Bo Hae Lee v. Mukasey

527 F.3d 1103, 2008 U.S. App. LEXIS 11829, 2008 WL 2252559
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 3, 2008
Docket06-9594
StatusPublished
Cited by8 cases

This text of 527 F.3d 1103 (Bo Hae Lee v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bo Hae Lee v. Mukasey, 527 F.3d 1103, 2008 U.S. App. LEXIS 11829, 2008 WL 2252559 (10th Cir. 2008).

Opinions

McKAY, Circuit Judge.

Petitioner Bo Hae Lee seeks judicial review to determine whether an agency’s statutory construction of one of its operating statutes is legally permissible. Ms. Lee is a citizen of South Korea. She came to the United States as a twelve-year-old in 1999 with her parents on a B-2 nonim-migrant visitor visa. She subsequently applied for and received a change in visa status to the F-l nonimmigrant student category, allowing her to attend a private school approved by the Attorney General of the United States.

The last approved private school Ms. Lee attended was Riverview Christian Academy in Colorado. After her sophomore year, when Ms. Lee was sixteen, the school ceased operations. The school’s closure required Ms. Lee to seek an alternative for schooling. Riverview Christian Academy attempted to assist Ms. Lee in applying to another private school, but the other private schools were too far from her residence, and Ms. Lee understood it would be difficult for her to achieve admittance. Therefore, Ms. Lee attended a local public high school, graduating in May 2005.

In September of 2003, a few months after Ms. Lee’s private school closed, she filed for a status adjustment, which was denied. The following year, on July 14, 2004, the Immigration and Naturalization Service issued a Notice to Appear charging Ms. Lee with being subject to removal because of her remaining in the United States longer than permitted and being in violation of her nonimmigrant status. Ms. Lee again asked for a status adjustment, but the government attorney argued against the adjustment. He explained Ms. Lee could not obtain a status adjustment2 because she could not meet her burden of showing admissibility due to her no longer attending the private school for which she had been approved and attending a public school without reimbursing it for her education.

Even though the Immigration Judge stated that “[m]aybe [Ms. Lee] was not at fault for terminating her studies at the school, and I do think she ended her studies there because she had to,” he ultimately refused to adjust Ms. Lee’s status from nonimmigrant to permanent resident be[1105]*1105cause he found Ms. Lee had not met her burden of proving she was admissible. (R. at 35-36.) His findings and legal conclusions included determining Ms. Lee was a student visa abuser under 8 U.S.C. § 1184(m)3 for terminating her course of study at her private school and undertaking a course of study at a public school. In a cursory decision, the Board of Immigration Appeals affirmed the IJ’s findings on the merits, without reviewing an untimely brief filed by Ms. Lee’s attorney on her behalf.

We review de novo questions of law raised upon petition for review, and we review the agency’s findings of fact under the substantial evidence standard. See Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir.2004); Rubio-Rubio v. INS, 23 F.3d 273, 276 (10th Cir.1994); see also 8 U.S.C. § 1252(a)(2)(D).

The crux of this appeal is a question of law: whether the IJ’s statutory construction of 8 U.S.C. § 1184(m)(2) is correct in concluding Ms. Lee’s actions constituted a termination of her course of study. Ms. Lee argues that the IJ’s statutory construction of § 1184(m)(2) and the BIA’s upholding of that construction are impermissible under the plain language of the statute.4 We agree.

According to § 1255(a), an alien may receive an status adjustment from nonimmigrant to permanent resident if the alien meets the three requirements listed therein. To meet the second requirement, an alien must prove she is admissible. In Ms. Lee’s case, the IJ found she had not met that burden because she was inadmissible under § 1182(a)(6)(G)5 as a student visa abuser. The IJ determined Ms. Lee abused her student visa status because she violated a term or condition of her status under § 1184(m)(2) by terminating her attendance at Riverview Christian Academy, even though he acknowledged that termination may not have been her fault.

Section 1184(m)(2) provides:

An alien who obtains the status of a nonimmigrant under clause (i) or (iii) of section 1101(a)(15)(F) of this title in order to pursue a course of study at a private elementary or secondary school or in a language training program that is not publicly funded shall be considered to have violated such status, and [1106]*1106the alien’s visa under section 1101(a)(15)(F) of this title shall be void, if the alien terminates or abandons such course of study at such a school and undertakes a course of study at a public elementary school, in a publicly funded adult education program, in a publicly funded adult education language training program, or at a public secondary school (unless the requirements of paragraph (1)(B) are met).

§ 1184(m)(2) (emphasis added). Thus, in order to violate her status, Ms. Lee had to “terminate or abandon” her studies at “such a school.”

“The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We begin by analyzing the plain language employed by Congress, and we “must give words their ordinary or natural meaning.” Leocal v. Ashcroft, 543 U.S. 1, 8-9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (internal quotation marks omitted); Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). Importantly, “we assume that the legislative purpose is expressed by the ordinary meaning of the words used.” Am. Tobacco Co., 456 U.S. at 68, 102 S.Ct. 1534 (internal quotation marks omitted).

“When a court reviews an agency’s construction of the statute which it administers,” it must first answer “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If congressional intent is clear from the statutory language, the inquiry is over, and both the court and the agency “must give effect to the unambiguously expressed intent of Congress.” See id. at 842-43, 104 S.Ct. 2778. However,

[i]n making the threshold determination under Chevron, “a reviewing court should not confíne itself to examining a particular statutory provision in isolation.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).

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Bo Hae Lee v. Mukasey
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Bluebook (online)
527 F.3d 1103, 2008 U.S. App. LEXIS 11829, 2008 WL 2252559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bo-hae-lee-v-mukasey-ca10-2008.