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Park v. Barr

United States Court of Appeals, Ninth Circuit

January 7, 2020

Woul Soo Park, Plaintiff-Appellant,
William P. Barr, Attorney General; Chad F. Wolf; Ken Cuccinelli; Susan M. Curda; Corinna Luna, Defendants-Appellees.

          Argued and Submitted November 5, 2019

          Appeal 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.

          Sergio 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.

         SUMMARY [**]


         The 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.

         Park, a 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 that marriage.

         USCIS 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.

         The 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.

         Rejecting 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.

         The 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.


          PER ...

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