Kee Yiu Leong, Appellant, v. John F. O'shea, District Director of the United States Immigration and Naturalization Service, Appellee, 363 F.2d 426 (9th Cir. 1966)

Appellant, a citizen of the United States and a resident of the State of Hawaii, on February 5, 1964, filed a petition seeking approval to bring into the United States, as his wife, one Inn Kwai Lui Leong, a citizen of China, residing in Hong Kong, on a nonquota basis, as authorized by Section 205 of the United States Immigration and Nationality Act of 1952, [8 U.S.C.A. § 1155]. This section, in substance, insofar as it pertains to the instant case, provides that any citizen of the United States claiming that any immigrant is his spouse, and that such immigrant is entitled to a nonquota immigrant status, may file a petition with the Attorney General for such classification. The section further provides that after an investigation of the facts in each case, the Attorney General shall, if he determines the facts stated in the petition are true and that the alien in respect of whom the petition is made is eligible for a nonquota immigrant status, approve the petition.

Subsequent to the filing of the petition an investigation, as required, was conducted.

The District Director denied the petition for the following reasons:

"You have failed to establish that the said beneficiary is entitled to nonquota status under Section 205 of the Immigration and Nationality Act. She is not your spouse as required by Section 101(a) (27) (A) of the Act because your alleged marriage to her was contracted at a time when your first marriage was still in effect."

An appeal was taken by appellant to the Board of Immigration Appeals. The appeal was dismissed and the order denying the petition was affirmed. Thereupon appellant commenced this action under § 1009 of the Administrative Procedure Act [5 U.S.C.A. § 1009] in the District Court, naming the District Director as the defendant. Each party to the action moved the District Court for summary judgment in his favor. Prior to hearing, a certified copy of the Administrative Record of the case was filed as an exhibit.

Following hearing the District Court granted the appellee's motion for summary judgment and denied the motion of appellant for summary judgment.

Appellant filed a timely motion for a new trial and an untimely motion to amend the motion for new trial. Both motions were denied by the District Court.

On this appeal, appellant contends the decision of the District Director is arbitrary, capricious, contrary to the substantial weight of the evidence, and that the District Court erred, as a matter of law, in several respects in granting summary judgment in favor of the appellee.

We have carefully reviewed the entire record which was before the District Court, including the Administrative Record of this case, and we are satisfied, as was the District Court, that the determination made by appellee in denying appellant's petition is supported by substantial evidence.

We find no error by the District Court in granting appellee's motion for summary judgment and in denying appellant's motion for a new trial and his motion to amend such motion.

Affirmed.