Park v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOUN KYUNG PARK, 
Petitioner, No. 07-74420
v.
 Agency No.
A079-144-016
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
November 20, 2008—Honolulu, Hawaii
Filed July 9, 2009
Before: Mary M. Schroeder, Richard A. Paez and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
8527
PARK v. HOLDER 8529
COUNSEL
Ronald T. Oldenburg, Waipahu, Hawaii, for petitioner Youn
Kyung Park.
8530 PARK v. HOLDER
Jesse M. Bless, Office of Immigration Litigation, Civil Divi-
sion, U.S. Department of Justice, Washington, D.C., for
respondent Attorney General Holder.
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 (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 deci-
sion.
1
On March 1, 2003, the INS ceased to exist and its functions were trans-
ferred to the newly created Department of Homeland Security. See
Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1032 n.1 (9th Cir. 2008).
PARK v. HOLDER 8531
Park then (1) requested that the BIA reopen her case and
(2) applied for adjustment of status to lawful permanent resi-
dent on the basis of her marriage to Higa, a United States citi-
zen. As part of Park’s application, Higa filed a Petition for
Alien Relative (or Form I-130 petition) along with an Affida-
vit 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 eli-
gibility 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 Japa-
nese 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
2
Park argued to the IJ and the BIA that Hwang’s affidavit obviated the
need for an affidavit from Higa. However, Park’s counsel withdrew this
argument before us.
8532 PARK v. HOLDER
(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 quota-
tion 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 (1999).
III. Discussion
A. The agency’s interpretation of “domicile” is reason-
able.
“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 immi-
PARK v. HOLDER 8533
grant visa and is admissible to the United States for perma-
nent 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).
[1] 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 becom-
ing 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 admis-
sion . . . 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).
[2] 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).
8534 PARK v. HOLDER
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 gen-
eral 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).
[3] 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 evi-
dence, that the sponsor’s domicile remains in the United
States, provided, . . . that a citizen who is living abroad tem-
porarily 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).
[4] At issue in this appeal is whether intent to maintain a
residence is required for domicile. Section 213a.1 of the regu-
lations 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 con-
flict. We disagree.
PARK v. HOLDER 8535
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. Gon-
zales, 486 F.3d 484, 489 (9th Cir. 2007), and, if not, (2)
“whether the agency’s answer is based on a permissible con-
struction of the statute,” id. at 492 (quoting Chevron, 467 U.S.
at 843). In determining the second step of the Chevron analy-
sis, “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 ini-
tially had arisen in a judicial proceeding.’ ” Id. (quoting Chev-
ron, 467 U.S. at 843 n.11). “Rather, ‘Congress, when it left
ambiguity in a statute meant for implementation by an
agency, understood that the ambiguity would be resolved, first
and foremost, by the agency, and desired the agency (rather
than the courts) to possess whatever degree of discretion the
ambiguity allows.’ ” Id. (citations omitted). “Generally, [w]e
accord Chevron deference where there is binding agency pre-
cedent on-point (either in the form of a regulation or a pub-
lished BIA case).” Ramos-Lopez v. Holder, 563 F.3d 855,
858-59 (9th Cir. 2009) (internal citation and quotation marks
omitted).
[5] Because section 1183a(f) is silent regarding the mean-
ing of domicile, we must assess whether the agency’s inter-
pretation is “ ‘based on a permissible construction of the
statute.’ ” Aguirre-Aguirre, 526 U.S. at 424 (quoting Chev-
ron, 467 U.S. at 843). Here, the agency defined the term “do-
micile” in 8 C.F.R. § 213a.1 to be “where a sponsor has his
or her principal residence . . . with the intention to maintain
that residence for the foreseeable future.” 8 C.F.R. § 213a.1.
In adopting this definition of domicile, the agency explained
that “[t]he term ‘domicile’ is defined in accordance with the
generally accepted definition of the term.” Affidavits of Sup-
port on Behalf of Immigrants, 62 Fed. Reg. 54,346, 54,347
(October 20, 1997) (to be codified at 8 C.F.R. pts. 213a and
8536 PARK v. HOLDER
299). We agree and conclude that the agency’s definition is
based on a permissible construction of the statute.
[6] This court has similarly combined both physical pres-
ence and the intent to remain in giving domicile its “common
law definition” on several occasions. See, e.g., Cuevas-
Gaspar v. Gonzales, 430 F.3d 1013, 1023 (9th Cir. 2005)
(noting “the common law definition of ‘lawful domicile’
means the simultaneous existence of lawful presence and the
lawful intent to remain.”); Kanter v. Warner-Lambert Co.,
265 F.3d 853, 857 (9th Cir. 2001) (“The natural person’s state
citizenship is then determined by her state of domicile, not her
state of residence. A person’s domicile is her permanent
home, where she resides with the intention to remain or to
which she intends to return.”); Carlson v. Reed, 249 F.3d 876,
883 (9th Cir. 2001) (recognizing “The five-year limitation on
the alien’s stay does not preclude the alien from establishing
domicile in the United States, given that domicile is tradition-
ally defined as not only the place where one intends to
remain, but also the place to which, whenever absent, one has
the intention of returning.”); Lepe-Gitron v. INS, 16 F.3d
1021, 1025 (9th Cir. 1994) (noting in the context of section
212(c), that this court had adopted a “definition of domicile
consonant with its common law meaning: that ‘aliens must
not only be physically present here, but must intend to
remain.’ ”). Given our own definition of the word “domicile”
in other contexts, there is nothing unreasonable about the
agency’s definition in 8 C.F.R. § 213a.1.
