and Submitted November 5, 2019
from the United States District Court for the Central
District No. 2:16-cv-09329-SJO-FFM of California S. James
Otero, District Judge, Presiding
Shirley Wei (argued), Law Office of Shirley Wei, Los Angeles,
California, for Plaintiff-Appellant.
Sarkany (argued), Counsel for National Security; Kathleen A.
Connolly, Senior Counsel for National Security; William C.
Peachey, Director, District Court Section; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellees.
Before: Jerome Farris, M. Margaret McKeown, and Barrington D.
Parker, Jr., [*] Circuit Judges.
panel reversed the district court's denial of Woul
Park's petition challenging a decision by the United
States Citizenship and Immigration Services
("USCIS") denying her application for
naturalization, and remanded, holding that: a B-2
nonimmigrant whose lawful status has lapsed is precluded from
establishing lawful domicile in California by operation of
federal law; and, therefore, Park's divorce and
subsequent marriage to a U.S. citizen were valid under
California law, she was properly admitted for permanent
residency, and is entitled to naturalization.
Korean citizen, married Byung Gug Choi in Korea, and later
came to the United States on a B-2 tourist visa in 2003. She
overstayed her visa and has resided in California ever since.
Park and Choi obtained a valid divorce under Korean law, and
Park later married James Yong Park, a U.S. citizen, in
California and received lawful permanent residency based on
then denied Park's application for naturalization. USCIS
found that Park and Choi were California domiciliaries when
their Korean divorce decree was executed and, as a result,
the divorce could not be recognized under California law.
Having determined that Park's divorce was invalid, USCIS
concluded that her marriage to James Yong Park was similarly
invalid, and therefore, Park was never lawfully admitted for
permanent residency. Accordingly, USCIS denied Park's
application for naturalization because she could not satisfy
the requirement of having been lawfully admitted for
permanent residency. The district court granted summary
judgment in favor of the Government.
panel observed that the case turned on whether Park was
"domiciled" in California and that the validity of
Park's marriage to James Yong Park was governed by
California law. The panel explained that, under California
law, domicile is established by physical presence and an
intention to remain indefinitely. However, the panel further
explained that federal immigration laws impose outer limits
on a state's freedom to define it. Here, the B-2 tourist
visa classification requires nonimmigrants to maintain a
residence in their country of citizenship with no intention
of abandoning it. It follows, the panel explained, that
Congress has not permitted B-2 nonimmigrants to lawfully form
a subjective intent to remain in the United States; such an
intent would inescapably conflict with Congress's
definition of the nonimmigrant classification. Therefore, the
panel held that Park, as a nonimmigrant who entered the
United States and unlawfully overstayed her visa, was
precluded from establishing domiciliary intent to remain in
the United States. As a result, her divorce and subsequent
marriage were valid, she had been lawfully admitted for
permanent residence, and was thus entitled to naturalization.
the government's contention that those who violate the
conditions of their visa are no longer subject to the
statutes that preclude them from establishing a lawful
subjective intent to remain, the panel explained that it
would be inconsistent to conclude that Congress sought to
preclude nonimmigrants who comply with federal immigration
law from the benefits that flow from state domiciliary status
while permitting nonimmigrants who violate their visa
conditions to share in them.
panel also addressed In re Marriage of Dick, 15
Cal.App.4th 144 (Ct. App. 1993), in which the California
Court of Appeal held that nonimmigrant status does not
preclude a finding of residence under California law for
purposes of obtaining a dissolution of marriage. The panel
declined to read Dick as applicable to this case,
explaining that the California Court of Appeal in
Dick interpreted the word "residence"
rather than "domicile," that the cases turned on
different state codes, and that USCIS and the district court
erred in interpreting "domicile" in line with the
interpretation of "residence" in Dick
given the conflict with federal law that would result from
such an interpretation.