Interim Dea.sion #2525 

MATTER OP SHAW 

In Deportation Proceedings 

A-18492374 

A-19182634 

Decided by Board July 2, 1976 

(1) Respondent:, who are husband and wife, seek adjustment of status under section 245 

of the Immigration and Nationality Act as nonpreference immigrants who are exempt 

from the labo::,certification requirement of section 212(a)(14) of the Immigration and 

Nationality Act based on the husband's investment in a restaurant. 

(2) Male respondent failed to meet his burden of proof to show that he qualifies for 

exemption fro:n the labor certification requirement as an investor under the evidentiary 

requirements set forth in Mattor of Ahmad, 16 L & N. Doc. 81 (BIA 1974) whore 

photocopies of checks submitted as the primary evidence of the investment and allegedly issued in payment for items relating to the restaurant did not show what items 

had been purchased; where the financial statement submitted was unaudited and based 

exclusively on information supplied by respondent to the accountant and which 

indicated that the books had not been maintained in an acceptable manner from an 

accounting standpoint and from which expenditures could not be verified; and where 

respondent failed to submit documentation relating to the affairs of the enterprise or a 

satisfactory explanation for the absence of such documentation. 

(3) Where the immigration judge concluded that the male respondent had previously been 

untruthful in his testimony concerning his prior employment in the United States, and 

found that female respondent had entered this country as a nonimmigrant with a 

preconceived intent to remain in the United States, denial of the applications for 

adjustment of status was warranted in the exercise of discretion notwithstanding the 

fact that respondents were the parents of a United States citizen child and may have 

developed other ties in the United States. 

CHARGE: 

Order: Act of 1952—Section 241(aX2) U.S.C. 1251(a)(2)]—Nonimmigrant visitor- 

-remained longer (both respondents) 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Robert S. Bixby, Esquire Brian H. Simpson 

30 Hotaling Place Trial Attorney 

San Francisco. California 94111 

This case has been before us on several prior occasions, and it is now 

here on the respondents' appeal from the latest decision of the immigration judge, dated October 21, 1975. That appeal will be dismissed. 

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Interim Decision #2525 

The respondents are husband and wife. The male respondent is a 

native and citizen of China, and the female respondent is a native and 

citizen of Japan. They have conceded deportability under section 

241(a)(2) of the Immigration and Nationality Act as nonimmigrants who 

have remained beyond the authorized length of their stays. Throughout 

the course of these proceedings, the respondents have sought adjustment of status under section 245 of the Act. The only issues on appeal 

involve their application for that relief. 

The respondents seek section 245 relief as nonpreference immigrants. 

The male respondent claims to satisfy the labor certification requirements of section 212(a)(14) as an "investor" within the contemplation of 

8 CFR 212.8(b)(4). The eligibility of the female respondent for adjustment of status evidently depends on the case of her husband, because 

she claims no independent eligibility and apparently has no independent 

means of support. 

The immigration judge denied the applications for adjustment of 

status, finding that the male respondent had not satisfactorily shown 

that he qualifies as an "investor," and that the respondents did not merit 

a favorable exercise of discretion in any event. We agree with the 

immigration judge In both respects. 

The male respondent claims an investment of about $13,000 in a 

Chinese restaurant located in Santa Clara, California (Tr. p. 80). We 

last remanded the record to the immigratitin judge in part to enable the 

respondent to further document the alleged investment and thereby 

satisfy the burden of proof requirements set forth in Matter of Ahmad. 

15 I. & N. Dee. 81 (BIA 1974). 

At the reopened hearing, the male respondent presented photocopies 

of numerous cheeks allegedly used in payment for such items as furniture, equipment, and fixtures relating to the restaurant (see Exh. 9; Tr. 

pp. 64, 66). These checks constitute the primary evidence of the amount 

of the male respondent's investment. The checks, by themselves, however, do not show what items have been purchased by the male respondent, and the male respondent did not have any corresponding invoices 

to substantiate his testimony. 

Many of the checks are merely made payable to the order of "cash." 

