Woul Park v. William P. Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WOUL SOO PARK, No. 18-55914
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-09329-
SJO-FFM
WILLIAM P. BARR, Attorney
General; CHAD F. WOLF; KEN
CUCCINELLI ; SUSAN M. CURDA; OPINION
CORINNA LUNA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted November 5, 2019
Pasadena, California
Filed January 7, 2019
Before: Jerome Farris, M. Margaret McKeown, and
Barrington D. Parker, Jr.,* Circuit Judges.
Per Curiam Opinion
*
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.
2 PARK V. BARR
SUMMARY**
Immigration
The panel reversed the district court’s denial of Woul
Park’s petition challenging a decision by the United States
Citizenship and Immigration Services (“USCIS”) denying her
application for naturalization, and remanded, holding that: a
B-2 nonimmigrant whose lawful status has lapsed is
precluded from establishing lawful domicile in California by
operation of federal law; and, therefore, Park’s divorce and
subsequent marriage to a U.S. citizen were valid under
California law, she was properly admitted for permanent
residency, and is entitled to naturalization.
Park, a Korean citizen, married Byung Gug Choi in
Korea, and later came to the United States on a B-2 tourist
visa in 2003. She overstayed her visa and has resided in
California ever since. Park and Choi obtained a valid divorce
under Korean law, and Park later married James Yong Park,
a U.S. citizen, in California and received lawful permanent
residency based on that marriage.
USCIS then denied Park’s application for naturalization.
USCIS found that Park and Choi were California
domiciliaries when their Korean divorce decree was executed
and, as a result, the divorce could not be recognized under
California law. Having determined that Park’s divorce was
invalid, USCIS concluded that her marriage to James Yong
Park was similarly invalid, and therefore, Park was never
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PARK V. BARR 3
lawfully admitted for permanent residency. Accordingly,
USCIS denied Park’s application for naturalization because
she could not satisfy the requirement of having been lawfully
admitted for permanent residency. The district court granted
summary judgment in favor of the Government.
The panel observed that the case turned on whether Park
was “domiciled” in California and that the validity of Park’s
marriage to James Yong Park was governed by California
law. The panel explained that, under California law, domicile
is established by physical presence and an intention to remain
indefinitely. However, the panel further explained that
federal immigration laws impose outer limits on a state’s
freedom to define it. Here, the B-2 tourist visa classification
requires nonimmigrants to maintain a residence in their
country of citizenship with no intention of abandoning it. It
follows, the panel explained, that Congress has not permitted
B-2 nonimmigrants to lawfully form a subjective intent to
remain in the United States; such an intent would inescapably
conflict with Congress’s definition of the nonimmigrant
classification. Therefore, the panel held that Park, as a
nonimmigrant who entered the United States and unlawfully
overstayed her visa, was precluded from establishing
domiciliary intent to remain in the United States. As a result,
her divorce and subsequent marriage were valid, she had been
lawfully admitted for permanent residence, and was thus
entitled to naturalization.
Rejecting the government’s contention that those who
violate the conditions of their visa are no longer subject to the
statutes that preclude them from establishing a lawful
subjective intent to remain, the panel explained that it would
be inconsistent to conclude that Congress sought to preclude
nonimmigrants who comply with federal immigration law
4 PARK V. BARR
from the benefits that flow from state domiciliary status while
permitting nonimmigrants who violate their visa conditions
to share in them.
The panel also addressed In re Marriage of Dick, 15 Cal.
App. 4th 144 (Ct. App. 1993), in which the California Court
of Appeal held that nonimmigrant status does not preclude a
finding of residence under California law for purposes of
obtaining a dissolution of marriage. The panel declined to
read Dick as applicable to this case, explaining that the
California Court of Appeal in Dick interpreted the word
“residence” rather than “domicile,” that the cases turned on
different state codes, and that USCIS and the district court
erred in interpreting “domicile” in line with the interpretation
of “residence” in Dick given the conflict with federal law that
would result from such an interpretation.
