                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-1999

Mwongera v. INS
Precedential or Non-Precedential:

Docket 98-6436




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Filed July 22, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-6436

DAVID KINYUA MWONGERA,
       Petitioner

v.

IMMIGRATION & NATURALIZATION SERVICE,
       Respondent

On Review of a Decision of the
Board of Immigration Appeals
(I.N.S. No. A73 514 152)

Submitted Under Third Circuit LAR 34.1(a)
June 8, 1999

Before: SLOVITER and MANSMANN Circuit Judges
and O'NEILL,* District Judge

(Filed July 22, 1999)

Steven A. Morley
Bagia & Morley
Philadelphia, PA 19106

 Attorney for Petitioner



_________________________________________________________________

* Hon. Thomas N. O'Neill, Jr., United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       David W. Ogden
        Acting Assistant Attorney General
       Joan E. Smiley
        Senior Litigation Counsel
       Steven J. Kim
        Attorney
       Karen F. Torstenson
        Attorney
       Michael P. Lindemann
        Attorney
       Alison M. Igoe
        Attorney
       Office of Immigration Litigation
       Civil Division
       Department of Justice
       Washington, D.C. 20044

        Attorneys for Respondent

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Introduction

David Kinyua Mwongera petitions for review of the Board
of Immigration Appeals' ("BIA") decision ordering him
excluded from the United States on the grounds that he
was not in possession of a valid immigrant visa and had
procured a visa by fraud. For the reasons set forth
hereafter, we will deny the petition for review.

II.

Facts and Procedural History

Mwongera is a native and citizen of Kenya. He is the vice-
president and sales manager for a family business called

                                2
One Way Agencies, which exports Kenyan crafts for sale in
the United States and other countries. R. at 151-53. On
August 1, 1993, Mwongera entered the United States for
the first time on a temporary business visitor visa, referred
to by the Immigration and Naturalization Service ("INS") as
a "B-1" visa. See 8 C.F.R. S 214.2(a)(10). Mwongera
obtained the B-1 visa on the basis of his representation to
the consulate in Kenya that he was coming to the United
States "to promote and market the African goods" that his
company sold. R. at 157.

Although this visa was valid only through November 20,
1993, Mwongera secured an extension until February 20,
1994. R. at 333-39. On February 23, 1994, three days after
the visa expired, Mwongera left the United States and
returned to Kenya. R. at 171. At his hearing before the
Immigration Judge, Mwongera testified that during this first
visit (of nearly six months' duration) he only took one or
two orders but that he also made some cash sales and used
the proceeds to pay his hotel and phone bills. R. at 167-68.

Mwongera returned to the United States on March 27,
1994, using the same visa. He requested, and was granted,
a six-month stay. He successfully requested a five-month
extension of that visa from September 27, 1994 to February
12, 1995. R. at 344. Mwongera testified that he returned to
this country on that second trip "[b]ecause I had left
merchandise here and I had not accomplished what I came
for in 1993 so I still wanted to make sure that I achieved
my goal, looking for customers." R. at 172. During this
visit, Mwongera incorporated his business in Pennsylvania,
obtained a driver's license and social security card,
purchased a van for company use, opened bank accounts,
and made arrangements to ensure that customers could
pay for goods using credit cards. R. at 175-78. He testified
that he began selling more goods directly to customers, as
opposed to taking orders, and that he would receive more
goods from his sister in Nairobi when his stocks began to
dwindle. R. at 184. Mwongera left the United States for
Lisbon on approximately February 19, 1995 and returned
to Kenya thereafter. R. at 298.

After returning to Kenya, Mwongera applied for a renewal
of his B-1 visa in March 1995, requesting a stay offive

                               3
months. He stated on the application that the purpose of
his visit was: "Business promotion and attend trade
shows." R. at 318. In answer to the question "Have you ever
been in the U.S.A.?," Mwongera responded, "yes" and stated
that he had been in the United States for "six months in
1993 and six months in 1994." R. at 321. In fact, he had
been in the country for five months in 1993 and for a total
of eleven months in 1994. Mwongera failed to note his six-
week stay in 1995. In response to the application's request
that the applicant list the countries where the applicant
lived for more than six months during the last five years,
Mwongera listed only Kenya. R. at 320.

