On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A079-144-016.
The opinion of the court was delivered by: N.R. Smith, Circuit Judge
Argued and Submitted November 20, 2008 -- Honolulu, Hawaii
Before: Mary M. Schroeder, Richard A. Paez and N. Randy Smith, Circuit Judges.
Giving deference to the reasonable interpretation of the term "domicile" by the Board of Immigration Appeals (BIA), see Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984), substantial evidence supports its determination that Joseph Higa ("Higa") did not qualify as a sponsor, because he was not domiciled in the United States as required by 8 U.S.C. § 1183a(f). Therefore, Youn Kyung Park ("Park") failed to demonstrate her eligibility for adjustment of status due to her lack of a qualifying sponsor. We also hold that Park lacks standing to pursue Higa's constitutional claims. Accordingly, we deny the petition for review.
Park is a native and national of South Korea. Park entered the United States as a nonimmigrant visitor on October 13, 1998. Park subsequently received a student visa, but failed to maintain her status as a student. The former Immigration and Naturalization Service (INS)*fn1 charged Park with removability. The Immigration Judge (IJ) found that Park was removable as charged because she failed to maintain her student status, but granted Park two weeks to voluntarily depart the United States. On appeal, the BIA summarily affirmed the IJ's decision.
Park then (1) requested that the BIA reopen her case and (2) applied for adjustment of status to lawful permanent resident on the basis of her marriage to Higa, a United States citizen. As part of Park's application, Higa filed a Petition for Alien Relative (or Form I-130 petition) along with an Affidavit of Support (Form I-864) in order for Park to receive status as an "immediate relative" spouse. In support of Higa's I-130 petition, Luke Hwang also filed an I-864 Affidavit of Support as a joint sponsor.*fn2 Initially, the BIA denied Park's motion to reopen, because she failed to voluntarily depart. After filing a petition for review of the denial of the motion to reopen, our court remanded the case to the BIA to determine when Park's voluntary departure time commenced (thereby providing Park additional time to apply for adjustment of status). Upon remand, the BIA granted the motion to reopen and allowed Park to apply for adjustment of status before the IJ. After a hearing, the IJ determined that Park failed to establish her eligibility for adjustment of status because Higa (her husband and sponsor) was not domiciled in the United States. The BIA upheld the IJ's decision, which is the subject of this appeal.
In determining that Higa was not domiciled in the United States, the IJ applied the definition of domicile contemplated by 8 C.F.R. § 213a.1. After considering the evidence, the IJ found that, shortly after marrying Park in February 2002, Higa moved to Japan. Higa worked in Japan as an assistant bar manager. In June 2002, Higa returned to Hawaii. In the summer of 2003, Higa returned to Japan to teach English for a Japanese company and has lived there ever since. The Japanese government issued Higa a "family working visa," which is issued to long-term residents of Japan. At the time of the adjustment of status hearing in 2001, Higa had resided in Japan for three years, owned no property in the United States (Park lived rent free in her employer's apartment), and (though maintaining a joint bank account with Park in Hawaii) had a personal bank account in Japan. Higa also stated that he had not voted in Hawaii.
During this three year period, Higa visited Park in Hawaii three times: once for a week; the second time for three to four days; and the last time to testify before the IJ. Higa's long-term plan was to return to Hawaii and open a business, but he could not identify specific dates for his return. On the basis of the foregoing, the IJ and the BIA found that Higa was not domiciled in the United States.
The BIA here conducted its own review of the evidence and law, rather than adopting the IJ's decision. Therefore, the court's "review is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted." Hosseini v. Gonzales, 471 ...