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Mu v. Barr

United States Court of Appeals, Ninth Circuit

September 4, 2019

Hui Ran Mu, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted May 14, 2019 Portland, Oregon

          On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A056-496-104

          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.

          Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson, Circuit Judges.

         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) 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.

          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 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 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 ...


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