The renewal was granted on March 20, 1995, and
Mwongera arrived in the United States for the third time on
March 31, 1995. R. at 316, 318. He stayed in this country
until July 5, 1995, at which point he traveled to Lisbon. On
attempting to reenter the United States on July 23, 1995,
Mwongera was detained by INS officers who questioned him
about his intentions and the scope of his business dealings
in the United States. Mwongera submitted a thirteen-page
handwritten statement. R. at 305-17. The INS then
commenced exclusion proceedings.

Following a hearing on October 8, 1996, the Immigration
Judge ("IJ") concluded that because Mwongera (1) did not
qualify as a temporary visitor for business, and thus did
not possess a valid visa and (2) made misrepresentations
on the March 1995 visa application that amounted to fraud
or willful misrepresentation, he was excludable under INA
S 212(a)(7)(A)(i)(I), 8 U.S.C. S 1182(a)(7)(A)(i)(I) (immigrant
not in possession of a valid visa) and INA S 212(a)(6)(C)(i), 8
U.S.C. S 1182(a)(6)(C)(i)(visa procured by fraud or
misrepresentation).

Mwongera appealed the IJ's ruling to the BIA, arguing
that he engaged in the proper use of a B-1 visa and that
the INS failed to establish that he had an intent to defraud.
The BIA, in a decision dated October 22, 1998, rejected
both arguments and affirmed the IJ's order of exclusion.

With respect to the issue of the B-1 visa, the BIA found
that Mwongera's business had developed into one in which
he no longer took orders to be filled in Kenya, but rather

                                4
sold directly to consumers in the United States. The BIA
also found that Mwongera's plans were vague and open-
ended with respect to his contemplated stay in the country,
and that he had spent twenty of the previous twenty-four
months in the United States. Accordingly, the BIA ruled
that Mwongera's B-1 visa was not appropriate for his
activities because Mwongera was not contemplating a
temporary stay and because his business had developed
such that his commercial activities had become
employment for which he was not authorized. R. at 5-7.

Turning to the fraud issue, the BIA found that Mwongera
had significantly understated his time in the United States,
noting that the IJ took testimony from INS deportation
officer Linda Hoechst, who testified that if she had been
presented with accurate representations of Mwongera's
prior time in the United States, she would not have
automatically granted the request but would have pursued
a line of inquiry about Mwongera's activities. R. at 279-81.
On the basis of this evidence, the BIA ruled that Mwongera
had in fact engaged in willful misrepresentation of material
facts on his visa application. R. at 8.

Mwongera timely sought review. We have jurisdiction over
this petition for review under 8 U.S.C. S 1105a(a), as
amended by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009 (Sept. 30, 1996). Under the regime created
by IIRIRA, Mwongera's case falls under the "transitional
rules" for judicial review, set forth at IIRIRAS 309(c)(4)(A),
which direct that judicial review of exclusion orders is to be
conducted pursuant to 8 U.S.C. S 1105a(a) and (c).

Our review of the BIA's findings of fact is limited to
whether they are "supported by reasonable, substantial,
and probative evidence on the record considered as a
whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We
will reverse the BIA's determinations of fact only if the
evidence "was so compelling that no reasonable factfinder
could fail to find" for the petitioner. Id. at 483-84. To the
extent that the BIA's decision rests on an interpretation of
the agency's governing statute on a matter as to which
Congress has not expressed a clear intent, we defer to the
agency's reasonable interpretation of the statutory

                               5
language. See INS v. Aguirre-Aguirre, 119 S.Ct. 1439, 1445
(1999).

III.

Discussion

Mwongera argues first that the BIA erred in finding that
he was not admissible as a visitor for business purposes.
Stating that "[t]he INS regulations regarding proper use of
a B-1 visa [are] subject to varying interpretations," Pet. Br.
at 12, Mwongera contends that his activities in the United
States were permissible temporary business activities
rather than impermissible local employment under the INA.

