Kosei Inoue, A089 244 823 (BIA July 9, 2013)

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DiAmoreSiah, CarmenLaw Ofce of Carmen IAmoreSiah735 Bishop Street, Ste 201Honolulu, H 96813

Name: NOUE KOSE

Dpn Jtic

Executive Oce r Immigaion Review

B ig AppsOc

50 Lesbu Pik S 000FaJ Chrch Vrgin 204

S/CE Oice of Chief Counsel O595 Aa Moana Boulevardonolulu, 96813999

A 089-24823

Date of ths notce: /9/2013

Encosed is a copy of he Boad's decision and ode in he above-eenced cae.

Encosue

Mb:Py, Rg

Sinceely,

D cDonna CaChie Clek

wam k

Cite as: Kosei Inoue, A089 244 823 (BIA July 9, 2013)



U.S Department ofJusticeExecutive Oce mmigaion Review

Decision of he Board of Imigaion Appeals

Fas Church, Virginia 22041

Fe: A089 244 823 - Honoluu HI

In re KOSEi NOUE

IN REMOVAL PROCEEDINGS

APPEAL

Date

ON BEHALF OF RESPONDENT Carmen Amore-Sah Esqure

ON BEHALF OF HS: Chandu ateyAssstant ChefCounsel

CHARGE

JUL - 9 2013

Notce Sec. 237(a)(l )(C)(), &N Act 8 U.S.C § 1227(a)()(C)()] Nonmmgrat volated condtons f status

APPLICATION Termnaton; voluntay depaure

e respodent appeals om the decson of he Immaton udge dated October 7 201,denyng te respondents moton to tenate ndng the respondent removabe as charged andgrtng the respondent voluntary departure under sectn 240B(b) of the Imgraton and Natonaly Act, 8 U.S.C. § 229c(b). The appeal wl be dsmssed.

We a te decson of te Immgraton Judge concludng that te respndent sremovable under secto 237(a)(l )(C)() of the Act 8 U.SC § 227(a)( l )(C)() because hevolated the condtns of hs "E2 nonmmant when hs employment was ternatedby s pettonng employer ( J. at 56). We do not nd clear eor n te Immgraton Judge'sndngs of ct related to the respondents E2 status or hs empoymet story. The respondent wa admted to he Unted States on May 30 2009 ased on a nonmgrant E2 vsa pettonthat was led on hs behalf by Kaze, Inc. ( J. at 4) Kaze Inc. ndcated n the vsa petton that the respondent woud seve as a general manager and would be pad $60000 per year (.J. at 4)The respndent was authorzed to reman n the Unted States pusuant to hs admsson n E2stas assmng he comped wth al the condtons of such saus unt May 29 201 (. J at 4)Kaze Ic teated the respondents employment on October 29 2009 (.J at 4) On

November 3 2009 the respondent ed an appcaton to extend or change nonmgrant status(Form I539) n whch e requested to change hs staus o E2 to B1 ( J at 4) hsapplcatn was dened b te ted States tesp nd graton Seve SS) on January 4, 200 (. J at 45).

We ar te Imgratn Judges detenaton that the termnaton of the respondentsemployent wt e pettonng treaty nvestor constutes a volaton of a condtn of terespondents stats. The respondents satus n the Unted States was based sely on semplyee reatonshp wt te treaty nvestr 8 CF.R. § 214.2(e)(3). Once ths empoyent relatonshp was tenated the respondent voated a cndton of hs status. See 8 CFR.§ 214.2(e)(8) (dscussng te terms and condtns ofE treaty saus).




