The district court granted summary judgment to the Immigration and Naturalization Service (INS), affirming the denial of Egil Lauvik’s request for an extension of treaty investor status. Lauvik appeals. We reverse and remand.
BACKGROUND
Egil Lauvik, a citizen of Norway, invested $150,000 as a down payment on the purchase of a $375,000 motel/trailer park in Westport, Washington. INS granted him permission to stay one year as an E-2 nonimmigrant treaty investor. INS later extended his status for an additional year. On his application form, Lauvik wrote that he came to the United States “to immigrate to U.S.A. and go in bussiness [sic].” In the space for “date to which extension is requested,” Lauvik wrote “4 more years till I get my citizenship,” but then crossed that out and wrote “1 year.”
On Lauvik’s application for a second one-year extension, he listed $212 weekly income from the business and described his duties as “manage and do all work and repairs, rent rooms and trailer spaces, yard work, plombing [sic], etc.” The INS District Director denied Lauvik’s second extension request. INS found that Lauvik did not intend to depart the United States upon termination of his status and that Lauvik’s duties gave him the status of a skilled or unskilled laborer rather than that of a treaty investor. Lauvik filed two unsuccessful motions to reconsider. He provided evidence of property and investments in Norway to show his intent to return there. His Norwegian assets included a $100,000 furnished home leased yearly, a $45,000 waterfront property co-owned with his brother, and over $6,000 in bonds and bank accounts. The INS District Director concluded that this additional financial information showed that Lauvik’s investment in the United States, whether or not it was substantial, was his sole source of income and that precluded treaty investor status. Having exhausted all administrative remedies, Lauvik sought relief in district court. The district court granted the INS motion for summary judgment, and dismissed Lau-vik’s cross-motion for summary judgment. Lauvik appeals.
ANALYSIS
1. Standard of Review
We review a grant of summary judgment de novo to determine whether, with the evidence viewed in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether
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the district court applied the relevant substantive law.
Tzung v. State Farm Fire and Casualty Co.,
The district court found no abuse of discretion because it concluded that there was
some
evidence to support the INS District Director’s findings. The district court relied on
Song Jook Suh v. Rosenberg,
Lauvik argues, with considerable force, that the findings of the INS must be supported by “substantial evidence.” See id. at 1309. We need not decide whether that is the standard that the INS must meet, however, for in this case the evidence in support of the INS’ decision fell below not only that standard, but below any lesser standard that we might reasonably employ.
2. Intention to Depart
A treaty investor is a nonimmigrant who enters the United States “solely to develop and direct the operations of an enterprise in which he has invested ... [a] substantial amount of capital.” 8 U.S.C. § 1101(a)(15)(E)(ii). INS determined that Lauvik did not intend to depart the United States upon termination of his treaty investor status, as required by 22 C.F.R. § 41.51(b)(2).
Lauvik wrote on a form that he wanted an extension of his status for “4 more years till I get my citizenship.” Lauvik disavowed those words by drawing a line through them. Such crossed out and disavowed words shed little light on Lauvik’s true intentions.
Lauvik also wrote that he came to the United States, “to immigrate to U.S.A. and go in bussiness [sic].” INS points to those words as showing his intent to permanently settle here.
We note that Lauvik filled out the form in English, his second language, without benefit of counsel. There was no evidence that Lauvik could distinguish in English between an alien who “immigrates” permanently, and one who enters as a “nonimmi-grant” for a temporary stay. To the contrary, Lauvik’s affidavit stated that he had been “under the impression that merely investing in business meant ‘immigrating’ to the United States ... [and he] did not know the difference between an immigrant and nonimmigrant, and merely intended to show that [he] was ‘proceeding’ to the United States to set up a business.”
At most, Lauvik may have
wanted
to remain permanently, but there was no evidence that he
intended
to remain if that was not legally possible. On the contrary, Lauvik provided evidence of his furnished
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home and other investments in Norway to show his intent to return there if he must.
2
The INS District Director ignored the long line of precedent holding that an alien's desire to remain in the United States does not negate his intent to depart upon termination of his temporary status. See Bong Youn Choy v. Barber,
We conclude that the INS District Di-i~ector abused his discretion by finding that Lauvik was not "a bona fide immigrant intent upon departing upon termination of his status."