COUNSEL
Shirley Wei (argued), Law Office of Shirley Wei, Los
Angeles, California, for Plaintiff-Appellant.
Sergio Sarkany (argued), Counsel for National Security;
Kathleen A. Connolly, Senior Counsel for National Security;
William C. Peachey, Director, District Court Section; Joseph
H. Hunt, Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Defendants-Appellees.
PARK V. BARR 5
OPINION
PER CURIAM:
Woul Park appeals from the district court’s denial of her
petition challenging a decision by the United States
Citizenship and Immigration Services (“USCIS”) denying her
application for naturalization. We review the district court’s
summary judgment order de novo. United States v. Arango,
670 F.3d 988, 992 (9th Cir. 2012). We reverse.
I.
Woul Park, a Korean citizen, married Byung Gug Choi in
Korea in 1988. Park came to the United States on a B-2
tourist visa in 2003. Park overstayed her visa and has resided
in California ever since. Park and Choi jointly filed a
Request for Divorce at the Korean Consulate in California,
and the divorce became valid and final under Korean law as
of May 12, 2009. Following the divorce, Park married James
Yong Park, a United States citizen, in California. Park
applied for and received lawful permanent residency based on
this putative marriage. Park then applied for naturalization in
2014.
USCIS denied Park’s application for naturalization
because it determined that Park’s divorce from Choi was
invalid under California law, thus invalidating her marriage
to James Yong Park. USCIS found that both Park and Choi
were California domiciliaries when their Korean divorce
decree was executed. The agency then concluded that Park’s
purported 2009 divorce would not have been recognized
under California law because California Family Code § 2091
bars the state from recognizing a foreign divorce when both
6 PARK V. BARR
parties are California domiciliaries. This finding set off a
cascade of legal consequences. If Park’s divorce from Choi
was invalid under California law, then Park’s marriage to
James Yong Park was similarly invalid. Park’s application
for permanent residence was dependent on her lawful
marriage to a United States citizen. See 8 U.S.C.
§ 1154(a)(1)(A)(i); Hammad v. Holder, 603 F.3d 536, 537–38
(9th Cir. 2010). Since Park’s marriage was invalid at its
inception, USCIS reasoned, Park could never have been
lawfully admitted for permanent residency. See Matter of
Hosseinian, 19 I. & N. Dec. 453, 454 (BIA 1987). And
finally, since Park had to show that she had been lawfully
admitted as a permanent resident in order to naturalize, see
8 U.S.C. § 1427(a)(1), USCIS denied her application for
naturalization.
The district court reviewed Park’s application de novo.
See 8 U.S.C. § 1421(c). The district court adopted USCIS’s
reasoning and granted summary judgment in favor of the
Government. The court recognized that California’s
interpretation of “domicile” in the family law context
appeared to conflict with other state and federal precedents
that precluded certain nonimmigrants from establishing the
subjective intent to remain in a United States jurisdiction
necessary to lawfully establish “domicile.” Compare In re
Marriage of Dick, 15 Cal. App. 4th 144, 154 (Ct. App. 1993)
(holding that “nonimmigrant status does not preclude a
finding of residence under California law for purposes of
obtaining a dissolution of marriage”) with Toll v. Moreno,
458 U.S. 1, 14 (1982) (explaining that “Congress has
precluded [certain nonimmigrants who are required to
maintain permanent foreign domiciles] from establishing
domicile in the United States”). Regardless, the district court
determined that it was bound by Marriage of Dick as the
PARK V. BARR 7
controlling California precedent, ordered summary judgment
in favor of the Government, and dismissed Park’s action.
We reverse and hold that Park, as a B-2 nonimmigrant
whose lawful status had lapsed, was precluded from
establishing lawful domicile in California by operation of
federal law. Her divorce and subsequent marriage were
therefore valid under California law, she was properly
admitted for permanent residency based on her marriage to a
United States citizen, and she is entitled to naturalization.
II.
