NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NGUYEN CHAN NGUYEN; et al., No. 22-56068
Plaintiffs-Appellants, D.C. No.
2:21-cv-01893-FLA-PLA
v.
UNITED STATES CITIZENSHIP AND MEMORANDUM*
IMMIGRATION SERVICES, an agency
within the U.S. Department of Homeland
Security; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Fernando L. Aenlle-Rocha, District Judge, Presiding
Argued and Submitted November 13, 2023
Pasadena, California
Before: RAWLINSON, CLIFTON, and HURWITZ, Circuit Judges.
Nguyen Chan Nguyen’s petition for an EB-5 immigrant visa was denied by
United States Citizenship and Immigration Services (“USCIS”) because he failed to
show that his qualifying investment, derived from a third-party currency swap, came
from a lawful source. Nguyen and three similarly situated plaintiffs (collectively,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“Nguyen”) sued, alleging violations of the Administrative Procedure Act. The
district court granted summary judgment to USCIS. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
The EB-5 statute provides:
Visas shall be made available . . . to qualified immigrants seeking to
enter the United States for the purpose of engaging in a new commercial
enterprise . . . in which such alien has invested . . . or, is actively in the
process of investing, capital in an amount not less than the amount
specified.
8 U.S.C. § 1153(b)(5)(A)(i) (2018) (amended 2022).1 USCIS regulations define
“capital” as excluding “[a]ssets acquired, directly or indirectly, by unlawful means.”
8 C.F.R. § 204.6(e). They also require that “[t]o show that the petitioner has
invested, or is actively in the process of investing, capital obtained through lawful
means, the petition must be accompanied, as applicable, by: [evidentiary
requirements].” Id. § 204.6(j)(3).
1. Nguyen contends that the regulation requiring EB-5 petitioners to prove
that their invested capital comes from a lawful source is ultra vires. We disagree.
Employing settled canons of statutory construction, we find that the regulation
comports with the statute. First, Congress’s repeated re-enactment of the EB-5
1
In 2022, Congress significantly amended the statutory scheme. EB-5 Reform
and Integrity Act of 2022, Pub. L. No. 117-103, § 102, 136 Stat. 1070, 1070–75
(2022). The parties agree that this case is governed by the EB-5 statute in force at
the time of Nguyen’s application.
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program without disturbing the agency’s interpretation of the statute suggests that it
has endorsed it. See Lorillard v. Pons, 434 U.S. 575, 580 (1978). Second, reading
the statute to allow illegal funds to qualify a petitioner for an EB-5 visa would allow
noncitizens to obtain EB-5 visas with investment capital garnered through criminal
activity. See Pub. Citizen v. Dep’t of Just., 491 U.S. 440, 454 (1989). Third, the
legislative history makes plain that Congress intended for illegal funds to disqualify
a petitioner from obtaining an EB-5 visa. See S. Rep. No. 101-55, 101st Cong., 1st
Sess. 21 (1989).
Nguyen’s reliance on the presumption of consistent usage does not compel a
different result. Although Congress uses the term “lawful” in 8 U.S.C. § 1153, it
appears only in the context of lawful permanent residence—a term of art—and
lawful authorization to work. Congress did not attach “lawful” to “new commercial
enterprise,” but it seems entirely unlikely that Congress intended an EB-5 visa to
become available through investment in an illegal enterprise. 8 U.S.C. §
1153(b)(5)(A), (B).
2. We are also unpersuaded by Nguyen’s argument that USCIS’s practice
of inquiring into the legality of currency swaps is a new legislative rule requiring
notice and comment. USCIS regulations allow an inquiry into the legality of an
investor’s source and path of funds. 8 C.F.R. § 204.6(j)(3); see R.L. Inv. Ltd.
Partners v. INS (RLILP), 86 F. Supp. 2d 1014, 1025 (D. Haw. 2000), aff’d and
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adopted in full, 273 F.3d 874 (9th Cir. 2001). Inquiring into the path of funds not
only ensures their legality but also confirms that they belong to the petitioner. See
Matter of Izummi, 22 I. & N. Dec. 169, 195 (BIA 1998). Moreover, USCIS’s
practice is not new; the agency has a history of scrutinizing currency swaps. See,
e.g., Matter of [Redacted], 2009 WL 1742398, at *15–16 (AAO Mar. 6, 2009). And,
even if there were a rule change, it would be interpretive and hence exempt from
notice and comment. See RLILP, 86 F. Supp. 2d at 1024–26.
3. Nguyen argues that denying his EB-5 petition was arbitrary and
capricious because USCIS scrutinizes currency swaps more closely than investments
made through friends and family. But he does not identify any agency policy
imposing different evidentiary requirements on the two groups. Nguyen also alleges
that USCIS made adjudicative errors in denying his petition. But the agency
ultimately denied Nguyen’s petition based on multiple inconsistencies in the record
raising doubt about Nguyen’s currency swap partner. Since he never addressed
those inconsistencies, he does not demonstrate that the record would “compel a
reasonable finder of fact to reach a contrary result.” Family Inc. v. USCIS, 469 F.3d
1313, 1315 (9th Cir. 2006) (cleaned up).
AFFIRMED.2
2
Nguyen’s Motion to Take Judicial Notice is GRANTED.
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