3. Labor Inconsistent with Treaty Investor Status
INS found that Lauvik engaged in unskilled or skilled labor inconsistent with his treaty investor status. A treaty investor "competes with other entrepreneurs to sell goods and services, but he does not compete directly in the market as a skilled or unskilled laborer." See Cheung v. District Director,
However, Lauvik may perform some me-" nial tasks without negating his treaty investor status if he primarily acts to direct, manage, and protect his investment. See Matter of Ahmad, 15 I & N, Dec. 81, 83 (BIA 1974) ("In many instances a bonafide investor will properly be able to engage in activities of a skilled or unskilled nature."); see also Matter of Ko, 14 I & N, Dec. 349, 350-351 (BIA 1973) (A treaty investor could work as a cashier in his own shoe store without labor certification.)
Lauvik is most similar to the alien who purchased and ran a small motel in Bhakta v. INS,
Lauvik invested $150,000 initially as a down payment on the purchase of his business. The total purchase price was $375,-000. At the time of his motion to reconsider, he had paid an additional $67,500 toward the remaining debt and over $50,000 on business expenses and improvements. Lauvik did not invest over $250,000 in order to take a skilled or unskilled job away from an American citizen. Lauvik claims that INS ignored evidence that the former owners and a resident caretaker help maintain the motel/trailer park. We conclude that Lauvik is far more like the motel owner in
Bhakta
who competes with other entrepreneurs for the sale of rooms, than he is like the chef in
Udagawa
who takes jobs away from American citizens or the dry cleaner in
Ruangswang
who is paid for her labor. INS erred by not considering all relevant factors and assuming that all skilled and unskilled labor is inconsistent with treaty investor status.
See Dong In Chung v. U.S. I.N.S.,
4. Lauvik’s Investment as His Sole Source of Income
INS found that Lauvik’s investment, whether or not it was substantial, was his sole source of income. A treaty investor must make a substantial investment, as “distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living.” 22 C.F.R. § 41.51(b). Notes to this regulation suggest that an investment is marginal if it only provides a livelihood for the treaty investor and his family, and does not expand local job opportunities. Dept, of State Foreign Affairs Manual, Vol. 9, Note 5.4 to 22 C.F.R. § 41.51. Lauvik hires a resident caretaker.
Lauvik’s investment is not marginal and solely for earning a living if he has other substantial assets.
See Matter of Kung,
17 I & N, Dec. 260, 262 (BIA 1978) (a treaty investor’s $53,000 investment was not marginal and solely for the purpose of earning a living, when he had $46,000 in additional assets);
see also Choi v. INS,
Lauvik listed his income from the business as only $212 weekly. The record is not clear whether that amount represents the net profit from the business, or whether it was the amount Lauvik chose to draw at that time. We note that business owners may choose to draw small amounts from a new business, in hopes of reaping greater benefits later. Regardless, Lauvik also received income from the lease of his $100,000 Norwegian home, co-owned a $45,-000 waterfront property, and had bonds and bank accounts worth more than $6,000. We conclude that he had substantial assets other than his investment, and that INS abused its discretion by failing to follow its own precedent in Rung.
CONCLUSION
We conclude that the district court erred in granting summary judgment, because Lauvik presented evidence that INS abused its discretion in denying him an extension of treaty investor status. We reverse and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
Notes
. Denials of treaty investor status have been reviewed without stating the standard, reviewed for abuse of discretion, reviewed for both arbitrary and capricious decisions and abuse of discretion, and reviewed to determine whether the agency applied the wrong legal standard.
Nice v. Turnage,
. We note that E-2 treaty investors need not maintain a foreign home, but that Lauvik has done so. Although some nonimmigrants, such as students and visitors, must have an intent not to abandon a foreign residence, the Supreme Court found it significant that other nonimmi-grants have no such requirement. "Congress' silence mean{s] that Congress, while anticipating that permanent immigration would normally occur through immigrant channels, was willing to allow nonrestricted nonimmigrant aliens to adopt the United States as their domi-" cue." Elkins v. Moreno,