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EB-5 and Derivative Rights – What Does Mu v Barr Really Mean?
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</h3><h4><i>by <a href=”http://discuss.ilw.com/content.php?7114-Article-Private-Refugee-Sponsorship-Gains-Crucial-New-Support-by-Matthew-La-Corte#bio”>
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Yesterday, a panel of the Ninth Circuit Court of Appeals published a
in the case <em>Mu v. Barr</em>, 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 <em>Chevron</em> 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 9<sup>th</sup> 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.
<p>This post originally appeared on <a href=”https://wolfsdorf.com/blog/2019/09/06/eb-5-and-derivative-rights-what-does-mu-v-barr-really-mean/” target=”_blank”>Wolfsdorf Rosenthal</a>. Reprinted with permission.</p>
About The Author<br/>
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<b>Joseph Barnett</b> is a partner at Wolfsdorf Rosenthal LLP and a member of the firm’s EB-5 and business immigration practices. He is licensed as an attorney in Illinois and Wisconsin and practices exclusively in immigration and nationality law. Mr. Barnett represents immigrant investors seeking permanent residency in the United States through USCIS-designated Regional Centers and investment in their own businesses. Mr. Barnett also assists developers with the establishment of complex corporate and financing structures for EB-5 capital. He works with economists, securities lawyers, business plan writers, and other professionals to prepare Regional Center applications, amendments, and project “exemplar” approvals.
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