Interim Dea.sion #2525
MATTER OP SHAW
In Deportation Proceedings
A-18492374
A-19182634
Decided by Board July 2, 1976
(1) Respondent:, who are husband and wife, seek adjustment of status under section 245
of the Immigration and Nationality Act as nonpreference immigrants who are exempt
from the labo::, certification requirement of section 212(a)(14) of the Immigration and
Nationality Act based on the husband's investment in a restaurant.
(2) Male respondent failed to meet his burden of proof to show that he qualifies for
exemption fro:n the labor certification requirement as an investor under the evidentiary
requirements set forth in Mattor of Ahmad, 16 L & N. Doc. 81 (BIA 1974) whore
photocopies of checks submitted as the primary evidence of the investment and allegedly issued in payment for items relating to the restaurant did not show what items
had been purchased; where the financial statement submitted was unaudited and based
exclusively on information supplied by respondent to the accountant and which
indicated that the books had not been maintained in an acceptable manner from an
accounting standpoint and from which expenditures could not be verified; and where
respondent failed to submit documentation relating to the affairs of the enterprise or a
satisfactory explanation for the absence of such documentation.
(3) Where the immigration judge concluded that the male respondent had previously been
untruthful in his testimony concerning his prior employment in the United States, and
found that female respondent had entered this country as a nonimmigrant with a
preconceived intent to remain in the United States, denial of the applications for
adjustment of status was warranted in the exercise of discretion notwithstanding the
fact that respondents were the parents of a United States citizen child and may have
developed other ties in the United States.
CHARGE:
Order: Act of 1952—Section 241(aX2) U.S.C. 1251(a)(2)]—Nonimmigrant visitor-
-remained longer (both respondents)
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Robert S. Bixby, Esquire Brian H. Simpson
30 Hotaling Place Trial Attorney
San Francisco. California 94111
This case has been before us on several prior occasions, and it is now
here on the respondents' appeal from the latest decision of the immigration judge, dated October 21, 1975. That appeal will be dismissed.
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Interim Decision #2525
The respondents are husband and wife. The male respondent is a
native and citizen of China, and the female respondent is a native and
citizen of Japan. They have conceded deportability under section
241(a)(2) of the Immigration and Nationality Act as nonimmigrants who
have remained beyond the authorized length of their stays. Throughout
the course of these proceedings, the respondents have sought adjustment of status under section 245 of the Act. The only issues on appeal
involve their application for that relief.
The respondents seek section 245 relief as nonpreference immigrants.
The male respondent claims to satisfy the labor certification requirements of section 212(a)(14) as an "investor" within the contemplation of
8 CFR 212.8(b)(4). The eligibility of the female respondent for adjustment of status evidently depends on the case of her husband, because
she claims no independent eligibility and apparently has no independent
means of support.
The immigration judge denied the applications for adjustment of
status, finding that the male respondent had not satisfactorily shown
that he qualifies as an "investor," and that the respondents did not merit
a favorable exercise of discretion in any event. We agree with the
immigration judge In both respects.
The male respondent claims an investment of about $13,000 in a
Chinese restaurant located in Santa Clara, California (Tr. p. 80). We
last remanded the record to the immigratitin judge in part to enable the
respondent to further document the alleged investment and thereby
satisfy the burden of proof requirements set forth in Matter of Ahmad.
15 I. & N. Dee. 81 (BIA 1974).
At the reopened hearing, the male respondent presented photocopies
of numerous cheeks allegedly used in payment for such items as furniture, equipment, and fixtures relating to the restaurant (see Exh. 9; Tr.
pp. 64, 66). These checks constitute the primary evidence of the amount
of the male respondent's investment. The checks, by themselves, however, do not show what items have been purchased by the male respondent, and the male respondent did not have any corresponding invoices
to substantiate his testimony.
Many of the checks are merely made payable to the order of "cash."
