Hui Mu v. William Barr

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).