N.R. SMITH, Circuit Judge.
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. § 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.
I. Administrative Framework
"The immigrant investor program, or EB-5 program, established by the Immigration and Nationality Act (`INA'), allows aliens to receive permanent resident status upon the investment of a specified amount of capital and the creation of at least ten full-time jobs in the United States." Spencer Enters., Inc. v. United States, 345 F.3d 683, 686 (9th Cir. 2003) (citing 8 U.S.C. § 1153(b)(5)). "The purpose of the EB-5 Program is to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital into the U.S. economy." EB-5 Adjudications Policy (PM-602-0083), 2013 WL 2387747, at *1 (Dep't of Homeland Security May 30, 2013). "In applying for an EB-5 visa, an alien entrepreneur must submit an I-526 petition" establishing that he or she has met the required criteria. Spencer Enters., 345 F.3d at 686. After approval of the I-526, the alien entrepreneur, the alien spouse, and the alien child may enter the United States as conditional LPRs. Chang v. United States, 327 F.3d 911, 916 (9th Cir. 2003); see also 8 U.S.C. § 1186b(a), (f). Thereafter, the "EB-5 requires the [alien entrepreneur] to file a second petition, an `I-829,' between 21 and 24 months after the first petition." Chang, 327 F.3d at 916; see also 8 C.F.R. § 216.6(a)(1). Normally, the alien entrepreneur includes his alien spouse and alien child in the I-829 petition. See 8 C.F.R. § 216.6(a). However, in some circumstances, the spouse or child may file his or her own I-829 petition. See id. Thereafter, the United States Citizenship & Immigration Service ("USCIS") "approve[s] the I-829 petition, and grant[s] unconditional LPR status, if it finds that the [alien entrepreneur] made no material misrepresentations in the I-526 petition and complied with the EB-5 requirements." Chang, 327 F.3d at 916 (citing 8 C.F.R. §§ 204.6, 216.6).
On the other hand, if the USCIS denies the I-829 petition, the director "shall provide written notice to the alien of the decision and the reason(s) therefor, and shall issue an order to show cause why the alien should not be deported from the United States." 8 C.F.R. § 216.6(d)(2). At that time, the conditional LPR status of the alien entrepreneur, the alien spouse, and the alien child is terminated. See id.; 8 U.S.C. § 1186b(c)(3)(C). No appeal is available from the denial of the I-829; however, the alien (whose LPR status was terminated) may request review of the denial in his or her removal proceedings. 8 C.F.R. § 216.6(d)(2). At that time, the agency has the burden "to establish by a preponderance of the evidence that the facts and information in the alien's petition for removal of conditions are not true and that the petition was properly denied." Id.
II. Procedural History & Facts
In 2002, Yankui Mu (Mu's father) applied for and was granted conditional LPR status as an EB-5 investor. See 8 U.S.C. § 1153(b)(5). In 2004, Yankui, Ling Zhi (Mu's mother), and Mu conditionally entered the United States as LPRs under the EB-5 program. All three were considered conditional LPRs, though Mu and her mother (who is not a party to this petition) were derivative beneficiaries of Yankui Mu. Two years later (as required by statute), Mu's father filed an I-829 petition
In January 2008, Mu appeared with her parents before an IJ. They admitted the factual allegations in the Notice to Appear and conceded removability. In March 2009, Mu's father failed to appear at the scheduled hearing and was removed in absentia.
Because Mu's father was removed in absentia, the IJ asked Mu and her mother to brief the issue of whether they had standing to challenge the I-829 denial.
Mu appealed to the BIA, arguing that the IJ erred in failing to review the denial of the I-829 petition and in denying her voluntary departure. Mu submitted her passport with her appeal to establish her eligibility for voluntary departure. The BIA dismissed Mu's appeal, concluding that, under 8 C.F.R. § 216.6(d)(2), only the principal petitioner (Mu's father) may seek review of the denial of the I-829 petition before an IJ. The BIA also concluded that the entry of the final order of removal against Mu's father constituted an abandonment of his claims; thus the I-829 petition was unreviewable. The BIA lastly concluded that the IJ did not err in denying Mu a continuance or in finding her ineligible for voluntary departure.