Others, such as the numerous monthly checks made out to "NCR," could
easily be in payment for leased items. However, the amount of an
investment under 8 CFR 212.8(b)(4) in leased items is limited to the
funds which are devoted toward that item in any one month (i.e. a
monthly rent plus any deposit). The rent on leased premises or equipment will generally come from the current earnings of the business, and
neither the market value of the item nor the yearly rental figure is
representative of the funds necessarily "invested" in that aspect of a
business. Cf. Matter of Ahmad, supra (dealing with the same problem
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Interim Decision #2525
as it relates to cumulative payments for revolving inventory). It is
therefore not clear whether all of the checks represent payments which
are properly claimable as part of the investment.
The male respondent's other major piece of documentary evidence in
support of his investor claim is a financial statement of his business
prepared by a public accountant in California. The financial statement,
however, was prepared without an audit, and the accountant could not
express an opinion as to the accuracy of the presentation. It appears
that the male respondent's books were not maintained in an acceptable
manner from an accounting standpoint, that certain cash expenditure
items could not be verified by the accountant, and that the financial
statement was prepared exclusively from data for-yarded by the male
respondent to the accountant. We find that the financial statement does
not satisfy th e requirements set forth in Matter of Ahmad, supra. The
male responEent has not shown the amount of his investment, and he
has therefore failed to show that he qualifies for this exemption from
labor certification.
'On appeal, counsel has attacked our holding in Ahmad as an attempt
to single out investors for treatment which is different from that accorded other section 245 applicants with respect to evidentiary requirements. We did not declare in Ahmad that an investor has a higher
burden of proof to meet than other section 245 applicants. Instead, our
ruling merely requires that an investor claimant come forward with the
best available evidence of his investment. There are sound reasons for
such a requirement.
Section 212(a)(14) requires that the Department of Labor issue a labor
certification for certain categories of aliens who seek to enter the United
States to perform skilled or unskilled labor. An alien who qualifies under
8 CFR 212.8(b)(4) is exempt from this requirement. The exemption,
however, should not merely be a means of circumventing the labor
certification requirement for a skilled or unskilled laborer.
In the United States it is difficult to establish and operate a business
of any significant size without generating some documentation reflecting
the affairs of the enterprise. Large purchases of equipment and inventory are rare4 unaccompanied by invoices or other indicia of a contractual arrangeraent. The market value of land, buildings, equipment and
machinery can be appraised. Accounting audits can be conducted to
verify the financial status of most enterprises. Finally, records required
to be kept by various governmental authorities will frequently provide
some indicatian of the nature and extent of a business venture.
In Matter of Ahmad, supra, we merely held that an investor claimant
must be prepared to present some of this documentation, or satisfactorily explain why none of this exists for his business. We adhere to that
ruling.
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Interim Decision #2525
Counsel also argues that the male respondent gave an explanation for
the absence of supporting documentation. We, however, can find no
satisfactory explanation in the record for the male respondent's failure
to present invoices or other supporting evidence. Even though the male
respondent may have destroyed or lost many of the important documents relating to his business, it is not unlikely that the companies from
which he has made purchases have kept some record of the various
transactions. Thus, as an example, the male respondent could have
satisfied us that the payments to "NCR" were not pursuant to a lease
agreement merely by obtaining a copy of the original contract from that
firm.
Counsel maintains that the male respondent gave credible testimony
that all the checks presented in evidence related to the purchase of
equipment, furnishings and fixtures for the restaurant. The immigration
judge did not make a specific finding regarding the male respondent's
credibility on this point. The immigration judge, however, did reaffirm
his finding, initially made in his decision of August 26, 1970, that the
male respondent was at times untruthful in his testimony at an earlier
hearing. We agree with that finding. We decline to accept the male
respondent's testimony on the amount of his investment because hehas
been untruthful before, he has not presented_ documentation which
appears to us to be available from some source, and he has failed to
adequately explain the absence of that documentation.
The male respondent has not shown that he is admissible to the
United States for permanent residence under section 212(a)(14) of the
Act. Neither respondent is statutorily eligible for adjustment of status.
The immigration judge also concluded that the respondents did not
merit a favorable exercise of discretion on their applications for section.
245 relief. That conclusion, reached after, a weighing of the deinonstrated favorable and unfavorable factors, was correct. See Matter of
Blas, 15 I. & N. Dec. 626 (A.G. 1976); Matter of Arai,
13 I. & N. Dec.
494 (BIA 1970).
