Hui Mu v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUI RAN MU, Nos. 16-71292
Petitioner, 16-73561
v. Agency No.
A056-496-104
WILLIAM P. BARR, Attorney
General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 14, 2019
Portland, Oregon
Filed September 4, 2019
Before: N. Randy Smith, Paul J. Watford,
and Ryan D. Nelson, Circuit Judges.
Opinion by Judge N.R. Smith
2 MU V. BARR
SUMMARY*
Immigration
Granting in part and denying in part Hui Ran Mu’s
petitions for review of decisions of the Board of Immigration
Appeals, the panel held that derivative beneficiaries of an
alien entrepreneur in the immigrant investor program (EB-5
program), who receive conditional legal permanent residence
status, have the right to seek review of the denial of the I-829
petition to remove the conditions on their permanent
residence status and, therefore, the agency erred in not
reviewing the denial of Mu’s father’s petition.
When Mu’s father was granted conditional lawful
permanent residence as an EB-5 investor, Mu and her mother
(who is not a party to this case) were granted conditional
lawful permanent residence as derivative beneficiaries. Mu’s
father submitted an I-829 petition to remove the conditions on
their permanent residence, but the United States Citizenship
and Immigration Service denied the petition and terminated
the family’s conditional status.
The family was then placed in removal proceedings, and
Mu’s father was later removed in absentia. After the
immigration judge ordered Mu removed to China, Mu
appealed to the BIA, arguing that the IJ erred in failing to
review the denial of the I-829 petition. However, the BIA
concluded that only the principal petitioner (Mu’s father)
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MU V. BARR 3
could seek review of the denial of the I-829 petition before
the IJ.
The panel held that the plain language of 8 U.S.C.
§ 1186b(c)(3)(D)—which provides that “any alien” whose
conditional permanent resident status has been terminated
after the denial of an I-829 petition may request review of
such determination in a removal proceeding—unambiguously
establishes that Congress did not intend to limit such review
to the alien entrepreneur. Thus, the panel concluded that the
agency erred in not reviewing the denial of her father’s
petition.
The panel also concluded that the agency did not abuse its
discretion in denying Mu’s request for a continuance,
explaining that, although the BIA did not expressly address
the factors set forth in Ahmed v. Holder, 569 F.3d 1009 (9th
Cir. 2009), the IJ sufficiently outlined why good cause did not
exist, and the BIA relied on the IJ’s reasons in concluding
that the denial was not clearly erroneous.
Finally, the panel concluded that the BIA did not abuse its
discretion in denying Mu’s motion to reconsider. The panel
rejected Mu’s assertion that the BIA should have considered
new evidence she submitted on appeal, explaining that the
BIA is not required to consider new evidence on appeal and
that a motion for reconsideration does not permit review of
new evidence.
4 MU V. BARR
COUNSEL
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.
OPINION
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
MU V. BARR 5
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
6 MU V. BARR
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
1
An I-829 Form is filed to remove conditions on permanent resident
status. If the I-829 is denied, the conditional LPR status is terminated and
removal proceedings are initiated. See 8 U.S.C. § 1186b.
MU V. BARR 7
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
2
At that time, neither Mu nor her mother seemed to know the location
of Mu’s father.
3
The IJ subsequently severed Mu’s case from her mother’s case,
because Mu’s mother had remarried and had a pending I-130 petition.
8 MU V. BARR
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.’”
MU V. BARR 9
Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070
(2018) (alteration omitted) (quoting Perrin v. United States,
444 U.S. 37, 42 (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
(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.
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.
10 MU V. BARR
(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 facts
and information described in subsection (d)(1)
and alleged in the petition are not true with
respect to the qualifying commercial
enterprise.
