure that customers could pay for goods using credit cards. R. at 175-78. He testified that he began selling more goods directly to customers, as opposed to taking orders, and that he would receive more goods from his sister in Nairobi when his stocks began to dwindle. R. at 184. Mwongera left the United States for Lisbon on approximately February 19, 1995 and returned to Kenya thereafter. R. at 298.

After returning to Kenya, Mwongera applied for a renewal of his B-1 visa in March 1995, requesting a stay of five months. He stated on the application that the purpose of his visit was: "Business promotion and attend trade shows." R. at 318. In answer to the question "Have you ever been in the U.S.A.?," Mwongera responded, "yes" and stated that he had been in the United States for "six months in 1993 and six months in 1994." R. at 321. In fact, he had been in the country for five months in 1993 and for a total of eleven months in 1994. Mwongera failed to note his six- week stay in 1995. In response to the application's request that the applicant list the countries where the applicant lived for more than six months during the last five years, Mwongera listed only Kenya. R. at 320.

The renewal was granted on March 20, 1995, and Mwongera arrived in the United States for the third time on March 31, 1995. R. at 316, 318. He stayed in this country until July 5, 1995, at which point he traveled to Lisbon. On attempting to reenter the United States on July 23, 1995, Mwongera was detained by INS officers who questioned him about his intentions and the scope of his business dealings in the United States. Mwongera submitted a thirteen-page handwritten statement. R. at 305-17. The INS then commenced exclusion proceedings.

Following a hearing on October 8, 1996, the Immigration Judge ("IJ") concluded that because Mwongera (1) did not qualify as a temporary visitor for business, and thus did not possess a valid visa and (2) made misrepresentations on the March 1995 visa application that amounted to fraud or willful misrepresentation, he was excludable under INA S 212(a)(7)(A)(i)(I), 8 U.S.C. S 1182(a)(7)(A)(i)(I) (immigrant not in possession of a valid visa) and INA S 212(a)(6)(C)(i), 8 U.S.C. 1182(a)(6)(C)(i)(visa procured by fraud or misrepresentation).

Mwongera appealed the IJ's ruling to the BIA, arguing that he engaged in the proper use of a B-1 visa and that the INS failed to establish that he had an intent to defraud. The BIA, in a decision dated October 22, 1998, rejected both arguments and affirmed the IJ's order of exclusion.

With respect to the issue of the B-1 visa, the BIA found that Mwongera's business had developed into one in which he no longer took orders to be filled in Kenya, but rather sold directly to consumers in the United States. The BIA also found that Mwongera's plans were vague and open- ended with respect to his contemplated stay in the country, and that he had spent twenty of the previous twenty-four months in the United States. Accordingly, the BIA ruled that Mwongera's B-1 visa was not appropriate for his activities because Mwongera was not contemplating a temporary stay and because his business had developed such that his commercial activities had become employment for which he was not authorized. R. at 5-7.

Turning to the fraud issue, the BIA found that Mwongera had significantly understated his time in the United States, noting that the IJ took testimony from INS deportation officer Linda Hoechst, who testified that if she had been presented with accurate representations of Mwongera's prior time in the United States, she would not have automatically granted the request but would have pursued a line of inquiry about Mwongera's activities. R. at 279-81. On the basis of this evidence, the BIA ruled that Mwongera had in fact engaged in willful misrepresentation of material facts on his visa application. R. at 8.

Mwongera timely sought review. We have jurisdiction over this petition for review under 8 U.S.C. S 1105a(a), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Under the regime created by IIRIRA, Mwongera's case falls under the "transitional rules" for judicial review, set forth at IIRIRAS 309(c)(4)(A), which direct that judicial review of exclusion orders is to be conducted pursuant to 8 U.S.C. S 1105a(a) and (c).

Our review of the BIA's findings of fact is limited to whether they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We will reverse the BIA's determinations of fact only if the evidence "was so compelling that no reasonable factfinder could fail to find" for the petitioner. Id. at 483-84. To the extent that the BIA's decision rests on an interpretation of the agency's governing statute on a matter as to which Congress has not expressed a clear intent, we defer to the agency's reasonable interpretation of the statutory language. See INS v. Aguirre-Aguirre, 119 S.Ct. 1439, 1445 (1999).

III. Discussion

Mwongera argues first that the BIA erred in finding that he was not admissible as a visitor for business purposes. Stating that "[t]he INS regulations regarding proper use of a B-1 visa [are] subject to varying interpretations," Pet. Br. at 12, Mwongera contends that his activities in the United States were permissible temporary business activities rather than impermissible local employment under the INA.

The Immigration and Nationality Act ("INA"), describes a non-immigrant business visitor as "an alien (other than one coming for the purpose of study or of performing skilled or unskilled labor . . . ) having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business . . . ." INA S 101(a)(15)(B), 8 U.S.C. S 1101(a)(15)(B). The agency has promulgated regulations that elaborate on the statute. The pertinent regulation states:

An alien is classifiable as a nonimmigrant visitor for business (B-1) or pleasure (B-2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(B), and that:

(1) The alien intends to leave the United States at the end of the temporary stay (consular officers are authorized, if departure of the alien as required by law does not seem fully assured, to require the posting of a bond with the Attorney General in a sufficient sum to ensure that at the end of the temporary visit, or upon failure to maintain temporary visitor status, or any status subsequently acquired under INA 248, the alien will depart from the United States);

(2) The alien has permission to enter a foreign country at the end of the...