Others, such as the numerous monthly checks made out to "NCR," could 

easily be in payment for leased items. However, the amount of an 

investment under 8 CFR 212.8(b)(4) in leased items is limited to the 

funds which are devoted toward that item in any one month (i.e. a 

monthly rent plus any deposit). The rent on leased premises or equipment will generally come from the current earnings of the business, and 

neither the market value of the item nor the yearly rental figure is 

representative of the funds necessarily "invested" in that aspect of a 

business. Cf. Matter of Ahmad, supra (dealing with the same problem 

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Interim Decision #2525 

as it relates to cumulative payments for revolving inventory). It is 

therefore not clear whether all of the checks represent payments which 

are properly claimable as part of the investment. 

The male respondent's other major piece of documentary evidence in 

support of his investor claim is a financial statement of his business 

prepared by a public accountant in California. The financial statement, 

however, was prepared without an audit, and the accountant could not 

express an opinion as to the accuracy of the presentation. It appears 

that the male respondent's books were not maintained in an acceptable 

manner from an accounting standpoint, that certain cash expenditure 

items could not be verified by the accountant, and that the financial 

statement was prepared exclusively from data for-yarded by the male 

respondent to the accountant. We find that the financial statement does 

not satisfy th e requirements set forth in Matter of Ahmad, supra. The 

male responEent has not shown the amount of his investment, and he 

has therefore failed to show that he qualifies for this exemption from 

labor certification. 

'On appeal, counsel has attacked our holding in Ahmad as an attempt 

to single out investors for treatment which is different from that accorded other section 245 applicants with respect to evidentiary requirements. We did not declare in Ahmad that an investor has a higher 

burden of proof to meet than other section 245 applicants. Instead, our 

ruling merely requires that an investor claimant come forward with the 

best available evidence of his investment. There are sound reasons for 

such a requirement. 

Section 212(a)(14) requires that the Department of Labor issue a labor 

certification for certain categories of aliens who seek to enter the United 

States to perform skilled or unskilled labor. An alien who qualifies under 

8 CFR 212.8(b)(4) is exempt from this requirement. The exemption, 

however, should not merely be a means of circumventing the labor 

certification requirement for a skilled or unskilled laborer. 

In the United States it is difficult to establish and operate a business 

of any significant size without generating some documentation reflecting 

the affairs of the enterprise. Large purchases of equipment and inventory are rare4 unaccompanied by invoices or other indicia of a contractual arrangeraent. The market value of land, buildings, equipment and 

machinery can be appraised. Accounting audits can be conducted to 

verify the financial status of most enterprises. Finally, records required 

to be kept by various governmental authorities will frequently provide 

some indicatian of the nature and extent of a business venture. 

In Matter of Ahmad, supra, we merely held that an investor claimant 

must be prepared to present some of this documentation, or satisfactorily explain why none of this exists for his business. We adhere to that 

ruling. 

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Interim Decision #2525 

Counsel also argues that the male respondent gave an explanation for 

the absence of supporting documentation. We, however, can find no 

satisfactory explanation in the record for the male respondent's failure 

to present invoices or other supporting evidence. Even though the male 

respondent may have destroyed or lost many of the important documents relating to his business, it is not unlikely that the companies from 

which he has made purchases have kept some record of the various 

transactions. Thus, as an example, the male respondent could have 

satisfied us that the payments to "NCR" were not pursuant to a lease 

agreement merely by obtaining a copy of the original contract from that 

firm. 

Counsel maintains that the male respondent gave credible testimony 

that all the checks presented in evidence related to the purchase of 

equipment, furnishings and fixtures for the restaurant. The immigration 

judge did not make a specific finding regarding the male respondent's 

credibility on this point. The immigration judge, however, did reaffirm 

his finding, initially made in his decision of August 26, 1970, that the 

male respondent was at times untruthful in his testimony at an earlier 

hearing. We agree with that finding. We decline to accept the male 

respondent's testimony on the amount of his investment because hehas 

been untruthful before, he has not presented_ documentation which 

appears to us to be available from some source, and he has failed to 

adequately explain the absence of that documentation. 

The male respondent has not shown that he is admissible to the 

United States for permanent residence under section 212(a)(14) of the 

Act. Neither respondent is statutorily eligible for adjustment of status. 

The immigration judge also concluded that the respondents did not 

merit a favorable exercise of discretion on their applications for section. 

245 relief. That conclusion, reached after, a weighing of the deinonstrated favorable and unfavorable factors, was correct. See Matter of 

Blas, 15 I. & N. Dec. 626 (A.G. 1976); Matter of Arai, 13 I. & N. Dec. 

