By: Joseph Barnett
Yesterday, a panel of the Ninth Circuit Court of Appeals published a decision in the case Mu v. Barr, which discussed whether EB-5 derivative beneficiaries could seek review of an I-829 petition denial in immigration court. The Board of Immigration Appeals (“BIA”) had previously concluded that only the principal petitioner could seek review of the I-829 denial.
The panel held that the plain language of 8 U.S.C. § 1186b(c)(3)(D)—which provides that “any alien” whose conditional permanent resident status has been terminated after the denial of an I-829 petition may request review of such determination in a removal proceeding—unambiguously establishes that Congress did not intend to limit such review to the principal alien entrepreneur. In administrative law terms, because Congress’ intent was clear when specifically using “any alien” viz-a-viz removal proceedings in the Immigration and Nationality Act, the court did not need to evaluate the term under the second step Chevron deference. The panel concluded that the agency erred in not reviewing the denial of her father’s petition.
The right of conditional green card holder to seek review in immigration court after an I-829 petition denial is incredibly important, as there is no administrative appeal available, and review in front of an immigration judge is the only manner to challenge USCIS’ determination. We are happy to see that the 9th Circuit confirm that EB-5 derivative beneficiaries have standing to challenge an I-829 denial in immigration court. This is consistent with new regulations, effective November 21, 2019, which clarify the filing process for derivatives who are filing a I-829 petition separately from the immigrant investor, in the event the principal applicant fails or refuses to file an I-829 petition.