B. Substantial evidence supports the BIA’s finding that
Higa was not domiciled in the United States.
[7] Because the agency’s definition of domicile is reason-
able, we must next determine whether substantial evidence
supports the BIA’s finding that Higa was not domiciled in the
United States. We conclude that it does.
“The substantial evidence test is essentially a case-by-case
analysis requiring review of the whole record. Substantial evi-
PARK v. HOLDER 8537
dence is more than a mere scintilla and is such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Turcios v. INS, 821 F.2d 1396, 1398
(9th Cir. 1987) (internal citation omitted).
Domicile requires an “intention to maintain that residence
for the foreseeable future.” 8 C.F.R. § 213a.1. The intention
to remain may be established by factors such as: current resi-
dence; voting registration and practices; location of personal
and real property; location of brokerage and bank accounts;
location of spouse and family; membership in unions and
other organizations; place of employment or business; driv-
er’s license and automobile registration; and payment of
taxes. See Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986). If
the applicant’s statements conflict with the evaluated “objec-
tive facts,” then those “statements of intent are entitled to lit-
tle weight.” See id. (internal quotation marks and citations
omitted).
[8] The BIA reviewed this record and determined that the
“objective facts” demonstrated that Higa was not domiciled in
the United States. Substantial evidence supports this determi-
nation. Higa (1) has been working in Japan for more than
three years; (2) has briefly visited the United States during
that time period; (3) has indefinite employment in Japan; (4)
pays taxes in Japan; (5) has a bank account in Japan; and (6)
does not own any property in the United States. These facts
support the BIA’s decision that Higa was not domiciled in the
United States, because he lacked a present intent to live in
Hawaii.
[9] While Higa testified that he intended to return to
Hawaii, he could not provide any specific time to return. He
testified that his goal is to earn money and to gain experience,
in order to open a school in Hawaii. These goals do not reflect
a present intent to live in the United States for the foreseeable
future, but instead are indefinite in time. Because these state-
8538 PARK v. HOLDER
ments conflict with the “objective facts,” such statements are
also entitled to little weight.
C. Park does not have standing to contest Higa’s consti-
tutional claims.
Lastly, Park argues that requiring Higa to be domiciled in
the United States denies Higa due process and equal protec-
tion of the law, by denying Higa’s right to travel and by dis-
criminating against Higa on religious grounds. However, Park
has no standing to contest these constitutional claims.
“As a general rule, a third party does not [have] standing
to bring a claim asserting a violation of someone else’s
rights.” Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d
1042, 1050 (9th Cir. 2009) (citation omitted). “Claims prem-
ised on the government’s treatment of a third-party must sat-
isfy the stringent constitutional standing requirements.”
Shanks v. Dressel, 540 F.3d 1082, 1090 n.9 (9th Cir. 2008)
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62
(1992) (“When . . . a plaintiff ’s asserted injury arises from
the government’s allegedly unlawful regulation (or lack of
regulation) of someone else, much more is needed [to estab-
lish causation and redressability].”)). In United States v.
Flores-Villar, 536 F.3d 990 (9th Cir. 2008), we held that the
defendant-alien could not raise an equal protection claim,
because he lacked standing to pursue rights that belonged to
his father. Id. at 998. The court stated: “[The father] is not a
party, and the record discloses no obstacle that would prevent
him from asserting his own constitutional rights.” Id.[10] Here, as in Flores-Villar, there is nothing in the record
that indicates that Higa does not have the ability to protect his
own interests. See id. Therefore, we conclude that Park lacks
standing to pursue Higa’s constitutional claims.
IV. Conclusion
The agency’s definition of domicile is reasonable. The
BIA’s finding that Higa was not domiciled in the United
PARK v. HOLDER 8539
States, based upon this definition, is supported by substantial
evidence. For judicial review, reversal of the BIA’s determi-
nation is warranted only if “any reasonable adjudicator would
be compelled to conclude to the contrary.” Tawdrus v. Ash-
croft, 364 F.3d 1099, 1102 (quoting 8 U.S.C. § 1252(b)(4)).
The evidence does not compel such a conclusion. Lastly, Park
lacks standing to challenge the agency’s definition of “domi-
cile” on due process and equal protection grounds. The peti-
tion for review is denied.
PETITION FOR REVIEW DENIED.