The Immigration and Nationality Act ("INA"), describes a
non-immigrant business visitor as "an alien (other than one
coming for the purpose of study or of performing skilled or
unskilled labor . . . ) having a residence in a foreign country
which he has no intention of abandoning and who is
visiting the United States temporarily for business . . . ."
INA S 101(a)(15)(B), 8 U.S.C. S 1101(a)(15)(B). The agency
has promulgated regulations that elaborate on the statute.
The pertinent regulation states:

       An alien is classifiable as a nonimmigrant visitor for
       business (B-1) or pleasure (B-2) if the consular officer
       is satisfied that the alien qualifies under the provisions
       of INA 101(a)(15)(B), and that:

       (1) The alien intends to leave the United States at the
       end of the temporary stay (consular officers are
       authorized, if departure of the alien as required by
       law does not seem fully assured, to require the
       posting of a bond with the Attorney General in a
       sufficient sum to ensure that at the end of the
       temporary visit, or upon failure to maintain
       temporary visitor status, or any status subsequently
       acquired under INA 248, the alien will depart from
       the United States);

       (2) The alien has permission to enter a foreign
       country at the end of the temporary stay; and

                               6
       (3) Adequate financial arrangements have been made
       to enable the alien to carry out the purpose of the
       visit to and departure from the United States.

22 C.F.R. S41.31(a). The regulation goes on to define
"business" as used in the statute as "refer[ring] to
conventions, conferences, consultations and other
legitimate activities of a commercial or professional nature.
It does not include local employment or labor for hire. . . . .
An alien seeking to enter as a nonimmigrant for
employment or labor pursuant to a contract or other
prearrangement is required to qualify under the provisions
of S 41.53."

The BIA concluded that Mwongera's activities exceeded
the scope allowed by a B-1 visa for two reasons: (1) because
Mwongera's intended visit could not be considered
"temporary" and (2) because Mwongera's activities crossed
the line between permissible "business" and impermissible
employment. We find that the BIA's findings have
substantial support in the record and its conclusions of law
are based upon a reasonable interpretation of the statute.

In determining what constitutes a "temporary" visit
within the intendment of INA S 101(a)(15)(B), the BIA has
stated that the term "certainly does not contemplate a
potentially limitless visit to the United States." Matter of
Lawrence, 15 I.&N. 418, 420 (BIA 1975). While
acknowledging that "[t]here are no inflexible rules to be
applied when deciding what is `temporary' within the
context of a business visit," the Board noted that "we have
never held that an alien could qualify as a business visitor
if his business activities almost exclusively involved the
full-time management of a United States enterprise." Id. at
419-20.

In this case, the Board found Mwongera's activities to be
sufficiently analogous to those of the aliens in Lawrence
that Mwongera's business activities could not be considered
"temporary." In Lawrence, two Canadian citizens sought
entry on a B-1 visa. They were regularly engaged, through
a business they incorporated in the United States, in the
buying and selling of improved real estate. The BIA rejected
the contention of one of the aliens that he was a temporary

                               7
business visitor, stating: "The . . . respondent did not seek
to enter the United States for a reasonably short and
relatively definite period of time. Nor was he coming here
with any limited goal in mind." Id. at 420. The Board went
on to state, "It appears that the . . . respondent might easily
decide to remain here permanently to supervise the day-to-
day operations of [the company], even though he may
choose to return to Canada on a regular basis." Id.

The BIA found that Mwongera, like the alien in Lawrence,
"had no plans for the foreseeable future, but intend[ed] to
continue coming to the United States." R. at 5. This is
supported by various statements in Mwongera's testimony,
including, for example, his statement that if "granted
authorization, I'll be coming here as I was doing before, just
coming in and out." R. at 236. Furthermore, citing
Mwongera's testimony that he could not hire a United
States citizen to do the work that he was performing, the
BIA also found that "absent his continued presence his
company could not continue to do business in the United
States." R. at 6. Accordingly, the Board concluded that, like
the aliens in Lawrence, Mwongera had "set no definite goals
and made no plans to accomplish those goals," and that his
admission to the country could not be regarded as
temporary. We find ample support in the record for the
Board's findings, and therefore reject Mwongera's
contention that the Board failed adequately to consider the
record as a whole.

