Interim Decision #2842
MATTER OF PATEL
In Deportation Proceedings
A-20549643
Decided by Board December 11, 1980
(1) In the Ninth Circuit, to establish an exemption from the labor certification requirement of section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C.
1182(a)(14), as an "investor" within the meaning of 8 C.F.R. 212.8(b)(4) prior to its
amendment of October 7, 1976, it is not necessary for the alien to establish that his
investment expands job opportunities in the United States or that it is of an amount
adequate to Insure that his primal y function with respect to the investment will notbe
as a skilled or unskilled laborer. Patel v. INS, 638 F.2d 1199 (9 Cir. 1980) followed.
(2) The respondent established eligibility for an exemption from the labor certification
requirement as an "investor" within the meaning of 8 C.F.R. 212.8(b)(4) by establishing that he had invested capital totaling at least $10,000 In a motel and that he had had
at least 1 year's experience qualifying him to engage in such an enterprise.
(3) Notwithstanding eligibility for adjustment of status under section 245 of the Act, 8
U.S.C. 1255, the respondent's application for such relief was denied as a matter of
discretion where he had worked without authorization during the 3-year period in
which he was classified as a nonimmigrant student, knowing that his employment was
unlawful, and on three separate occasions he had deliberately made false statements
afloat that employment in applications for benefits under the Act. .
CHARGE
Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Student remained longer
than permitted
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Michael D. Ullman, Esquire Jane Gersbacher
8484 Wilshire Boulevard Trial Attorney
Suite 730
Beverly Hills, California 90211
Milhollan, Chairman; Maniatis, Appleman, and Maguire, Board Members
In a decision dated March 8, 1977, an immigration judge found the
respondent deportable as charged, denied an application from the
respondent for adjustment of status under section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255, denied an application from the
respondent for the privilege of voluntary departure in lieu of deporta-
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Interim Decision #2842
tion, and ordered him deported to India. The respondent has appealed.
The appeal will be dismissed in part and sustained in part.
The respondent is a 34-year-old native and citizen of India who was
admitted to the United States on June 11, 1971, as a nonimmigrant
student authorized to remain in the United States until June 11, 1972.
He subsequently obtained extensions of his stay which authorized him
to remain until June 11, 1975.
On July 8, 1974, the respondent filed an application for adjustment of
status to that of a permanent resident under section 245 of the Act at
the office of an Immigration and Naturalization Service District
Director. To avoid the labor certification requirement that would
otherwise have been applicable to him under section 212(a)(14) of the
Act, 8 U.S.C. 1182(a)(14), he claimed that he was entitled to an exemption from that requirement as an investor pursuant to 8 C.F.R.
212.8(b)(4). In support of the application, he submitted documents to
show, inter edict, that he had invested $11,000 in a motel. The District
Director denied the respondent's application in a decision dated May
22, 1975, on the ground that the respondent had only leased the motel
and, therefore, he was not entitled to an exemption from the labor
certification requirement as an investor. The respondent then
purchased the motel on August 25, 1975, and filed a motion with the
District Director for reconsideration of the application for permanent
residence.
On February 12, 1976, the District Director issued an Order to Show
Cause which alleges that the respondent is deportable under section
241(a)(2) of the Act, 8 U.S.C. 1251(a)(2), on the ground that he has
remained in the United States beyond June 11, 1975, without
permission.
On March 8, 1977, the respondent appeared before the immigration
judge at a deportation hearing, and, with the assistance of an attorney,
he admitted that he was deportable as charged in the Order to Show
Cause. Accordingly, we are satisfied that the respondent's deportability has been established by evidence that is clear, convincing, and
unequivocal.
The respondent also renewed his application for adjustment of
status under section 245 of the Act to that of a permanent resident,
claiming again that he was exempt from the labor certification requirement as an investor.
