Joseph Shoo Hwan Kim v. Edwin Meese, Iii, Attorney General of the United States

810 F.2d 1494, 1987 U.S. App. LEXIS 2466

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 1987
• Docket: 85-6067
• Status: Published

Opinions

WALLACE, Circuit Judge:

Kim appeals from a summary judgment entered by the district court in favor of the government which had rescinded his permanent resident alien status. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

Kim, a citizen of the Republic of Korea, was admitted to the United States in 1972 as a nonimmigrant visitor for business. By 1974, he had invested $36,000 in “Home of Gifts,” a retail store in Stockton, California. In 1974, Kim applied for an adjustment of status, from nonimmigrant to non-preference immigrant, based on his status as an investor. Under Immigration and Naturalization Service (INS) regulations in force at that time, an alien was exempt from the INS’s normal labor certification requirement, 8 U.S.C. § 1153(a)(7); 8 U.S.C. § 1182(a)(14), if he had invested $10,000 in an American commercial enterprise and had one year’s prior training or experience in operating such an enterprise, 8 C.F.R. § 212.8(b)(4) (1974). Kim was duly granted a nonpreference immigrant visa on the basis of his investor status.

In April 1975, Kim filed an application under section 245(a) of the Immigration and Naturalization Act (the Act), 8 U.S.C. § 1255(a), to adjust his status from non-preference immigrant to permanent resident based on his status as a business investor. The INS interviewed Kim in September of 1977 and found him eligible for the change in status. On March 14, 1978, the INS granted this adjustment to permanent resident alien status.

In 1980, the INS discovered that Kim had sold his interest in “Home of Gifts” several months before the INS granted his adjustment of status. The INS notified Kim that it intended to rescind his adjustment in a proceeding under section 246 of the Act, 8 U.S.C. § 1256, on the ground that, without a qualifying investment, Kim was not eligible at the time his application was approved for the adjustment of status granted.

Kim requested a hearing before an immigration judge. At this hearing, Kim conceded that he had divested his interest in “Home of Gifts” on January 1, 1978. He also admitted that he never procured a labor certification. The immigration judge ordered the rescission of Kim’s permanent resident status, ruling that under 8 U.S.C. § 1182(a)(14), Kim had not been eligible for adjustment on March 14, 1978, because on that date he no longer owned the business that had been the basis for his application for adjustment of status. Although the regulations also permit application of the investor exemption if the alien is “actively in the process of investing,” 8 C.F.R. § 212.8(b)(4) (1986), the immigration judge determined that Kim had not shown the ongoing and systematic plan required to prove that he intended to reinvest.

Kim then appealed to the Board of Immigration Appeals (BIA), where he made two arguments. First, he again argued that he was actively in the process of investing at the time of his adjustment of status. The BIA found that Kim had presented no evidence to support this claim. Second, Kim argued that even if he did not qualify for the investor exemption, the INS still had to prove that he intended to engage in labor in the United States and thus that he was ineligible for adjustment of status on the date the adjustment was granted. The BIA implicitly acknowledged that Kim would have been eligible for adjustment of status if he had no intent to work. However, it applied the INS’s standard presumption that incoming immigrants of suitable age and physical condition will seek employment and placed on Kim the burden of proving lack of intent as an affirmative defense. The BIA concluded that Kim had not met this burden and pointed out that Kim’s claimed lack of intent was, in any case, belied by his subsequent employment in the United States.

Kim then brought the present action in the district court, where he abandoned the argument that he was actively in the process of investing. Instead, he argued that the BIA had improperly shifted to him the burden of proving that he had no intent to work. The district court agreed with the INS and held that, once Kim conceded his ineligibility for the investor exemption, the burden shifted to him to prove that he had no intent to work in the United States on the date his status was adjusted. Accordingly, the district court granted summary judgment to the government. We review the district court’s summary judgment de novo. Barring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

II

The standard by which the INS must prove that the alien was not eligible for the adjustment of status granted him under INA § 245, 8 U.S.C. § 1255, is beyond dispute. In Waziri v. INS, 392 F.2d 55 (9th Cir.1968), we held that in section 246 rescission proceedings, the INS bears the burden of proving the facts it alleges by “clear, unequivocal, and convincing evidence.” Id. at 57.

The question now before us is what the INS must prove in order to rescind Kim’s permanent resident status. In essence, the INS argues that it must only prove that Kim was ineligible for adjustment of status on the ground he asserted in his application. Kim argues that the INS must prove that he was ineligible on any ground he now asserts.

The language of section 246 itself, unfortunately, is not helpful in resolving this issue. It could be interpreted to support either party. The section merely states that the Attorney General shall rescind the adjustment of status of a person whom he concludes “was not in fact eligible for such adjustment of status.” 8 U.S.C. § 1256. Nor does the legislative history of the Act shed any light on the issue: the House Report on the bill employs the same ambiguous language as the statute. H.R.Rep. No. 1365, 82nd Cong., 2d Sess., at 63 (1952), U.S.Code Cong. & Admin.News 1952, p. 1653.

