                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 23 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BINBIN LEI,                                      No.   17-55571

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cv-09654-FMO-PJW
 v.

UNITED STATES CITIZENSHIP AND                    MEMORANDUM*
IMMIGRATION SERVICES; L.
FRANCIS CISSNA, Director, USCIS;
TRACY RENAUD, Acting Deputy
Director, USCIS; USCIS IMMIGRANT
INVESTOR PROGRAM OFFICE IPO;
NICHOLAS COLUCCI, Chief, IPO;
DONALD NEUFELD, Associate Director,
Service Center Operations of USCIS;
USCIS ADMINISTRATIVE APPEALS
OFFICE AAO; BARBARA VELARDE,
Chief, AAO; KIRSTJEN M. NIELSEN,
Secretary of the Department of Homeland
Security,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                   Fernando M. Olguin, District Judge, Presiding



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                        Argued and Submitted October 10, 2018
                                 Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and WHELAN,** District

Judge.

         Binbin Lei, a citizen of China, appeals the district court’s judgment in favor

of the United States Citizenship & Immigration Service (“USCIS”) in her action

under the Administrative Procedure Act (“APA”). She claims that the government

wrongfully denied her I-526 petition filed in support of her EB-5 visa. A foreign

citizen may apply for an EB-5 visa and receive lawful permanent residence if the

foreign citizen invests at least $500,000 in a “targeted employment area.” 8 C.F.R.

§ 204.6(f)(2). Applicants are required to file an I-526 petition seeking approval of

their investment and submit evidence to show the capital was “obtained through

lawful means.” 8 C.F.R. § 204.6(a), (j)(3).

         Lei claimed her invested funds were lawfully obtained from her husband.

The discrepancies and inconsistencies in Lei’s documents, however, included

missing transactions and differing bank letterheads. These discrepancies

reasonably led USCIS to conclude that Lei failed to meet her burden to establish by

a preponderance of the evidence that the funds for her investment were derived


         **
            The Honorable Thomas J. Whelan, United States District Judge for
the Southern District of California, sitting by designation.
                                             2
from a lawful source. See 8 U.S.C § 1361; Matter of Chawathe, 25 I. & N. Dec.

369, 374–76 (AAO 2010) (the burden of proof rests solely on the alien investor to

establish by a preponderance of the evidence that she is fully qualified for the

benefit sought).

       After a de novo review, the USCIS Administrative Appeals Office denied

Ms. Lei’s petition, and added the related reason that Ms. Lei failed to demonstrate

the “complete path” of her funds.

      On appeal, counsel for Lei argues in effect that this Court must re-examine

the evidence and make a de novo determination that Lei met her burden to show

that the funds were obtained from a lawful source. Not so. Instead, we review

only for abuse of discretion, or in the APA’s terms, to determine whether the

decision was arbitrary, capricious, . . . or otherwise not in accordance with law. 5

U.S.C. § 706(2)(A); Fence Creek Cattle Co. v. U.S. Forest Service, 602 F.3d 1125,

1132 (9th Cir. 2010). We agree with the district court that the USCIS denial was

fully supported by the record and applicable regulations, and hence was not

arbitrary, capricious, or otherwise not in accordance with law.

      AFFIRMED.




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