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from labor certification as an investor within 8 CFR 212.8(b) (4). This regulation defines an investor as: an alien who will engage in a commercial or agricultural enterprise in which he had invested or is actively in the process of investing a substantial amount of capital.
Webster's New World Dictionary, College Edition, defines capital in the pertinent parts as: -wealth (money or property) owned or used in business by a person, corporation etc., an accumulated stock of such wealth; wealth, in whatever form, used or capable of being used to produce more wealth; hence, any source of profit or benefit; assets; resources, as energy and education are his only capital.
The same authority defines property when considered in connection with capital as: the right to possess, use and dispose of something; ownership; as property in land. a thing or things owned; holdings or possessions collectively; especially, a land or real estate owned.—any trait or attribute proper to a thing, or, formerly, to a person.—something regarded as being possessed by, or at the disposal, of a person or group of persons:
Applying these definitions to the instant case, it may be considered that the beneficiary has invested and is actively investing capital, both in the form of cash and property, in a commercial enterprise in which he is presently engaged and in which he intends to continue. Although the beneficiary has only invested $13,992.60 on the basis of the firm's most recent financial statement, the nature of the construction industry is such that the fixed assets of a particular company is not a true reflection of its worth. No large inventory of equipment and goods is required; the physical plant need be neither complex nor extensive and with the exception of heavy equipment, which can be leased or subcontracted, most of the employees will possess their own tools and light equipment; therefore, though a small investment in the light of heavy industry and the world of high finance, by small business standards this investment is considered to be substantial.
In considering whether a petition in behalf of the equal partner of the petitioning firm is proper, we find that the Matter of M-, 8 I. & N. Dec. 24, holds the sole owner of the petitioning corporation to be properly considered the beneficiary of a preference immigrant visa petition. The language of 8 CFR 204.1 (d) appears consistent with this finding and provides for the filing of a visa petition by a person, firm, or organization desiring and intending to employ within the United States an alien entitled to classification as a preference immigrant under section 203 (a) (6) of the Act, as amended. There is no question that the petitioner when considered as a firm or organization does desire and intend to employ the beneficiary in the stated capacity.
The beneficiary may be considered qualified as an investor within the meaning of 8 CFR 212.8(b) (4) and, as such, exempt from the need for a labor certification if he were seeking admission as a nonpreference or special immigrant as defined in section 101 (a) (27) (A) of the Act or seeking adjustment of status to that of a permanent resident as a nonpreference immigrant. However, an alien investor who desires a sixth preference classification is not seeking that classification in the capacity of an investor. Instead, he is seeking it in the capacity of an employee and, as previously stated, such classification may only be accorded, as a matter of law, if the petition is supported by a labor certification. The Department of Labor has declined to issue the required certification on the basis that the alien will be self-employed and not eligible for consideration of alien employment certification. That Department's decision is not, of course, subject to review by this Service.
When this case was first considered, nonpreference visa numbers were unavailable and the alien beneficiary did not qualify as a special immigrant. Since nonpreference visa numbers are presently available and the beneficiary may qualify as an investor, consideration under this classification will be accorded to the beneficiary in the event that an appropriate application is filed.
In view of the requirement that a petition to classify a beneficiary as a preference immigrant under section 203 (a) (6) of the Act must be supported by a certification by the Secretary of Labor, notwithstanding the fact that the beneficiary might be exempt from the need for such certification if applying for immigrant status as a nonpreference or special immigrant, and the petitioner has not presented such a certification, the petition must be denied for lack of a valid unexpired labor certification. Pursuant to 8 CFR 204.1(d) (4), no appeal shall lie from this decision.
It is ordered that the petition be denied for lack of a certification issued pursuant to section 212 (a) (14) of the Act by the Secretary of Labor.
MATTER OF AU, YIM AND LAM
In Deportation Proceedings
Decided by Board June 20, 1969
Where Service investigators, having reason to believe aliens illegally in the
United States were employed in a restaurant, entered the restaurant to question the employees; they limited their questioning to whether the person was an alien and, if so, whether he was legally in the United States; no force was used to enter or to interrogate and there was no harassment of employee or management, the investigators, upon seeing persons obviously of foreign descent attempting to flee, acted reasonably in taking steps to detain them for questioning as to their immigration status. Having determined they were aliens illegally in this country, it was reasonable to arrest them without a warrant, as clearly they were aliens likely to escape before a warrant could be obtained, and evidence obtained as the result thereof was incident to a lawful arrest and admissible in evidence in de
portation proceedings.* CHARGES :
Order: Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-In United
States in violation of law, entered after being re
fused permission to land as crewman. (AU) Act of 1952—Section 241 (a) (2) [8 U.S.C. 1251 (a) (2)]-Crewman,
remained longer. (YIM and LAM)
ON BEHALF OF RESPONDENTS:
David Carliner, Esquire 902 Warner Building Washington, D.C. 20004
ON BEHALF OF SERVICE:
Irving A. Appleman
The special inquiry officer ordered the respondents deported on the charge which relates to each. They appeal on the ground that the evidence to establish deportability was obtained after an illegal arrest and search. The appeals will be dismissed.