The provisions of 8 C.F.R. 212.8(b)(4) were amended, effective
October 7, 1976, but we shall consider this case under the prior version
of the regulation, the one which was in effect when the respondent first
applied for classification as an investor. The applicable version of this
regulation provides that
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Interim Decision #2842
The following persons are not considered to be within the purview of section 212(a)(14)
of the. Act and do not require a labor certification: ... (4) an alien who establishes on
Form I-526 that he is seeking to enter the United States for the purpose of engaging in
a commercial or agricultural enterprise in which he has invested, or is actively in the
process of investing. =Fitzl totaling at least $10,000. and who establishes that he has
had at least 1 year's experience or training qualifying him to engage in such
enterprise.
The respondent submitted documents at the deportation hearing
which establish that he leased a motel on June 25, 1974, for a period of 3
years, with an option to purchase it, and that on August 25, 1975, he
purchased the motel making a $12,000 cash down payment towards a
purchase price of $49,300. The down payment included $11,000 that he
had submitted as a deposit when he leased the motel.
With regard to his experience as a manager, the respondent testified
that he had been an assistant manager at a hotel in. India from the
middle of 1969, until the end of 1970, and that he had managed his
motel since June of 1974, when he acquired possession of it through the
lease agreement.
The respondent testified further that he had not employed anyone at
the motel until January of 1977, when he hired a part time maid (Tr. -
12, 40).
The Service trial attorney introduced two applications that the
respondent had submitted to the Service, for extensions of his stay in
the United States as a student, and a biographical form that he had
submitted with his first application for permanent resident status on
July 8, 1974. The respondent verified that his signature was on these
documents and admitted that statements in them about his employment in the United States were false. The extension applications state
in that regard that he had not worked in the United States, and the
other document states that he had not worked in the United States
until June of 1974, when he became the manager of his motel. The
respondent explained that he had worked in the United States since
August of 1971, and that he had denied that employment because it
was illegal and he thought that his applications would not be granted if
he revealed the truth (Tr. 29 31). -
The immigration judge found that the respondent had invested
capital totaling at least $10,000 in a motel business and that he had
had at least 1 year's experience qualifying him to engage in such an
enterprise. He found further, however, that the respondent's business
was an owner-operated, one-person enterprise that did not tend to
expand employment opportunities in this country, and that the respondent was probably displacing an American worker who might
otherwise be managing the motel. The immigration judge concluded
that the respondent had not established eligibility for investor classifi-
Interim Decision #2842
cation, citing this Board's decision in Matter of Ruangswang, 16 I&N
Dec. 76 (BIA 1976). He also found that the respondent was not entitled
to a favorable exercise of discretion in any event inasmuch as he had
worked in violation of the Act from the beginning of his stay in the
United States, he had filed applicationsr for extensions of his stay
stating falsely that he had not worked in the United States, and he had
obtained extensions of his stay on the basis of these false statements.
Accordingly, the immigration judge denied the respondent's application for adjustment of status. The immigration judge then denied the
respondent's application for voluntary departure as a matter of discretion in view of these adverse factors.
On appeal, the respondent contends that he has satisfied all of the
criteria set forth in 8 C.F.R. 212.8(b)(4), and, therefore, that he has
established eligibility for investor classification. Secondly, he contends
that the circumstances in his case warrant a favorable exercise of
discretion on his application for adjustment of status or, in the alternative, on his application for voluntary departure in lieu of
deportation.
Pursuant to section 245 of the Act, the status of a deportable alien
may be adjusted to that of an alien lawfully admitted for permanent
residence. To be eligible for such relief from deportation, however, the
alien must be admissible to the United States for permanent residence.
Section 245(a)(2). Since the respondent would have to enter as a
nonpreference immigrant who intends to perform skilled or unskilled
labor, he would be excludable under section 212(a)(14) of the Act unless
he were to establish an exemption from those requirements as an
investor pursuant to 8 C.F.R. 212.8(b)(4). Consequently, his application
for adjustment of status must be denied if he has not established
eligibility for classification as an investor under 8 C.F.R. 212.8(b)(4).
