Kun Young Kim v. District Director of the U. S. Immigration & Naturalization Service

Kun Young Kim has appealed from a summary judgment dismissing his petition for review of a decision of the United States Immigration and Naturalization Service (INS) denying Kim’s application for nonimmigrant status as a “treaty investor” under 8 U.S.C. § 1101 (a)(15)(E)(ii) on the ground that Kim’s investment was not substantial, but was “in a marginal enterprise solely for the purpose of earning a living”. We affirm.

Factual Background

Kim, a citizen of the Republic of Korea, came to the United States in 1970 as a visitor. He later received student nonimmigrant status. In 1974 Kim applied for “treaty investor” nonimmigrant status. In 1975 his petition was denied by the District Director of the INS in Seattle. The District Director’s decision was appealed to the Regional Commissioner of the INS for the Northwest Region. The appeal was dismissed and reconsideration denied. Kim was notified by the Director that he was to leave the United States by October 15,1976.

Kim owns Stan’s Drive-In, a fast food restaurant in Seattle. He purchased the restaurant for $29,500, making a down payment of $9,200 and giving a mortgage for the balance, payable at the rate of $450 per month. He…