We look next to the INS’s treatment of the statute, since an agency’s interpretation of a statute it is responsible for administering is entitled to substantial deference. Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). The INS’s pronouncements on the issue are not entirely clear. The regulations promulgated pursuant to section 246 refer only to a person “not in fact eligible for the adjustment of status made in his case.” 8 C.F.R. § 246.1 (1986) (emphasis added). The INS’s Operations Instructions make reference to “an alien ... not in fact eligible for the adjustment of status granted to him.” INS, Operations Instructions, § 246.1 (1985) (emphasis added). When these terms are examined in the context of the INS’s procedures for adjustment of status, however, they give some support to the government’s position that the INS interprets section 246 to permit rescission of adjustment of status when it appears that the alien was not eligible for adjustment on the grounds he had asserted in his application. If this is true, then we should defer to that agency interpretation.

An alien wishing to secure permanent resident status under 8 U.S.C. § 1255 must first make out an application to the INS and show that he meets the statutory requirements for eligibility. 8 U.S.C. § 1255(a). The alien here bears the burden of proof. Diric v. INS, 400 F.2d 658, 660-61 (9th Cir.1968), cert. denied, 394 U.S. 1015, 89 S.Ct. 1633, 23 L.Ed.2d 41 (1969). He also must be successfully interviewed by the INS. 8 C.F.R. § 245.8 (1986). Even if the alien succeeds in making the required showing of eligibility, however, the INS’s decision to grant an adjustment of status is purely discretionary. Patel v. Landon, 739 F.2d 1455, 1457 (9th Cir.1984); see 8 U.S.C. § 1255(a). Adjustment of status is an extraordinary remedy to be granted only in meritorious cases, and the alien “has the burden of persuading the [INS] to exercise [its] discretion favorably.” Chen v. Foley, 385 F.2d 929, 934 (6th Cir.1967), cert. denied, 393 U.S. 838, 89 S.Ct. 115, 21 L.Ed.2d 109 (1968). Every adjustment of status, therefore, is predicated upon both a showing of eligibility and a favorable exercise of agency discretion.

Against the background of this procedural system, the government’s argument is premised upon the not illogical proposition that when the INS’s regulations speak of an alien “not in fact eligible for the adjustment of status made in his case,” 8 C.F.R. § 246.1 (1986) (emphasis added), the agency was interpreting section 246 as requiring it to address only the grounds for eligibility that the alien asserted in his adjustment of status application and interview. This would follow from the proposition that the agency will exercise its discretion only upon the grounds that the alien, who has the burden of proof, has cited in making his request in his application and during his subsequent interview. An adjustment of status, therefore, could not have been based on a ground not cited by the alien because the requisite exercise of agency discretion on that issue is absent.

The stronger argument for affirmance, however, is based on policy grounds. To hold otherwise would require the INS to bear the burden of proof on a basis for eligibility that, as in this case, the alien did not assert until years after his status was adjusted. The INS presumably would not have performed any special investigation related to, or gathered any information on, unasserted grounds. To require the INS now to bear the burden of proving by “clear, unequivocal and convincing evidence” that these newly asserted grounds are untrue would place an impractical burden on the agency.

Moreover, the applicant is in the best position to prove the newly asserted ground for adjustment of status. He will obviously have greater access to the information necessary to demonstrate new grounds to support his previous adjustment.

This rule does not place an undue burden on the applicant.¹ Even if he is unable to prove the newly asserted ground, the rescission of an adjustment of status under section 246 does not forever render the alien ineligible for permanent residency. It merely returns him to where he was at the time of his earlier application. 8 U.S.C. § 1256. He is free to show eligibility on the newly asserted or any other ground.²

It is appropriate to impose upon the alien the obligation to assert all grounds for eligibility when he first applies for adjustment of status. Should multiple grounds exist, the alien is in a far better position than the INS to divine what they might be. The INS should not bear the burden of disproving assertions which it was never on notice it would have to investigate, which the alien failed to meet the burden of proving, and on which the INS has never been afforded the opportunity to exercise its discretion in the manner explicitly contemplated in 8 U.S.C. § 1255.

Since there is no dispute that the INS has borne its burden of proving that Kim was ineligible for the investor exemption upon which his original application for adjustment, of status was based at the time the adjustment was granted, and that Kim did not assert facts demonstrating his newly asserted ground for adjustment, we hold that the district court correctly granted the government’s motion for summary judgment.

AFFIRMED.

1 . Contrary to the dissent’s assertion, we do not shift the burden of proof set forth in Waziri. We merely must determine to what it applies in the specific context before us.

2 . The dissent’s extended discussion of other grounds under which Kim may be eligible for an adjustment of status, and the INS’s attempts to refute these grounds, are not pertinent to the issue before us. Because the reference in section 246 to “such adjustment of status” means only an adjustment of status as granted on the grounds that the alien has asserted, the question of whether Kim might be eligible on another ground ceases to have any relevance in this case.