8 U.S.C. § 1186b(c)(3) (emphases added).
There is no ambiguity in the plain language of this statute;
Congress has directly spoken to the issue. Congress’s use of
the phrase “[a]ny alien whose permanent resident status is
terminated” was not intended to limit review to the alien
entrepreneur. Even though (1) an alien entrepreneur is the
driving force in bringing over his or her alien spouse and any
alien children and (2) the removal of the conditional basis is
generally tied to the alien entrepreneur, the statute’s plain
language does not bind the alien spouse or alien child to the
alien entrepreneur for review purposes in removal
proceedings.4 Nor does the statutory scheme as a whole seem
4
The statute does not require that the alien entrepreneur and his or her
family be placed in the same removal proceedings. See 8 U.S.C.
§ 1186b(c)(3)(D) (“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.” (emphasis added));
see id. § 1186b(c)(2)(B) (“In any removal proceeding with respect to an
alien whose permanent resident status is terminated under subparagraph
MU V. BARR 11
to indicate that Congress intended to limit who could request
review.
The term “any” is defined as “concerning a being or thing
of the sort named, without limitation as to which.” Oxford
English Dictionary (2d 1989); see also Any, Merriam-
Webster, http://www.merriam-webster.com/dictionary/any
(last visited August 13, 2019) (defining any as “one, some, or
all indiscriminately of whatever quantity”). By its own terms,
“any” is not limited to one being or thing (i.e., the alien
entrepreneur). The surrounding provisions reinforce this
interpretation, as it limits “any alien” to those who have had
his or her “permanent resident status terminated.” Because
the termination of the permanent resident status is not limited
to the alien entrepreneur, an interpretation that “any alien” is
limited to “alien entrepreneur” would render the additional
qualifier superfluous. See United States v. Neal, 776 F.3d
645, 652 (9th Cir. 2015) (We “interpret the statute as a whole,
giving effect to each word and making every effort not to
interpret a provision in a manner that renders other provisions
of the same statute inconsistent, meaningless or superfluous.”
(alterations omitted)).
Throughout the statute, Congress used the term “any
alien” in the context of termination and removal. In
§ 1186b(b)(2) and § 1186b(c)(3)(D), the statute allows “[a]ny
alien whose permanent resident status is terminated,” to
request a review of the termination. The statute does not
define “any alien.” See § 1186b. However, it does limit “any
alien” to the alien entrepreneur, the alien spouse, and the alien
(A), the burden of proof shall be on the alien to establish compliance with
the conditions of paragraphs (1)(A) and (1)(B).” (emphasis added)).
12 MU V. BARR
child, “whose permanent residence status is terminated.” See
§ 1186b(b)(1)(C), (c)(3)(C).
Congress specifically used “any alien” when discussing
removal proceedings; whereas it used “alien entrepreneur”
when it defined the alien entrepreneur’s obligations under the
statute.5 Compare 8 U.S.C. § 1186b(c)(1) with 8 U.S.C.
§ 1186b(c)(2)(B). Congress unambiguously meant that the
different classes of aliens have different rights and
responsibilities under these provisions. This reading is clear
from the text and context of the statute.
This broader interpretation is also supported by 8 U.S.C.
§§ 1186a and 1227(a)(1)(D). First, under § 1186a,6 the
statute similarly provides that “any alien” spouse or child has
standing to challenge the termination of his or her conditional
permanent resident status. See §§ 1186a(b)(2), (c)(3)(D).
Second, § 1227(a)(1)(D)7 provides that “[a]ny alien” whose
conditional “permanent resident status” has been terminated
(under either §§ 1186a or 1186b) is deportable. Again, it is
5
Congress similarly extended review to the alien entrepreneur, alien
spouse, and alien child in § 1186b(c)(2)(B) (even though it uses the term
“an alien” and “the alien” rather than “any alien”). Section
1186b(c)(2)(B) provides that an alien entrepreneur, alien spouse, or alien
child may establish that the EB-5 requirements were met (even though
they were requirements only of the alien entrepreneur).