This case turns on whether Park was “domiciled” in
California at the time of her divorce. The law of the state in
which the marriage was celebrated governs the validity of a
marriage in the immigration context. Hosseinian, 19 I. & N.
Dec. at 455; see also United States v. Sacco, 428 F.2d 264,
268 (9th Cir. 1970). Park’s marriage to James Yong Park,
which was celebrated in California, is thus governed by
California law. California has adopted the Uniform Divorce
Recognition Act, which was drafted in 1948 by the
Commissioners on Uniform State Laws in order “to
discourage the so-called migratory divorce.” Donald F.
Powell, Foreign Divorce Recognition in California,
16 Hastings L.J. 121, 123 (1964). Under California law, a
divorce obtained in a foreign jurisdiction is invalid if “both
parties to the marriage were domiciled in [California] at the
time the proceeding for the divorce was commenced.” Cal.
Fam. Code § 2091. USCIS and the district court found that
Park and Choi were both California domiciliaries at the time
they obtained their Korean divorce, meaning that their
divorce was of “no force or effect” in California. Id.
8 PARK V. BARR
Under California law, domicile is established by
“(1) physical presence . . . with (2) an intention to remain
there indefinitely.” In re Marriage of Tucker, 226 Cal. App.
3d 1249, 1258–59 (Ct. App. 1991) (citations and quotations
omitted); see also Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 48 (1989) (calling domicile a “widely
used” concept with a “generally uncontroverted” meaning).
Domicile is primarily a creature of state law, but federal
immigration laws impose outer limits on a state’s freedom to
define it. See, e.g., Toll, 458 U.S. at 10–11. In Toll, the
Supreme Court held that the Supremacy Clause precluded
states from imposing burdens on state domiciliaries lawfully
present in the United States on G-4 nonimmigrant visas. Id.
at 17. Where Congress specifically “permitted [the G-4
nonimmigrants] to establish domicile” through the text of the
INA, a state university lacked authority to “impose
discriminatory tuition charges and fees solely on account of
[their] federal immigration classification.” Id.
Here, Congress has done essentially the opposite. The
B-2 tourist visa classification requires nonimmigrants to
maintain a residence in their country of citizenship with no
intention of abandoning it. 8 U.S.C. § 1101(a)(15)(B). It
follows that Congress has not permitted B-2 nonimmigrants
to lawfully form a subjective intent to remain in the United
States; such an intent would inescapably conflict with
Congress’s definition of the nonimmigrant classification.
The Supreme Court has recognized as much. See Elkins v.
Moreno, 435 U.S. 647, 665 (1978) (noting that
nonimmigrants cannot establish domicile where “Congress
expressly conditioned admission . . . on an intent not to
abandon a foreign residence,” and specifically citing
§ 1101(a)(15)(B)); Toll, 458 U.S. at 14 & n.20 (citing the
nonimmigrant classification described at § 1101(a)(15)(B) as
PARK V. BARR 9
one in which “Congress has precluded the covered alien from
establishing domicile in the United States”). Nonimmigrants
on tourist visas are thus “precluded . . . from establishing
domicile in the United States.” Von Kennel Gaudin v. Remis,
379 F.3d 631, 637 (9th Cir. 2004) (quoting Toll, 458 U.S.
at 14 & n.20).
The Government seeks to distinguish these cases by
arguing that they have nothing to say about whether visa
overstays, or persons outside of any lawful status, are
similarly precluded from establishing domicile. Those who
violate the conditions of their visa, the Government argues,
are no longer subject to the statutes that preclude them from
establishing a lawful subjective intent to remain in the
country. Our court has already rejected that interpretation.
See Carlson v. Reed, 249 F.3d 876, 880–81 (9th Cir. 2001)
(explaining that a nonimmigrant precluded from establishing
residency could not gain California residency by violating
visa conditions because then her very presence in the country
would be illegal); see also Von Kennel Gaudin, 379 F.3d
at 638 (quoting Graham v. INS, 998 F.2d 194, 196 (3d Cir.
