and Submitted May 14, 2019 Portland, Oregon
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.
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,
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.
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.
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.
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.
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
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
SMITH, CIRCUIT JUDGE.
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.
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).
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