In interpreting a version of 8 C.F.R. 212.8(b)(4) that preceded the
version quoted above, we held in Matter of Heitland,
14 I&N Dec. 563
(BIA 1974), that in addition to satisfying the requirements specifically
set forth in the regulation, an alien had to show also that his investment tended to expand job opportunities in the United States, or that
it was of a nature which insured that his primary function with respect
to the investment would not be as a skilled or unskilled laborer. Then,
in Matter of Ruangswang, supra, we held that those additional requirements also applied to aliens seeking investor classification under the
version before us in this case. Our decision in Matter of Ruangswang
was reversed by the Ninth Circuit in Ruangswang v. INS,
591 F.2d 39 (9
Cir. 1978). The Ninth Circuit's reversal, however, was based on lack of
notice. The Court held that because the Ruangswangs had made their
investment prior to the Heitland decision, supra, they had not had
proper notice of the Heitland requirements, and the requirements,
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Interim Decision 112842
therefore, should not have been applied to them. Subsequently, in
Matter of Wang, 16 I&N Dec. 711 (BIA 1979), another case arising in
the Ninth Circuit, we distinguished the Ninth Circuit's Ruangstvang
opinion holding that an alien who had made an investment more than
a year after Heitland was decided had had adequate notice of its
requirements and had to comply with them. However, the Ninth
Circuit has recently rendered another decision which holds that the
Heitland requirements cannot be added to the terms of the regulation
even where there has been ample notice. Patel v. INS,
638 F.2d 1199 (9
Cir. 1980).
Accordingly, since the present case arose in the Ninth Circuit, the
Heitland requirements will not be applied in determining whether the
respondent has established eligibility for classification as an investor.
Consequently, on the basis of the immigration judge's finding that the
respondent bas satisfied the specific criteria set forth in 8 C.F.R.
212.8(b)(4), we conclude that the respondent is eligible for investor
classification.
Nevertheless, although the immigration judge's basis for finding
that the respondent was not eligible for adjustment of status has now
been removed, it does not follow that his application must be granted.
The grant of an application for adjustment of status under section 245
is a matter ©f administrative grace. An applicant has the burden of
showing that discretion should be exercised in his favor. Matter of
Marques,
16 I&N Dec. 314 (BIA 1977); Matter of Leung,
16 I&N Dec. 12
(BIA 1976); Matter ofArai,
13 I&N Dec. 494 (BIA 1970); Matter of Ortiz-Prieto,
11 I&N Dec. 317 (BIA 1965). Moreover, where adverse factors
are present, it may be necessary for the applicant to offset those
factors by a showing of unusual of even outstanding equities_ Matter of
Arai, supra.
In this case, the respondent worked without authorization during
the entire 2 year period in which he was classified as a nonimmigrant
—
student, knowing that his employment was unlawful, and on three
separate occasions he deliberately made false statements about that
employment in applications for benefits under the Act. We find that
the respondent has not presented any equities which are sufficient to
warrant relief from deportation under section 245 of the Act in view of
those adverse factors and conclude, therefore, that the immigration
judge's denial of the respondent's application for adjustment of status
as a matter of discretion was correct. Accordingly, the respondent's
appeal will be dismissed to the, extent that it relates to the immigration judge's denial of the adjustment application.
We find further, however, that the limited privilege of voluntary
departure is warranted in the circumstances of this case. Consequently, to the extent that the respondent's appeal addresses the
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immigration judge's denial of voluntary departure, it will be sustained.
Accordingly, the following order will be entered.
ORDER: The respondent's appeal from the immigration judge's
denial of relief under section 245 of the Act is dismissed.
FURTHER ORDER: The respondent's appeal from the immigration judge's denial of voluntary departure is sustained.
FURTHER ORDER: The respondent is permitted to depart from
the United States voluntarily within 30 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 respondent shall be deported as provided in the immigration judge's order.
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