A089 244 823

In hs regard we nd npersasve the respondens argumen hat he mmgraton Judgeered n ndng hm removabe as charged becase he I539 denal notce ndcaes that herespondent "may reman n the cent nonmmgran stts ntl the expraton date ndcaedon the appcan Arrval and epe Record (Form 94) (J a 45 h 3 a 43) Thevery nex senence n he noce ndcaes "[however shoud the applcant l o mantan

nonmm staus he applcan mus depar the Uned Staes (xh 3 at 43) As theresponden d no manan vald 2 nonmmgran saus becase hs empoymen wastenated he 539 dena noce aords hm no proecon om remova

Fnally we nd no bass to renstae ether a pror 2 vsa led by anoher petoner andapproved on October 2 2006 or he 2 vsa by whch he respondent obtaned hs most recent admsson nto he Unted States (Respondents Br a 4) We do no nd cle eor n eImmgraton Jdges deenaon ha he responden d no esablsh he was the vcm ofad (J at 6) Moreover even assmng arguendo hat he responden was he vcm of audwh respec to he 2 petons nether the Immgraon Judge nor ths Boar has jursdctonover sch pettons

In sum we a he mmgratons deermnaon a the responden voaed thecondons of hs stats when hs employmen wh he eay nvesor was termnaed Weherere aso arm the conngent deermnaton ha the respondent s removable nder secton237(a)()(C)() of e Ac because he volated he condtons of hs 2 sats

The Immaton Jdge graned the responden a 60ay vounary epare perocondoned upon he posng of a volntary deparure bond n the amoun of $500 o theDepaent of Homeand Secry wthn ve busness ays om he dae of the order (J at 7)Eecve Janay 20 2009 prsuan to 8 CFR § 24026(c)(3)() an aen gred volntarydeparure shal whn 30 days of ng an appeal wth the Board sbmt scen proof ha the

reqred vonary deparre bond was posed wh he epamen of omeand Secy an fthe alen does no provde mely proof to the Boar e Board wl no rensae he perod ofvountay epae n s nal order

The recor does no reec tha he respondent sbmted mely proof of havng pa thevolnay depaure bon The Immgraton Jdge propery advsed the responden of the needto nfo he Board whn 30 days of ng an appeal ha he bond has been pad (lJ at 7;

Noce o Responents Graned Volntay epare) Therere he vountary depaure perodgranted by the Immgraon Jdge w not be renstaed and the responden sha be removedom the Uned Staes pursuan to e Immgraon Judges alteate order See 8 CFR§ 24026(c)(3) Matter of Gamero, 25 I&N Dec 64 (BA 200) Accordngy he lowng

orders wll be enered

We have not consere e edence he respondent sbme o e Bo we hs appeah been pendng The Boad s an appellae body whose ncon s o revew nocreate a record See Matter o Fedorenko 9 &N ec 57 74 (BIA 984) To the exent hsevdence s new he responden hs not led a moton o remand and we canno consder new evdence presene r he rs tme on appea 8 CFR § 003(d)(3)(v) Moreoverhe responden has not shown how hs new evdence was no prevosly avaabe and could not

(onned )

2




A089 244 823

ORDER e espodes appeal s dsssed

FURTHER ORER The espode s odeedao udges aleave ode o eoval

eoved o apa pusuan o he

OR THE BOARD C:

have bee peseed a hs heag bee he gao udge 8 CFR § 0032(c) Maerof Coelho 20 N ec 464 47 (A 992) Coseque we adudcaed he appea basedupo he evdece coaed he ecod whe was bee he mmgao udge

3Cite as: Kosei Inoue, A089 244 823 (BIA July 9, 2013)



·"r'I

�I

UNITED TATE DEPARTMENT OF UTICE

EXECUTI OFFICE FOR IMMIGTION REVIEWNITED TATE IMMIGTION COURT onolulu awaii

File No A 08 244 823 October 7 2011

In the Matter of

KOEI INOUE IN REMOVAL PROCEEDING

Respondent

CARGE ection 237(a} (} (C)(i} of the Immigration andNationality Act - nonimmigrant failed to maintainor comply withconditions of status