1993)). It would be inconsistent to conclude that Congress
sought to preclude nonimmigrants who comply with federal
immigration law from the benefits that flow from state
domiciliary status while permitting nonimmigrants who
violate their visa conditions to share in them. By restricting
the domiciliary intent of B-2 nonimmigrants, Congress did
not merely seek to restrict them from establishing a domicile
for a temporary period, after which they could establish
domicile simply by violating the terms of their entry and
staying in the country unlawfully. Rather, “Congress must
have meant aliens to be barred from these classes if their real
purpose in coming to the United States was to immigrate
permanently.” Elkins, 435 U.S. at 665. The Supreme Court
10 PARK V. BARR
found it similarly “clear that Congress intended that, in the
absence of an adjustment of status . . . , nonimmigrants in
restricted classes who sought to establish domicile would be
deported.” Id. at 666. We hold that Park, as a nonimmigrant
who entered the United States pursuant to 8 U.S.C.
§ 1101(a)(15)(B) and unlawfully overstayed her visa—like
those in lawful B-2 status, see Von Kennel Gaudin, 379 F.3d
at 637—was precluded from establishing domiciliary intent
to remain in the United States.
In the face of this federal precedent, USCIS and the
district court still felt bound by California statutory and
decisional law that would seem to demand a contrary result.
The California Court of Appeal, seemingly in contrast to
these federal decisions, has held that “nonimmigrant status
does not preclude a finding of residence under California law
for the purposes of obtaining a dissolution of marriage.” In
re Marriage of Dick, 15 Cal. App. 4th at 154 (reasoning that
a nonimmigrant on a renewable visa “may have the dual
intention of remaining in this country indefinitely by
whatever means including renewal of a visa and of returning
to his or her home country if so compelled”). In Dick, the
California Court of Appeal exercised jurisdiction over a
tourist visa holder in a dissolution proceeding,
notwithstanding a statute requiring the husband to have been
a California “resident” for six months preceding the divorce.
Id. at 156–157.
We generally “follow decisions of the California Court of
Appeal unless there is convincing evidence that the California
Supreme Court would hold otherwise,” Carvalho v. Equifax
Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir. 2010), but we
decline to read Dick as applicable to the new circumstance
addressed in this case. In Dick, the California Court of
PARK V. BARR 11
Appeal interpreted the word “residence” rather than
“domicile,” and the case turned on Cal. Civ. Code § 4530(a)
(1992)1 rather than Cal. Fam. Code § 2091. 15 Cal. App. 4th
at 152–53. We recognize that the Court of Appeal expressly
conflated “residence” with “domicile.” Id. at 153
(“[R]esidency is synonymous with domicile, the latter term
meaning ‘both the act of residence and an intention to
remain. . . .”) (emphasis in original) (citation and quotation
omitted). Regardless, USCIS and the district court erred in
interpreting “domicile” in § 2091 in line with the California
Court of Appeal’s interpretation of “residence” in Dick given
the conflict with federal law that would result from such an
interpretation. In addition to the federal precedents relied
upon above, the California Supreme Court has also
recognized the clear import of Elkins, Toll, and their progeny.
See Martinez v. Regents of Univ. of Calif., 50 Cal. 4th 1277,
1290 (2010) (citing Regents of Univ. of Calif. v. Sup. Ct.,
225 Cal. App. 3d 972, 979 (Ct. App. 1990)) (explaining that
undocumented immigrants cannot establish domicile in order
to qualify for in-state tuition).
In our view, and under the circumstances here, we read
the holding of Marriage of Dick narrowly so as to
accommodate the “preeminent role of the Federal
Government with respect to the regulation of aliens within
our borders.” Toll, 458 U.S. at 10. Under federal law, Park
was precluded from establishing domiciliary intent by virtue
of her status as an out-of-status nonimmigrant initially
present in the United States on a tourist visa.
1
This statutory provision now appears at Cal. Fam. Code § 2320.
12 PARK V. BARR
We REVERSE the order of the district court, and
REMAND for further proceedings consistent with this
opinion.