6
Section 1186a is applicable to alien spouses who entered the United
States through a qualifying marriage, such as a spouse of a United States
citizen, as a fiancée or fiancé of a United States citizen, or as a spouse of
an LPR. 8 U.S.C. § 1186a(h)(1). An alien child enters into the United
States based upon the foregoing “qualifying marriage.” Id. § 1186a(h)(2),
(3).
7
Section 1227 outlines the list of deportable aliens.
MU V. BARR 13
clear that Congress’s unambiguous intent was that these
provisions apply to “any alien” regardless of whether the
alien is the principal alien or the beneficiary. If Congress
wanted to limit review to just an “alien entrepreneur,” it could
have done so. The phase “any alien” should not have several
different meanings. Because Congress’s intent was clear, we
need not reach the second step of Chevron.8
Even if we were to give deference to the government,
8 C.F.R. § 216.6(d)(2) does not actually make these
suggested limitations.9 Instead, § 216.6(d)(2) explains that,
after denial, “[t]he alien’s lawful permanent resident status
and that of his or her spouse and any children shall be
terminated as of the date of the director’s written decision.”
Further, “the alien may seek review of the decision in
deportation proceedings.” Id. At first blush, “the alien” may
apply only to the alien entrepreneur. However, although
§ 216.6(a)(1) allows for the “entrepreneur’s spouse and
children” to be included in the alien entrepreneur’s Form I-
829, “[c]hildren who have reached the age of twenty-one or
8
The government asserts that the term “any alien” is ambiguous, in
part, because the “statutory scheme requires the alien entrepreneur, in
most circumstances, to file the petition to remove conditions.” Even
though the government’s argument may be logical and has some appeal,
ambiguity cannot be created where none exists in the plain language of the
statute. See Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168, 1173 (9th
Cir. 2017), cert. granted, 138 S. Ct. 1165 (2018), and aff’d, 139 S. Ct. 22
(2018) (noting that “declaring that multiple reasonable interpretations [of
a statute] exist does not make it so”).
9
The government also cites to 8 C.F.R. § 103.3(a)(1)(iii)(B), which
provides that an “affected party” excludes a “beneficiary of a visa
petition.” However, that regulation is not applicable here, because it
applies to appeals, see id., which are excluded from I-829 denials, see
8 C.F.R. § 216.6(d)(2).
14 MU V. BARR
who have married during the period of conditional permanent
residence and the former spouse of an entrepreneur, who was
divorced from the entrepreneur during the period of
conditional permanent residence, may be included in the alien
entrepreneur’s petition or may file a separate petition.” Id.
In other words, under the plain language of the regulation, the
twenty-one-year-old alien child who filed his or her own I-
829 petition would be “the alien” that could seek review.
However, under the government’s reading, the same twenty-
one-year-old alien child who was included in the alien
entrepreneur’s I-829 petition could not seek review, even
though the facts underlying either I-829 petition would be
identical. Thus, even under the agency’s own regulation, it
seems “the alien” cannot be so limited. It is illogical to
suggest that this twenty-one-year-old alien child should have
different rights to seek review depending on whether that
individual chose to file his or her own petition.10
Nothing in § 1186b suggests that the phrase “any alien”
is limited to the alien entrepreneur. Thus, Mu had the right to
seek review of the I-829 denial, and the agency erred in not
reviewing the denial of her father’s I-829 petition.11
10
This provision makes even less sense when applied to a divorced
alien spouse. The government’s reading would give more rights to a
divorced alien spouse than those of an alien spouse.
11
The government also argues that Mu’s father’s effective
abandonment of his review of the I-829 denial preludes her from
challenging the I-829 denial in the first instance. As discussed, the plain
language of the statute does not require that a petition for review is limited
to an alien entrepreneur. Thus, we need not address this argument. Nor
do we need to address Mu’s petition appealing the denial of her motion to
reconsider as to this issue.
MU V. BARR 15
B. The BIA did not fail to apply the applicable standard
of review to an IJ’s denial of a continuance.