APPLIATION Termination; voluntary departure

ON BEALF OF REPONDENT

Carmen Dioreiah Esquire

ON BEALF OF

.Sb&t :n

atey Assistant Chief Counsel

OL DECIION OF TE IIGTION UDGE

The respondent is a 45yearold married native and citizen

of apan The Department alleges that he was admitted at

onolulu on May 30 200 as a nonimmigrant E2 with

authorization to remain until May 2 2011 The Department

further alleged that the respondent was terminated by the

petitioner on October 2 200 and that he thereafter remained

in the United tates without authorization Proceedings were

-



commenced with the iing o a Notice to Appear with the

Immigration Court at onouu, on February 24, 2010. ee Exhibit

1

The respondent with the assistance o counse admitted

aegations l 2 and 3, denied aegation 4 and contested

removabiity Respondent designated Japan shoud that become

necessary

The Individua hearing was conducted on October 7, 201Exhibits l through, and incuding were received Exhibit 10

was marked or identiication ony

At the Individua hearing, respondent argued that the case

shoud be terminated and, in the aternative, that the

Immigration Judge shoud restore respondent to his E2 status

In the aternative, the respondent requested vountary departure

Respondent ied numerous documents reated to the business,

which the Court has reviewed These documents appear to revea

the oowing events

On or about December 20 2005, respondent signed a seice

agreement between Wordwide Pet ervices Inc ( "Wordwide), a

awaii corporation, and Baytown, LLC ( Baytown), a awaii

imited iabiity company ee Exhibit 31 operate a pet grooming

service, ee Exhibit Respondent, as president o Wordwide,

Wordwide was incorporated by the respondent apparenty tooperate a pet grooming service ee Exhibit 9 Respondentsartices o incorporation were ied on Deceer 21, 2005 withthe tate o awaii, Department o Commerce and Consumer Aairs,Business Registration Division

A 089 244 823 2 · October , 2011



agreed to manage the pet grooming business owned by Baytown The

service agreement signed on December 20, 2005, was to last ive

years and ran rom March 1, 2006, until February 28, 2011 ee

Exhibit

On or about May 30, 2006, Baytown, through its counsel,

iled an application or Baytown to be qualiied as an E2

company and an application or the respondent to enter under an

E2 visa as manager/executive ee Exhibit 7 On October 2,2006, the U Department o tate issued the E2 nonimmigrant

visa to respondent with an expiration date o eptember 28, 2011

ee Exhibit 2 According to Baytown, respondent was to see as

a managerexecutive or Baytown LLC, to be paid an annual salary

o $48, 000 and to temporarily serve as president or up to three

years in the United tates ee Exhibit 7

On or about May 14, 2007, the respondent was admitted to the

United tates lawully under the E2 noniigrant visa that was

iled on his behal by Baytown

On or about August 31, 2008, respondent allegedly breached

his service agreement to Baytown by advertising their business

and services under the nme awaii Pet Academy, a apanese dog

grooming website " ee Exhibit

On or about October 16, 200, Kaze U A, Incorporated

"Kaze, nc ), entered into an agreement with Worldwide and with

Baytown and agreed to buy and take over Worldwide ee Exhibit

7

A 08 244 823 3 October 7 2011



On or about October 8, 2008 Kae Inc filed a Form I129,

petition for nonimmigrant worker on behalf of the respondent

ee Exhibit 8 Kae, Inc stated on the For I129 that

respondent is requesting a new E2 classification because he had

a "change of emploer " Kae Inc stated that respondents

position at Kae Inc is "general manager" and he would be paid

$60, 000 per ear in wages for a period of two ears ee Exhibit

8 Kae Inc also stated on this Form I129 that respondentscurrent E2 was set to expire Ma 13, 2009

On October 24 2008, Kae Inc s I129 petition was

granted ee Exhibit 8

On May 30 2009, respondent was admitted to the United

tates under the new E2 nonimmigrant visa issued to respondent

on behalf of Kae, Inc and the visa was valid until Ma 29,

2011 This is consistent with the date alleged in the Notice to

Appear

On October 29, 2009 Kae, Inc terminated the respondent

from employment ee Exhibit 2 Page 1

On November 13 2009, respondent filed a Form I-538

application to extend/change nonimmigrant status, requesting tha

his status be changed from E2 to B1 ee Exhibit 3

On or about anuar 4 2010 users denied respondents

appication tochange status because he did not provide a

detailed explanation of why he should be granted an extension of

sta he did not demonstrate an intent to remain temporarily and

A 089 244 823 4 October 7, 2011



he failed to demonstrate that he had the fiacial resources to

invest and not become a public charge See Exhibit 3, Page 4

USCIS stated that respodent may remain in the United States

util the expiration on the I-94.

