Hui Mu v. William Barr, 936 F.3d 929

Background

Yankui Mu obtained EB-5 conditional LPR status and included his wife and daughter (Mu) as derivative beneficiaries; I-829 to remove conditions was later denied for failing to show required job creation.
USCIS terminated conditional status for Yankui, his wife, and Mu and issued Notices to Appear charging removability; Yankui was removed in absentia after failing to appear.
At Mu’s removal hearing the IJ did not review the I-829 denial as to Mu (a derivative), denied her motion for a continuance to obtain her passport and file another I-526, and ordered her removed; Mu sought voluntary departure but was ruled ineligible.
The BIA affirmed, holding that only the principal petitioner may seek review of an I-829 denial before an IJ and that the IJ did not abuse discretion in denying the continuance; the BIA also declined to consider new evidence submitted on appeal.
Mu petitioned the Ninth Circuit, arguing (1) derivative beneficiaries have standing to challenge I-829 denials in removal proceedings, and (2) the IJ/BIA abused discretion in denying a continuance and post-conclusion voluntary departure.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a derivative beneficiary (Mu) may seek review of an I-829 denial in removal proceedings	"Any alien" whose conditional status is terminated (including derivative spouse/child) may request review; Mu contends statutory text grants her standing	Review is limited to the principal EB-5 petitioner because the petitioner normally files the I-829 and statutory scheme centers on the entrepreneur	Court held derivative beneficiaries have standing under 8 U.S.C. §1186b(c)(3): "any alien" plainly includes derivative spouses/children; IJ/BIA erred by not reviewing the I-829 denial as to Mu
Whether IJ abused discretion by denying continuance to obtain passport and other evidence in support of post-conclusion voluntary departure	Mu argued she needed the continuance to present passport evidence establishing eligibility for voluntary departure	Government argued there was no good cause: lengthy delays, Mu’s own admissions undermined eligibility, prior continuances already granted	Court held no abuse of discretion: IJ provided adequate reasons; BIA permissibly relied on IJ’s rationale and did not err in denying continuance or post-conclusion voluntary departure
Whether BIA erred by refusing to consider new evidence on reconsideration (passport)	Mu argued BIA should have accepted passport submitted on appeal to show eligibility for voluntary departure	Government relied on rule that BIA will not engage in factfinding on appeal and need not consider new evidence on reconsideration	Court held BIA did not err: BIA is not required to consider new evidence on appeal or in a motion for reconsideration

Key Cases Cited

Spencer Enters., Inc. v. United States, 345 F.3d 683 (9th Cir. 2003) (describing EB-5 investor program and I-526 requirement)
Chang v. United States, 327 F.3d 911 (9th Cir. 2003) (procedural overview of conditional LPR status and I-829 removal of conditions)
Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010) (standard: de novo review of BIA legal questions)
Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018) (use ordinary meaning of statutory terms at enactment)
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency deference framework)
Eleri v. Sessions, 852 F.3d 879 (9th Cir. 2017) (statutory interpretation in EB-5 context)
Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168 (9th Cir. 2017) (ambiguity cannot be manufactured by positing multiple reasonable interpretations)
Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) (factors for evaluating denial of continuance in immigration proceedings)
Cui v. Mukasey, 538 F.3d 1289 (9th Cir. 2008) (denial of continuance evaluated case-by-case)
Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008) (BIA may rely on IJ’s findings when affirming continuance decisions)
Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996) (issues not raised in opening brief are waived)
Lara-Torres v. Ashcroft, 383 F.3d 968 (9th Cir. 2004) (standard for BIA denial of motion to reconsider)
Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (BIA will not consider new evidence on appeal; distinction between motions to reopen and reconsideration)