The BIA's second ground for holding that a B-1 visa was
not appropriate in this case was its conclusion that
Mwongera's activities were not "business" activities as that
term is used in the statute. The BIA has repeatedly ruled
that if the function performed by the visitor "is a necessary
incident to international trade or commerce" the visitor's
commercial activities are within the proper scope of a B-1
visa. See, e.g., Matter of Duckett, 19 I.&N. 493, 497 (BIA
1987); Matter of Camilleri, 17 I. & N. Dec. 441, 444 (BIA
1980); Matter of Cote, 17 I.&N. Dec. 336, 338 (BIA 1980);
Matter of Neill, 15 I.&N. 331, 333 (BIA 1975). The BIA has
found such a function in cases involving truck drivers who
deliver goods from Canada for delivery to the United States,
see Camilleri, 171 I.&N. at 444; Cote, 17 I.&N. at 338, and

                               8
a railroad clerk employed by a Canadian railroad who
entered the country on a daily basis for a portion of his
shift in order to clear his employer's railroad cars for
transport from the United States to Canada, see Duckett,
19 I.&N. at 493. Conversely, the BIA has found that an
alien engineer's activities were not incident to international
trade when his repeated, short visits to the United States
were for the purpose of "extending his professional
engineering practice to the United States." Neill, 15 I.&N. at
334.

In this case, the Board found that, like the alien in Neill,
"the majority of [Mwongera's] time spent in the United
States is wholly central to the continued efficacy of his
company's extension into the United States market." R. at
6. We find substantial evidence in the record, in the form
of Mwongera's own testimony, to support this conclusion.
Furthermore, the Board's ruling is in line with its prior
precedents. Mwongera was not simply delivering goods
internationally, as was the case in Camilleri and Cote.
Rather, by his own testimony he made it clear that he was
extending a retail sales business that was incorporated in
the United States. This activity places him much closer to
the engineer in Neill, who also sought to penetrate the
United States market. Accordingly, the Board did not err in
finding that Mwongera was "employed" without
authorization.

Mwongera places much emphasis on the idea that the
line between permissible business activities and
impermissible employment is a "murky" one. Pet. Br. at 16.
The argument that there is a lack of clarity in the definition
of "business" under the INA, however, actually proves far
too much. Where, as here, Congress has not expressed"an
intention on the precise question," Chevron U.S.A. v.
Natural Resources Defense Council, 467 U.S. 837, 843 &
n.9 (1984), of what constitutes business activities
appropriate for a B-1 visa holder, we are obliged to defer to
the agency's interpretation of its governing statute unless it
is unreasonable. Id. In determining that Mwongera's
activities crossed the line that divides activities that are a
"necessary incident to international trade or commerce" on
the one hand, and those that involve "local employment" on

                               9
the other, the BIA has engaged in a process of case-by-case
interpretation of the statute. As the Supreme Court stated
in INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987),
and stressed again in its most recent immigration decision,
Aguirre-Aguirre, 119 S.Ct. at 1445, the BIA is accorded
Chevron deference when it interprets ambiguous statutory
provisions "through a process of case-by-case adjudication."
There is no ground on which to hold unreasonable the
BIA's conclusion that one who repeatedly enters the
country to engage in the day-to-day operation of a United
States entity that sells goods within the United States is not
a temporary business visitor under the INA.

Accordingly, we reject Mwongera's challenge to the BIA's
ruling on the validity of his B-1 visa. Although this ground
fully supports Mwongera's exclusion from the United
States, we must address the fraud or willful
misrepresentation issue, as a finding of excludability on
this ground will add a further disability by barring
Mwongera permanently from the United States unless he
obtains a waiver. See Matter of Shirdel, 19 I. & N. Dec. 33,
34 (BIA 1984).