Before the IJ, Mu requested voluntary departure; to
support her application for voluntary departure, she requested
a continuance to allow her time to present evidence
(specifically her passport). The IJ denied the request to
continue, and the BIA affirmed.12
To determine whether the BIA abused its discretion in
denying a motion to continue, we look to the factors set forth
in Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).
The Ahmed factors “includ[e]: (1) the nature of the evidence
excluded as a result of the denial of the continuance, (2) the
reasonableness of the immigrant’s conduct, (3) the
inconvenience to the court, and (4) the number of
continuances previously granted.” Id. “[T]he BIA abuses its
discretion when it fails to state its reasons and show proper
consideration of all factors when weighing equities and
denying relief.” Id. at 1014 (citation omitted).
In this case, the IJ noted that (1) Mu was informed on
February 11, 2013, through counsel, “that her hearing on
January 9, 2014 would be on the status of the I-526, and if it
was denied [Mu] was to be prepared to file and state any and
all relief before the Court”; (2) in January 2014, Mu “stated
12
Mu did not petition for the review of the merits of the IJ’s denial of
post-conclusion voluntary departure; instead, she only argued that the IJ
abused its discretion in denying the motion to continue to allow her to
establish eligibility. Thus, she waived any challenge to the merits of
whether she was eligible for voluntary departure. See Martinez-Serrano
v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996). Therefore, because the
denial of the motion to continue was not an abuse of discretion, Mu is not
eligible for post-conclusion voluntary departure.
16 MU V. BARR
that she would be seeking no other relief other than post-
conclusion voluntary departure”; (3) Mu was allowed
additional time during the hearing for her counsel to inform
her of the requirements of voluntary departure; and (4) “[i]t
is [Mu’s] burden to show that she is eligible for post-
conclusion voluntary departure, and by her own admission
she left the United States in 2007 during the summer months
and returned to either China or Singapore.” The IJ then
denied the motion, concluding that no good cause existed to
continue the matter.
Although the BIA did not expressly address the Ahmed
factors, the IJ sufficiently outlined why good cause did not
exist. See Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir.
2008) (“The question whether denial of a continuance in an
immigration proceeding constitutes an abuse of discretion
cannot be decided through the application of bright-line rules;
it must be resolved on a case by case basis.” (citation
omitted)). In concluding that the IJ’s decision was not clearly
erroneous, the BIA relied upon the IJ’s statement of reasons.
See Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008).
Beyond the fact that this case had been continued for over six
years,13 the IJ’s conclusion that Mu did not meet the required
one-year of continual residence (based on Mu’s own
admissions) is sufficient for the IJ to have reasonably denied
the continuance. See 8 U.S.C. § 1229c(b)(1)(A). Further, Mu
did not challenge this conclusion in her opening brief. See
Martinez-Serrano, 94 F.3d at 1259–60 (noting that issues not
13
From the time of the I-829 denial until Mu’s merits hearing, Mu
and her mother were granted several continuances.
MU V. BARR 17
raised in the opening brief are deemed waived). Thus, there
was no abuse of discretion in this case.14
PETITIONS FOR REVIEW GRANTED, in part,
DENIED, in part. The parties shall bear their own costs on
appeal.
14
The BIA did not abuse its discretion in denying Mu’s motion to
reconsider. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.
2004), amended sub nom. Lara-Torres v. Gonzales, 404 F.3d 1105 (9th
Cir. 2005) (standard of review). Mu asserts that the BIA should have
considered her passport, which she submitted on appeal to establish
eligibility for post-conclusion voluntary departure. However, the BIA is
not required to consider new evidence presented on appeal. See 8 C.F.R.
§ 1003.1(d)(3)(iv) (The BIA “will not engage in factfinding in the course
of deciding appeals.”). Further, a motion for reconsideration does not
permit review of new evidence, such as Mu’s passport, to establish a
factual basis for relief. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1180
& n.2 (9th Cir. 2001) (en banc) (contrasting motions to reopen with
motions for reconsideration).