The respondents have one United States citizen child, they evidently
hold some property here, and they presumably have developed other
ties to the United States over the course of their stay. They also have
alleged hardship in the potential breakup of the family. The male respondent claims he could not reside in Japan, the country of his wife's
birth, and he doubts that his wife would be permitted to accompany him
to Taiwan. In our decision of August 29, 1975, we remanded in part so.
that evidence of this potential separation could be introduced into the
record. At the reopened hearing, no evidence was presented along these
lines, other than the bare assertions of the male respondent. The respondents, who have the burden of proof on their section 245 applications, have not shown that their family would be separated permanently
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Interim Decision #2525
upon deportation. The remaining favorable factors do not outweigh the
adverse factors present in their case.
The immig:ration judge found that the female respondent entered the
United States with a preconceived intent to remain permanently. Counsel concedes that finding to be correct. A preconceived intent to remain
permanently is a significant factor bearing upon the exercise of discretion: See Soo Yuen v. INS, 456 F.2d 1107 (C.A. 9, 1972); Ameeriar v.
INS, 438 F.2t1 1028 (C.A. 3, 1971), cert. dismissed,
404 U.S. 801 (1971);
Chen v. Foley,
385 F.2d 929 (C.A. 6, 1967), cert. denied,
393 U.S. 838
(1968); CubiLlos - Gonzalez v. INS.
352 F.2d 782 (C.A. 9, 1965); Castillo
v. INS,
350 F.2d 1 (C.A. 9, 1965). In the past, we have denied adjustment of status to aliens who entered with a preconceived intent to
remain permanently, even though the aliens had significant family ties
in the United States. Matter of Muslemi, 121. & N. Dec. 249 (BIA 1967)
(United States citizen spouse); Matter of Tonga,
12 I. & N. Dec. 212
(BIA 1967) (1Jnited States citizen child and brother); Matter of RubioVargas, 11 I. & N. Dee. 167 (BIA 1965) (lawful permanent resident
spouse). See also Matter of Allotey, 15 I. & N. Dee. 351 (BIA 1975). The
female respondent does not merit a favorable exercise of discretion.
As an adverse factor, the immigration judge found that the male
respondent had been untruthful in his testimony during the hearing in
1970. Counse:. disputes this finding. We, however, agree with the immigratinn judge.
In 1970, the male respondent was a partner in a Chinese restaurant in
Palo Alto, California. He was receiving income of approximately $800 a
month from his participation in that venture (Tr. p. 30). He evidently
spent varying amounts of time working at the restaurant as a busboy,
cook, waiter or cashier (Tr. p. 29).
Prior to revealing his participation in the restaurant on crossexamination, the male respondent testified that he had not been employed in the United States (Tr. p. 11), and that his means of support
consisted of savings and family assistance from abroad (Tr. p. 15). The
nature of the male respondent's employment was brought out on crossexamination and he thereafter amplified his testimony regarding his
means of support (Tr. p. 45).
The immigration judge, who had an opportunity to observe the
witness, concluded that the male respondent's testimony had been untruthful. An immigration judge's evaluation of a witness is entitled to
considerable weight in this respect. Matter of Teng,
15 I. & N. Dec.
516 (BIA 1975); Matter of S—,
8 I. & N. Dec. 574 (BIA 1968); Matter
of T—,
7 I. & N. Dec. 417 (BIA 1957). A denial of adjustment of status in
the exercise of discretion was warranted in view of the male respondent's untruthful testimony.
The immigration judge accorded both respondents the privilege of
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Interim Decision #2525
voluntary departure in his decision of August 26, 1970. The Service has
not challenged that grant, and the respondents have never been forced
to exercise that privilege because of the various remands of the record
which.we-have ordered. The respondents therefore are still entitled to
the privilege of voluntary departure in accordance with the immigration
judge's order of August 26, 1970.
ORDER: The appeai is dismissed.
Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily
within 28 days from the date of this order or any extension beyond that
time as may be granted by the district director; and in the event of
failure so to depart, the respondents shall be deported in accordance
with the immigration judge's order of August 26, 1970.
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