ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before Seitz, Chief Judge, Aldisert, Circuit Judge, and Huyett, District Judge.*fn*
The major question presented in this petition to review a decision of the Board of Immigration Appeals is whether the Board properly interpreted the investor regulation when it affirmed an immigration law judge's determination that Eleftherios M. Pistentis, a Cypriot national, had failed to qualify for an investor exemption from the labor certification requirement.*fn1 We grant the petition, vacate the Board's order, and remand the case for further proceedings.
Pistentis, the petitioner, entered the United States on August 29, 1975 as a nonimmigrant student authorized to remain until April 14, 1978. He remained past that date without permission of the Immigration Service. On June 17, 1976, petitioner entered an agreement by which he bought a dairy bar-grocery for $10,000. Five thousand dollars was paid on that date, by a loan granted petitioner by a bank and guaranteed by the seller, plus a five thousand dollar note given the seller by petitioner, payable in monthly sums. The following day, June 18, 1976, he submitted two applications to the Immigration Service, one for determination of his qualification as an investor and the other for adjustment of his status to that of a permanent resident. On March 15, 1978, almost twenty-one months later, the district director denied both applications. The district director based his determination on a finding that petitioner had not invested $10,000 of his money, but only the proceeds of a $5,000 loan and his promise to pay additional monthly sums on the note. He gave Pistentis until April 14, 1978 to depart from the United States voluntarily without the initiation of formal deportation proceedings. Pistentis failed to leave, and on April 28, 1978 an order to show cause was issued alleging a deportation charge of overstay.
At the deportation hearing, petitioner through his attorney admitted the allegations of the order to show cause and conceded deportability. He designated Cyprus as the country to which he wished to be deported, but requested that he be allowed to leave voluntarily in lieu of deportation.
Petitioner also resubmitted his application for adjustment of status to that of a permanent resident, together with the application for investor status. In support thereof, petitioner claimed that at least twice before he filed his applications with the district director, he had unsuccessfully telephoned the Immigration Service to ask the meaning of the word "investment." On June 18, 1976, the day he filed his applications, he asked the receptionist if borrowed money was considered investment. He received no answer to his inquiry, but was told only to follow the instructions on the application. When he persisted, an interviewing officer told him she could not answer any questions until she had reviewed the file. He eventually had a meeting with the officer, at which he produced various pertinent documents. Subsequently, petitioner learned his applications had been disapproved.
After his purchase of the business, petitioner borrowed more money and bought additional equipment, expanding the type of goods sold and services provided. He had no employees until about six months after acquisition of the business, when a woman would occasionally tend the store while he was temporarily absent, such as on a trip to the bank. He paid her nothing, but did give her a few cartons of cigarettes a week. He claimed that his intention was to expand his business and hire employees as soon as his applications received favorable action. Petitioner's 1976 federal income tax return showed that his earnings for the half year from the business were $4,540.26. Petitioner's adjusted gross income from the business in 1977 was $9,435.60.
In his decision, the immigration judge questioned the INS attorney's position that respondent had failed to establish a $10,000 investment, but considered it unnecessary to decide the matter. In re Pistentis, File No. A18272241 (Immigration Court, Pittsburgh, Pa. August 4, 1978). He found that the Board's holding in In re Ruangswang, Interim Decision No. 2546 (BIA December 27, 1976), Rev'd, 591 F.2d 39 (9th Cir. 1978), required a decision adverse to petitioner. Ruangswang, the immigration judge decided, held that an investment within the meaning of the pertinent regulation requires an expansion of job opportunities in the United States. He found that petitioner's business failed to expand job opportunities, and denied petitioner's application for investor status, and, consequently, the application for adjustment of status.
The immigration judge granted petitioner the privilege of departing voluntarily by a date to be set by the district director, and ordered his deportation to Cyprus should he fail to leave in accordance with the district director's instructions. The Board agreed with the immigration judge and dismissed the appeal, stating:
We agree with the immigration judge's conclusion that where an investment fails to substantially expand job opportunities in the United States, it does not qualify as an exemption to the labor certification requirement of section 212(a)(14) of the Act. Matter of Ruangswang, Interim Decision 2546 (BIA 1976); Matter of Heitland, 14 I&N Dec. 563 (BIA 1974), aff'd Heitland v. INS, 551 F.2d 495 (2 Cir.), cert. denied, 434 U.S. 819, 98,98 S. Ct. 59,54 L. Ed. 2d 75 (1977). Where the only employment provided by an applicant's investment is to himself or his family, the application for adjustment of status as an investor must fail. Mehta v. INS, 574 F.2d 701 (2 Cir. 1978).
In re Pistentis, File No. A18272241, slip op. at 2 (BIA November 14, 1978). Pistentis filed a ...