* Affirmed, see 445 F.2d 217 (C.A. D.C., 1971).
The claim that there was an illegal arrest and search requires a presentation of the facts in detail. Except for one matter there is little conflict as to the facts.
Service investigators, believing that one or more Chinese aliens illegally in the United States were employed in a restaurant located in a hotel building, decided to enter the restaurant to question the employees as to whether they were aliens illegally in the United States. They had gone to the same restaurant for the same purpose on two or three occasions in the past year. They did not have a warrant of arrest.1
About 5:30 p.m. on October 31, 1967, eight or nine Service investigators went to the hotel building. They were Burns, Podrasky, Taylor, Lamoreaux, Kelley, Stephanadis, Smith and one or two more (p. R-18). With the permission of the hotel employee stationed there, Kelley and Lamoreaux entered the hotel by a side or rear door. Kelley remained near the door. He had a view of some hallways. He would have stopped anyone who tried to leave hurriedly. Lamoreaux, traveling through the hallways of the hotel, made his way to a restaurant room which had a door on a hallway. The door was open, Lamoreaux stationed himself in the hallway so that he could see into the room (pp. R-19, R-21, R-60, R-62). Burns, Podrasky and Taylor entered the restaurant by the front door. The disposition of the other investigators is not shown. The three who entered by the front door approached Park, the assistant manager, who was in charge. Burns and Podrasky identified themselves and carried on the conversation. Taylor took no part of the conversation (pp. 20–21, R-4). They were interrupted briefly when Park received a phone call. There is a conflict in the evidence as to what happened next. Park testified that Podrasky identified himself but did not ask for permission to go to the kitchen; that while he was on the phone, Podrasky said that he was from the Immigration Service and he has to go into the restaurant and question the employees; that Podrasky went on without waiting for permission; that as soon as he had hung up the phone, he dashed after Podrasky and offered to set up a small table in the dining room, to which he would send the employees whom Podrasky wanted to see; that Podrasky did not answer, but asked for the direction of the kitchen; that he pointed
1 The District Director has discretionary authority to issue an administrative warrant for the arrest of an alien, if he determines that the arrest is necessary or desirable. 8 CFR 242.2(a). Ordinarily, the District Director does not issue a warrant of arrest until after the alien has been questioned and it is determined that a prima facie case of deportability exists.
out the direction; and that he did not tell Podrasky he could not go into the kitchen (pp. 39–43; 47-49). The investigators, on the other hand, testified that after Park hung up, they told him that they wished to talk to the employees, and that Park gave permission to go to the kitchen to talk to the employees (pp. 20–21, 31, R-2-R-4, R-47, R-70, R-72-R-73, R-75). Podrasky testified he could not recall Park offering to bring the kitchen employees to the dining room so that he could talk to them.
In any event, on the way to the kitchen, Burns stopped to talk to an employee. He saw a Chinese person, garbed in a kitchen worker outfit, running toward the front door. He ran after, stopped him at the door, identified himself, and invited him to come to the kitchen to talk. This person is respondent, Yim Tsz Ki (pp. 21-23, R-4-R-5). As Burns and Yim were going to the kitchen, a second Chinese person, dressed like the first, headed for the front door. Burns stopped him and also invited him to come to the kitchen. This person is respondent, Lam Sai Ting (pp. R-5, R-8). On the way to the kitchen, Burns and the two employees passed a room being remodeled to provide additional dining space. A door of this room led to the hallway of the hotel. Lamoreaux was standing in the hallway at the door. Lam ran for the door. Burns followed. Lamoreaux intercepted Lam. He found Lam could speak no English, but did learn that he was off a ship. He apparently determined at this time to take Lam into custody. All went to the locker room. There, Lam again admitted to Lamoreaux that he had jumped ship. Yim admitted to Burns that he had jumped ship. Burns considered the admission, a sufficient basis for detaining Yim (pp. 22–24, 28, R-7-R-9, R-14-R-16, R-26-R-27).
Taylor and Podrasky had gone on to the kitchen. They questioned employees there. Taylor noticed that an employee walked to the rear of the kitchen, where a door led to the hallway of the hotel. The employee spoke to two Chinese employees who were preparing food for their own consumption. They dropped their food and ran out through the rear exit. No inspector was stationed there. Taylor ran after them. They went in different directions. One was out of sight; he was not apprehended. Taylor caught up with the other, stopped him by taking his arm, and asked him to return to the kitchen. He did not hold him as they walked back. The chase took him past Kelley, standing off the hallway in which the chase took place. Kelley took no part in the chase. The third person is respondent, Au Yi Lau. In the kitchen, with the help of an employee, Taylor learned that Au had come