As state above, respondent was served with the Notice to

Appear on February 22, 2010.

In this case, the Court inds that the Departmet has

establised removability on the initial charge by clear ancovicig evidece sice the respodent was clearly temiate

by the petitioig employer. Moreover, although there was no

log�charge, responent has remaied i the ite States beyod

May 29, 20 with no status at all it could be argued

Respoet through counsel, id make a oral argument that

the Court had authority to reistate the E2 ivestor status

The Court fins that it does ot have jurisdictio to do so

nder Section 237(a} (1) {C (i of the Act ay alien who was

admitted as a noimmigrant and who has faile to maintai a

noimmigrant status in which the alie was admitted or to which

it was changed uer Section 248 or to comply with the coitions

of ay such stats is eportable.

Responent's ailure to maitai or comply with the

coditios of the E-2 noimmigrant status as a employee o Kaze,

Ic. is emonstrate by the terminatio o emploment as a

maager, proo of which the DHS file at Exhibit 2 der 8

CF. R. Section 214 2(e)(8) VII), a authorized chage o

A 089 244 823 5 October 7, 20



emloent to a new emploer wll conttute a alure to

mantan tatu wth the meang o Secton 237a (1)(C ) o

the Act Snce the reonent ha not receve ermon rom

the DHS to change h emloer an he no longer an emloee

o the treat nvetr coma, the Department ha etablhe

that reponet ale to mantan hs tatu

Regarng the other argument that reoent a treat

nvetor hmel, th not uporte b the recor Thereonent argue that he an nvetor n Bato wth reect

to h rt E-2 nongrant va See Exhbt 9 Even

aumng reponent wa an nvetor, he was amtte nto the

Unte State ucceull a an E2 onmmgrant when he worke

or Kaze Inc , an, thereore h removablt can onl be

evaluated rom h ucceul "change o emloer, I-129

etton A tate above the etto wa ene b users an

the Court oe not have jucton to rentate that Mot o

reonent roblem aear to be cvl matter that nee to be

ltgate a State Court

A tate above even reponent' argumet that he

not loe tatu when he wa termnate b the ettonng

emloer wa crrect, a o the ate o the Invual hearng

that E2 vsa ha expre nce t was onl val untl M 29

2011

The onl rele avalable to the reonent voluntar

earture The reent tete that he ha a ver tght

A 09 244 23 6 October 7 201



I�

fiaial situatio, but e ould borrow moey for a bod ad a

tiet or obtai moey from Japa Tere are o adverse fators

i te ase wi woul prompt te ourt to dey volutary

departure

Aordigly, te followig orders sall be etered:

RDER

T IS HEREY RDERED tat te motio fr termiatio of

proeedigs is deiedIT IS FTHER RDERED tat te appliatio for volutary

departure is grated ad tat te respodet must leave te

·ited States o or befoe Deember 6 011, ad must post a bod

i te amout of $00, witi five busiess days, ad wit a

alteate order of removal to Japa

�Immigratio Judge

A 089 44 83 7 tober , 0



CERTIFICATE PAGE

hereby certify that the attached proceedng before

JUDGE DAYNA BEAMER, in the matter of:

KOSE NOUE

A 089 244 823

Honolulu, Hawa

s an accurate, verbatim transcrpt of the recordng as provded by

the Executve Offce for Iigration Revew and that ths s the

orgnal transcrpt thereof for the file of the Executve Office

for graton Revew.

�<6� 7� B. Whtlock, Transcriber 7ree State Reportng, Inc

. •

December 7, 2011(completon date)

submsson of this CERTIFICATE PAGE, the Contractor certifesthat a Sony EC/T-147, 4channel transcrber or equvalent, and/orC, as descrbed n Section C, paragraph C3..2 of the contract,was used to transcrbe the Record of roceeding shown in the above

paragraph.

Documents

Kosei Inoue, A089 244 823 (BIA July 9, 2013)