Mwongera does not argue that in filling out his visa
application he accurately represented his prior stays in the
United States. Rather, he urges that he did not have an
intent to deceive and that his misstatements were not
material. We address these contentions in turn.

First, we reject Mwongera's contention that the INS is
required to show an intent to deceive in order to satisfy the
statute. To the contrary, the INS must show that the alien
obtained a visa by fraud (with its concomitant intent
requirement) or by "willfully misrepresenting a material
fact." INA S 212(a)(6)(C)(i); 8 U.S.C.S 1182(a)(6)(C)(i). "The
element of willfulness is satisfied by a finding that the
misrepresentation was deliberate and voluntary." Witter v.
I.N.S., 113 F.3d 549, 554 (5th Cir. 1997). The INS does not
need to show intent to deceive; rather, knowledge of the
falsity of the representation will suffice. See Id.; Forbes v.
INS, 48 F.3d 439, 442 (9th Cir. 1995); Espinoza-Espinoza v.
INS, 554 F.2d 921, 925 (9th Cir. 1977).

In concluding that Mwongera had made a willful
misrepresentation on his visa application, the BIA found

                               10
that Mwongera significantly understated his prior stay in
the United States by stating that he had been in the
country for six months in 1994 when he had in fact been
in the country for a total of eleven months from March of
1994 to February of 1995. R. at 7. The BIA found
Mwongera's explanations for the discrepancy to be
"contradictory, self-serving, and unconvincing." R. at 8.

We find the record consistent with the BIA's findings.
Mwongera gave three distinct and not-entirely consistent
explanations for misstating his length of stay: First, he
stated that he "did not know that it mattered and[that he]
should be precise." R. at 226. Second, he offered that he
"thought what mattered was the original entry[and that]
the extension doesn't matter." R. at 228. Third, when
Mwongera was asked why he failed to note his eleven-
month stay in the United States in response to the visa
application's query regarding countries where he had lived
for more than six months during the past five years, he
answered that he "did not understand what living meant."
R. at 231. Accordingly, we conclude that substantial
evidence supports the BIA's findings and that Mwongera
has not provided evidence so compelling that a reasonable
fact finder would be compelled to find in his favor on the
question of the willfulness of the misrepresentation.

Next, Mwongera urges that his statement regarding his
prior stay in the country was immaterial. We disagree. A
statement is material

       if either (1) the alien is excludable on the true facts, or
       (2) the misrepresentation tends to shut off a line of
       inquiry which is relevant to the alien's eligibility and
       which might well have resulted in a proper
       determination that he be excluded.

Matter of Kai Hing Hui, 15 I. & N. Dec. 288, 289 (BIA
1975)(quoting the Attorney General's opinion in Matter of
S-- and B-- C--, 9 I. & N. Dec. 436, 448-449 (A.G.1961));
Cf. Kungys v. United States, 485 U.S. 759, 772
(1988)(holding, under statute providing for the
denaturalization of naturalized citizens, 8 U.S.C.A.
S 1451(a), that concealment or misrepresentation which has
"a natural tendency to influence the decisions of the
Immigration and Naturalization Service" is material).

                                11
In this case, the record fully supports a determination
that both of the alternative definitions of materiality set
forth in Matter of Kai Hing Hui are satisfied. As the BIA
noted, INS Agent Hoechst testified that if she had known of
the discrepancy between Mwongera's actual and reported
lengths of stay, she would have pursued a further inquiry
as to Mwongera's business activities and would have denied
the visa on the basis of fraud. R. at 8. Consequently, the
record supports a determination that Mwongera was
excludable on the true facts and that his misrepresentation
shut off a relevant line of inquiry. We conclude therefore
that the BIA correctly found Mwongera excludable on the
basis of a willful, material misrepresentation on his visa
application.

IV.

Conclusion

For the foregoing reasons, we will deny the petition for
review.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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