AILA Press Release on Ninth Circuit Immigrant Investors Decision

American Immigration Lawyers Association

FOR IMMEDIATE RELEASE

May 9, 2003

Contact: Judith Golub
(202) 216-240
jgolub@aila.org

Federal Appeals Court Rules in Favor of Immigrant Investors

A federal appeals court has ruled that the Immigration and Naturalization Service (INS) (now the Bureau of Citizenship and Immigration Services) may not apply new rules retroactively to certain immigrant investors. The April 29, 2003 decision by the U.S. Court of Appeals for the Ninth Circuit in Chang v. United States “is a victory for immigrant investors and proves that the immigration service must follow due process when it changes the rules of the game,” said Stephen Yale-Loehr, co-chair of the Investors Committee of the American Immigration Lawyers Association (AILA).

The Chang case involves more than 200 foreign investors and their family members who sued the U.S. government in federal court in San Francisco in 1999, alleging that the INS illegally changed its rules governing the immigrant investor visa category.  The case is the largest of almost a dozen lawsuits filed against the INS over its mishandling of the immigrant investor visa program. 

The investors all obtained conditional green cards by investing in U.S. companies.  The plaintiffs allege that after the INS granted them conditional resident status, the INS abruptly changed its rules interpreting the immigrant investor program in mid-1998, and is applying the new restrictive rules retroactively.  Because of the INS’ changes, the plaintiffs could now be deported from the United States, even though they complied with the rules in effect when they invested their money.  The plaintiffs claim that the INS’s actions violate their constitutional due process rights, the Administrative Procedure Act, and the U.S. immigration statute.

The Ninth Circuit held that the INS could not change the rules of the game by applying its new, more restrictive interpretations retroactively to investors who had already received conditional green cards and who are now trying to have those conditions removed. The court admonished the INS that it was not “unreasonable” for immigrant investors to expect a grant of permanent residency by the INS when they had held up their end of the bargain, even if the INS subsequently decided to change the rules

Ira Kurzban, lead counsel for the immigrant investors, stated: “The implications of the Ninth Circuit’s decision extend beyond this group of immigrant investors.  By rebuking the INS for applying the 1998 precedent decisions to the investors’ petitions, the court stated important principles that could potentially apply to any action undertaken by the government that is impermissibly retroactive.”

Marc Van Der Hout, co-counsel for the immigrant investors, added:  “The Ninth Circuit’s decision in Chang provides critical relief for immigrant investors and their families who have invested millions of dollars in the U.S. -- with the hopes of creating jobs and improving the U.S. economy -- but who got caught in the change in the INS’s adjudication polices for immigrant investor cases.  The Ninth Circuit recognized that these investors should not be penalized for the INS’s abrupt, unannounced change in policy, and has now set the stage for these investors and their families to finally become full-fledged permanent residents.”

For more information or press interviews, contact Judith Golub, Senior Advocacy Director at AILA (ph: 202-216-2403; email: jgolub@aila.org), or Stephen Yale-Loehr, Co-Chair, AILA Investors Committee (ph: 607-273-4200; email: SYL@twmlaw.com).

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Founded in 1946, AILA is a nonpartisan, nonprofit organization that provides its Members with continuing legal education, information, and professional services. AILA advocates before Congress and the Administration and provides liaison with the INS and other government agencies. AILA is an Affiliated Organization of the American Bar Association.

American Immigration Lawyers Association
918 F Street NW, Washington, DC, 20004-1400
Phone (202) 216-2400; Fax (202) 783-7853
www.aila.org

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