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Keywords

plaintiffdefendantsummary judgmenttreatynaturalization
plaintiffdefendantsummary judgmenttreatynaturalization

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Kim v. District Director

Facts

Kim, a citizen of the Republic of Korea, came to the United States in 1970 as a visitor and later obtained student nonimmigrant status. In 1974, he applied for nonimmigrant investor treaty status, which was denied by the Immigration and Naturalization Service (INS). The district court upheld the INS's decision, concluding that Kim's investment in a drive-in restaurant was marginal and did not meet the substantial investment requirement. Kim argued that he had made a substantial capital investment, but the court found that his investment was primarily for earning a living.

Kim, a citizen of the Republic of Korea, came to the United States in 1970 as a visitor. He later received student nonimmigrant status. In 1974 Kim applied for 'treaty investor' nonimmigrant status. In 1975 his petition was [**2] denied by the District Director of the INS in Seattle. Kim owns Stan's Drive-In, a fast food restaurant in Seattle. He purchased the restaurant for $ 29,500, making a down payment of $ 9,200 and giving a mortgage for the balance, payable at the rate of $ 450 per month. He made miscellaneous expenditures amounting to $ 2,221, resulting in an initial investment of approximately $ 11,500.

Issue

Whether the INS properly construed the term 'investing a substantial amount of capital' as excluding investments solely for the purpose of making a living under 22 C.F.R. 41.41(a).

Whether the INS properly construed the [*715] term 'investing, a substantial amount of capital,' as used in 8 U.S.C. 1101(a)(15)(E)(ii) and the Korean Treaty, as excluding investments solely for the purpose of making a living under 22 C.F.R. 41.41(a); and (2) whether the INS abused its discretion in denying Kim's application on the ground that his investment was in 'a marginal enterprise solely for the purpose of making a living'.

Rule

An alien shall be classifiable as a nonimmigrant treaty investor if he establishes that he qualifies under the provisions of 8 U.S.C. 1101(a)(15)(E)(ii) and is not seeking to proceed to the United States in connection with the investment of a small amount of capital in a marginal enterprise solely for the purpose of earning a living.

An alien shall be classifiable as a nonimmigrant treaty investor if he establishes to the satisfaction of the consular officer (or in this case, the INS) that he qualifies under the provisions of ( 8 U.S.C. 1101(a)(15)(E)(ii) ) And that: (1) He intends to depart from the United States upon the termination of his status; and (2) he is an alien who has invested or is investing in a bona fide enterprise and is not seeking to proceed to the United States in connection with the investment of A small amount of capital in a marginal enterprise solely for the purpose of earning a living . . .. 22 C.F.R. 41.41(a) (emphasis supplied).

Analysis

The court applied the rule by examining the nature of Kim's investment in the drive-in restaurant. It concluded that the investment was marginal, as evidenced by the low profits generated and the reliance on the business for personal income. The court emphasized that the investment did not meet the threshold of being substantial, as it was primarily aimed at supporting Kim's living expenses rather than contributing significantly to the economy.

The INS found that Kim had failed to establish that his investment in the drive-in restaurant was anything more than a marginal investment made solely for the purpose of making a living in the United States. Kim contends that the INS erred in basing the denial of his application on the profitability of the drive-in. He argues that a proper interpretation of the word 'substantial' in both the Immigration and Nationality Act and the Korean Treaty requires considerations of both an enterprise's profitability and its benefits to the American economy.

Conclusion

The court affirmed the district court's grant of summary judgment for the defendant Immigration and Naturalization Service, which had denied plaintiff's petition for nonimmigrant investor treaty status because his investment in the United States was not substantial and was merely for the purpose of earning a living.

The court affirmed the district court's grant of summary judgment for the defendant Immigration and Naturalization Service, which had denied plaintiff's petition for nonimmigrant investor treaty status because his investment in the United States was not substantial and was merely for the purpose of earning a living.

Who won?

The defendant, United States Immigration and Naturalization Service, prevailed because the court found that Kim's investment did not meet the substantiality requirement and was merely for earning a living.

The defendant, United States Immigration and Naturalization Service, prevailed because the court found that Kim's investment did not meet the substantiality requirement and was merely for earning a living.

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