NINTH CIRCUIT RECOGNIZES RIGHT OF EB-5 DERIVATIVE BENEFICIARIES TO SEEK REVIEW OF I-829 PETITION DENIALS

Written by: Taher Kameli, Esq.

The Federal judiciary has generally been the governmental branch that has done the most to protect immigrant rights since the election of President Trump.  As another example of a Federal court ruling in favor of immigrant rights, on September 4, the Ninth Circuit Court of Appeals recognized the right of EB-5 derivative beneficiaries to seek review of I-829 petition denials.

The case, Mu v. Barr, 2019 U.S. App. LEXIS 26668 (9th Cir. 2019), involved the derivative beneficiary (the daughter) of an EB-5 principal applicant (the father).  The principal applicant was granted conditional lawful permanent residence as an EB-5 investor (and thereby the derivative beneficiary was also granted conditional lawful permanent residence).  However, the U.S. Citizenship and Immigration Services denied the I-829 petition of the principal applicant to remove conditions on, and achieve unconditional, lawful permanent residence and terminated the principal applicant’s and the derivative beneficiary’s conditional lawful permanent resident status.  The principal applicant and the derivative beneficiary both were then placed in removal proceedings; while the principal applicant was removed in absentia, the derivative beneficiary appealed her removal to the Board of Immigration Appeals (BIA). However, the BIA concluded that only the principal applicant, and not the derivative beneficiary, could seek review of the I-829 petition denial.

The Ninth Circuit Court of Appeals, in an opinion written by Judge N. Randy Smith, disagreed with the BIA and held, “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. [Section] 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”.

The Mu court stated, “[W]e begin with the plain language of the applicable statute, 8 U.S.C. [Section] 1186b(c)(3), to determine whether a derivative beneficiary has standing to challenge the denial of an I-829 petition. . . . There is no ambiguity in the plain language of this statute; Congress has directly spoken to this 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. . . . 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. . . . Again, it is 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 phrase ‘any alien’ should not have several different meanings. . . . Nothing in [Section] 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”.

While the derivative beneficiary petitioner in the Mu case had the law on her side on the issue of the right to appeal the denial of an I-829 petition, her success on the issue was undoubtedly helped by having competent immigration litigation counsel.  It is critical in immigration litigation that the immigrant hire an attorney with significant immigration courtroom experience and a track record of success, such as the Law Offices of Kameli and Associates, which has been involved through the years with many EB-5 and other issues in court for immigrant clients and has reached many favorable outcomes for these clients.  If you need assistance on any EB-5 or other immigration issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for help.