Park v. Holder (9th Cir. July 9, 2009)
SMITH, Paez, Schroeder
Park sought to adjust status through her marriage to Higa, a U.S. citizen. Higa filed an I-130 with the I-864 Affidavit of Support. USCIS denied the petition, finding that Higa was not domiciled in the U.S. and therefore could not file the necessary Affidavit of Support.
Park and Higa married in February 2002. Higa worked in Japan from shortly after the marriage until June 2002, and then returned to Hawaii until summer 2003. Higa then returned to Japan for the next three years, visiting Park in Hawaii twice for a total of a week and a half before hearings in immigration court in 2006. Higa owned no property in Hawaii, paid taxes in Japan and had a bank account there. He also had a joint bank account with Higa in Hawaii. He testified that he intended to return to Hawaii “in the future” to open a school there, after he gained experience teaching English in Japan.
8 C.F.R. § 213a.1 defines “domicile” in this context as:
[T]he place where a sponsor has his or her principal
residence, as defined in section 101(a)(33) of the
Act, with the intention to maintain that residence for
the foreseeable future.
An individual who is residing abroad can still be domiciled in the U.S., and can therefore be a qualifying I-864 sponsor, if the individual demonstrates that he/she will establish a U.S. residence before the admission of the beneficiary. 8 C.F.R. § 213a.2(c)(1)(ii)(B).
Holdings:
1. Park argued that the § 213a.1 was unreasonable because the INA defines residence as a place of abode without regard to intent. Applying Chevron, the CtApp upheld the regulation, noting that intent was always relevant to domicile at common law and in the immigration context. Intent might be irrelevant to residence, but not to domicile.
2. Higa could not demonstrate sufficient intent to establish residence in Hawaii, as his statements that he would return there “in the future” were indefinite and lacked the support of any objective indicators of intent to relocate.
3. Park did not have standing to assert claims that the BIA infringed Higa’s constitutional rights.
Petition denied and dismissed.
Read opinion here.