Mu timely petitioned this court to review the BIA's decision and filed a motion to reconsider with the BIA. In the motion for reconsideration, Mu argued that the BIA should have accepted her passport as evidence that she was eligible for voluntary departure. She also again asserted that an IJ should have reviewed the USCIS's I-829 decision.
The BIA denied the motion for reconsideration. The BIA concluded that Mu's arguments were previously made and rejected, or that they were raised for the first time on appeal. Mu timely petitioned this court to review the BIA's denial. The two petitions are now consolidated for this appeal.
The BIA erred in finding that Mu lacked standing (as a derivative beneficiary) to challenge her father's I-829 denial.
"We review BIA determinations of purely legal issues regarding the INA de novo." Federiso v. Holder, 605 F.3d 695, 697 (9th Cir. 2010). In interpreting statutes, we defer to the agency only if the statute is ambiguous. Thus, "we first determine if there is any ambiguity in the statute using traditional tools of statutory interpretation." Id. "We may not accept an interpretation clearly contrary to the plain meaning of a statute's text." Id.
Following this precedent, we begin with the plain language of the applicable statute, 8 U.S.C. § 1186b(c)(3), to determine whether a derivative beneficiary has standing to challenge the denial of an I-829 petition. See Eleri v. Sessions, 852 F.3d 879, 882 (9th Cir. 2017). The statute provides in relevant part:
8 U.S.C. § 1186b(c)(3) (emphases added).
There is no ambiguity in the plain language of this statute; Congress has directly spoken to the 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.
Throughout the statute, Congress used the term "any alien" in the context of termination and removal. In § 1186b(b)(2) and § 1186b(c)(3)(D), the statute allows "[a]ny alien whose permanent resident status is terminated," to request a review of the termination. The statute does not define "any alien." See § 1186b. However, it does limit "any alien" to the alien entrepreneur, the alien spouse, and the alien child, "whose permanent residence status is terminated." See § 1186b(b)(1)(C), (c)(3)(C).
Congress specifically used "any alien" when discussing removal proceedings; whereas it used "alien entrepreneur" when it defined the alien entrepreneur's obligations under the statute.
This broader interpretation is also supported by 8 U.S.C. §§ 1186a and 1227(a)(1)(D). First, under § 1186a,
Even if we were to give deference to the government, 8 C.F.R. § 216.6(d)(2) does not actually make these suggested limitations.
Nothing in § 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.
The BIA did not fail to apply the applicable standard of review to an IJ's denial of a continuance.
Before the IJ, Mu requested voluntary departure; to support her application for voluntary departure, she requested a continuance to allow her time to present evidence (specifically her passport). The IJ
To determine whether the BIA abused its discretion in denying a motion to continue, we look to the factors set forth in Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). The Ahmed factors "includ[e]: (1) the nature of the evidence excluded as a result of the denial of the continuance, (2) the reasonableness of the immigrant's conduct, (3) the inconvenience to the court, and (4) the number of continuances previously granted." Id. "[T]he BIA abuses its discretion when it fails to state its reasons and show proper consideration of all factors when weighing equities and denying relief." Id. at 1014 (citation omitted).
In this case, the IJ noted that (1) Mu was informed on February 11, 2013, through counsel, "that her hearing on January 9, 2014 would be on the status of the I-526, and if it was denied [Mu] was to be prepared to file and state any and all relief before the Court"; (2) in January 2014, Mu "stated that she would be seeking no other relief other than post-conclusion voluntary departure"; (3) Mu was allowed additional time during the hearing for her counsel to inform her of the requirements of voluntary departure; and (4) "[i]t is [Mu's] burden to show that she is eligible for post-conclusion voluntary departure, and by her own admission she left the United States in 2007 during the summer months and returned to either China or Singapore." The IJ then denied the motion, concluding that no good cause existed to continue the matter.
Although the BIA did not expressly address the Ahmed factors, the IJ sufficiently outlined why good cause did not exist. See Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir. 2008) ("The question whether denial of a continuance in an immigration proceeding constitutes an abuse of discretion cannot be decided through the application of bright-line rules; it must be resolved on a case by case basis." (citation omitted)). In concluding that the IJ's decision was not clearly erroneous, the BIA relied upon the IJ's statement of reasons. See Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). Beyond the fact that this case had been continued for over six years,