494 (BIA 1970). 

The respondents have one United States citizen child, they evidently 

hold some property here, and they presumably have developed other 

ties to the United States over the course of their stay. They also have 

alleged hardship in the potential breakup of the family. The male respondent claims he could not reside in Japan, the country of his wife's 

birth, and he doubts that his wife would be permitted to accompany him 

to Taiwan. In our decision of August 29, 1975, we remanded in part so. 

that evidence of this potential separation could be introduced into the 

record. At the reopened hearing, no evidence was presented along these 

lines, other than the bare assertions of the male respondent. The respondents, who have the burden of proof on their section 245 applications, have not shown that their family would be separated permanently 

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Interim Decision #2525 

upon deportation. The remaining favorable factors do not outweigh the 

adverse factors present in their case. 

The immig:ration judge found that the female respondent entered the 

United States with a preconceived intent to remain permanently. Counsel concedes that finding to be correct. A preconceived intent to remain 

permanently is a significant factor bearing upon the exercise of discretion: See Soo Yuen v. INS, 456 F.2d 1107 (C.A. 9, 1972); Ameeriar v. 

INS, 438 F.2t1 1028 (C.A. 3, 1971), cert. dismissed, 404 U.S. 801 (1971); 

Chen v. Foley, 385 F.2d 929 (C.A. 6, 1967), cert. denied, 393 U.S. 838 

(1968); CubiLlos-Gonzalez v. INS. 352 F.2d 782 (C.A. 9, 1965); Castillo 

v. INS, 350 F.2d 1 (C.A. 9, 1965). In the past, we have denied adjustment of status to aliens who entered with a preconceived intent to 

remain permanently, even though the aliens had significant family ties 

in the United States. Matter of Muslemi, 121. & N. Dec. 249 (BIA 1967) 

(United States citizen spouse); Matter of Tonga, 12 I. & N. Dec. 212 

(BIA 1967) (1Jnited States citizen child and brother); Matter of RubioVargas, 11 I. & N. Dee. 167 (BIA 1965) (lawful permanent resident 

spouse). See also Matter of Allotey, 15 I. & N. Dee. 351 (BIA 1975). The 

female respondent does not merit a favorable exercise of discretion. 

As an adverse factor, the immigration judge found that the male 

respondent had been untruthful in his testimony during the hearing in 

1970. Counse:. disputes this finding. We, however, agree with the immigratinn judge. 

In 1970, the male respondent was a partner in a Chinese restaurant in 

Palo Alto, California. He was receiving income of approximately $800 a 

month from his participation in that venture (Tr. p. 30). He evidently 

spent varying amounts of time working at the restaurant as a busboy, 

cook, waiter or cashier (Tr. p. 29). 

Prior to revealing his participation in the restaurant on crossexamination, the male respondent testified that he had not been employed in the United States (Tr. p. 11), and that his means of support 

consisted of savings and family assistance from abroad (Tr. p. 15). The 

nature of the male respondent's employment was brought out on crossexamination and he thereafter amplified his testimony regarding his 

means of support (Tr. p. 45). 

The immigration judge, who had an opportunity to observe the 

witness, concluded that the male respondent's testimony had been untruthful. An immigration judge's evaluation of a witness is entitled to 

considerable weight in this respect. Matter of Teng, 15 I. & N. Dec. 

516 (BIA 1975); Matter of S—, 8 I. & N. Dec. 574 (BIA 1968); Matter 

of T—, 7 I. & N. Dec. 417 (BIA 1957). A denial of adjustment of status in 

the exercise of discretion was warranted in view of the male respondent's untruthful testimony. 

The immigration judge accorded both respondents the privilege of 

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voluntary departure in his decision of August 26, 1970. The Service has 

not challenged that grant, and the respondents have never been forced 

to exercise that privilege because of the various remands of the record 

which.we-have ordered. The respondents therefore are still entitled to 

the privilege of voluntary departure in accordance with the immigration 

judge's order of August 26, 1970. 

ORDER: The appeai is dismissed. 

Further order: Pursuant to the immigration judge's order, the respondents are permitted to depart from the United States voluntarily 

within 28 days from the date of this order or any extension beyond that 

time as may be granted by the district director; and in the event of 

failure so to depart, the respondents shall be deported in accordance 

with the immigration judge's order of August 26, 1970. 

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