Somnuck Hirunpidok, Somchua Hirunpidok v. Immigration and Naturalization Service

Petitioners Somnuck and Somchua Hirunpidok, natives and citizens of Thailand, appeal from a decision of the Board of Immigration Appeals (BIA) affirming the Immi gration Judge’s (IJ) denial of their Application for Status as Permanent Aliens. Petitioners contend that they are entitled to exemption from the labor certification requirement of Section 212(a)(14) of the Immigration and Nationality Act as amended, 8 U.S.C. § 1182 (a)(14) (1976), by reason of their investment of more than $10,000 in a market.

The IJ and BIA first found that petitioners’ investment was less than the $10,000 minimum required by the regulation in effect at the time petitioners filed their application. See 8 C.F.R. 212.8(b)(4). This court must accept this determination if it is supported by substantial evidence in the record. See Lee v. INS, 541 F.2d 1383, 1384-85 (9th Cir. 1976).

In making its determination, the BIA did not take into account expenditures made by petitioners after May 26,1975, the date petitioners filed their application. The regulation in effect at the time petitioners made their application, however, provides that to be eligible for investor status, the alien must have “invested or [be]…