Choe v. I.N.S.

Decision Date14 December 1993
Docket NumberNo. 91-70443,91-70443
Citation11 F.3d 925
CourtU.S. Court of Appeals — Ninth Circuit
PartiesIn Gun CHOE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Stephen A. Johnston, and Daniel H. Smith, MacDonald, Hoague & Bayless, Seattle, WA, for petitioner.

Francesco Isgro, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Board of Immigration Appeals.

Before: WRIGHT, ALARCON, and BEEZER, Circuit Judges.

BEEZER, Circuit Judge:

Reverend In Gun Choe has lived in the United States as a legal permanent resident since 1982. In 1988, however, the Immigration and Naturalization Service ("INS") began deportation proceedings against Choe. The Immigration Judge terminated the proceedings; the Board of Immigration Appeals ("BIA") reversed the decision of the Immigration Judge and ordered Choe deported.

The INS claimed that when Choe entered the United States as a nonimmigrant he had a preconceived intent to remain in the country permanently. The BIA found that this preconceived intent rendered Choe excludable at his time of entry; the BIA also held that Choe's adjustment of status did not affect this improper entry.

Choe petitioned us for review of the BIA decision. Because we find that adjustment of status bars later deportation for initial entry with preconceived intent to remain, we grant the petition for review and remand the action to the BIA for termination of deportation proceedings.

A. Choe's Immigration History

Reverend In Gun Choe is the Pastor of Philippi Presbyterian Church in Seattle, Washington. Choe is a native of Korea and attended theological seminary in Korea. In December 1981, the Consular Section of the American Embassy in Seoul, Korea issued a B-2 visitor's visa to Choe. The nonimmigrant visa stated that the purpose of the trip was to attend a church seminar in New York and visit Korean churches in Los Angeles. Choe was granted a visa that allowed him to remain in the United States for three months. There were no limitations or travel restrictions on Choe's visit. Choe arrived in the United States in January 1982.

During his visit, a church in the Los Angeles area offered Choe a position as an assistant pastor. He accepted. The church filed a third preference immigrant visa petition on Choe's behalf. 1 At the same time, Choe filed an application to adjust his status. After an interview with the INS, Choe was granted Choe then filed a second preference immigrant visa petition for his wife and child. The INS approved the petition in December 1982 and forwarded it to the United States Consul in Seoul. Mrs. Choe also applied for an immigrant visa for herself and her child at the United States Embassy in Seoul. A State Department official saw that a Reverend Bhang had signed some of the documents in Choe's file. Bhang was considered a questionable figure, one who signed documents manufactured solely for immigration purposes. In December 1983, the State Department suspended action on Choe's wife's visa application and sent a memorandum to the INS in Los Angeles requesting an investigation regarding Choe. In February 1984, an INS investigator interviewed Choe.

lawful permanent resident status on September 17, 1982. 2 Choe never attended the church seminar in New York.

Time passed. The INS took no action against Choe, and his wife's visa application remained in abeyance. On December 30, 1987, Choe filed a mandamus action in U.S. District Court seeking action on the visa petitions for the Choe family.

In February 1988, the INS initiated deportation proceedings against Choe.

B. Procedural Background

On February 4, 1988, the INS issued an Order to Show Cause alleging that Choe was deportable pursuant to 8 U.S.C. Sec. 1251(a)(1) for having been excludable at time of entry under 8 U.S.C. Sec. 1182(a)(19) [presently codified at 8 U.S.C. Sec. 1182(a)(6)(C)(i) ]. 3 Specifically, the INS charged that Choe obtained adjustment of status as a special immigrant minister through fraud. On April 26, 1988, the INS amended the Order to Show Cause to specify that Choe lacked two years ministerial experience required for special immigrant minister status and to add the allegation that Choe was deportable pursuant to 8 U.S.C. Sec. 1251(a)(1) for having been excludable at time of entry under 8 U.S.C. Sec. 1182(a)(20). Section 1182(a)(20) states that an alien is excludable at time of entry if the applicant is not in possession of a valid unexpired immigrant visa, except as otherwise provided by the Act.

A two day deportation hearing was held. On June 28, 1988, the Immigration Judge ("IJ") ordered the deportation proceeding terminated. The INS appealed. On June 27, 1991, the BIA reversed the decision of the IJ and ordered Choe deported from the United States. Choe petitions for review of that order.

C. Decision of the Immigration Judge

The IJ issued an oral decision on June 16, 1988. On the issue of preconceived intent to remain, the charge under 8 U.S.C. Sec. 1182(a)(20), the IJ found the testimony of the INS agent credible. However, the IJ further found that the INS had the opportunity to determine whether Choe had such a preconceived intent when he applied for adjustment of status. The IJ did "not feel a compelling need to look over the [INS] District Director's shoulder and second guess him at this date as the trail of evidence was much warmer in 1982 than it is today in 1988."

The IJ also found that the INS had not met its burden in establishing that Choe committed fraud at the time he applied for adjustment of status. 8 U.S.C. Sec. 1182(a)(19). The IJ found the INS case "somewhat circumstantial." The case relied heavily on the findings of the American Consul concerning Rev. Bhang; the IJ found the opinion of the American Consul "not a substitute for actual evidence." In light of these findings, the IJ terminated the deportation proceedings against Choe.

D. BIA Decision

The BIA made two principal determinations. First, it held that Choe could not be Second, the BIA held that Choe was deportable under Sec. 1182(a)(20) as an immigrant without a valid visa, based on Choe's preconceived intent to remain in the United States permanently at the time of his initial entry as a nonimmigrant. The BIA relied on evidence of Choe's preconceived intent as follows: (1) Choe adjusted his status within eight months of entry; (2) the "fraudulent" nature of his adjustment documents; (3) inconsistency of dates in the documents; and (4) Choe's decision not to travel to New York and his quick visa application for his family. Consequently, the BIA reversed the decision of the IJ and ordered Choe deported.

charged with deportability as an alien excludable "at the time of entry" based on acts committed in conjunction with the application for adjustment of status. The BIA reasoned that Choe was not making an "entry" at the time he adjusted his status. The BIA therefore dismissed the INS appeal relating to deportability for fraud under 8 U.S.C. Sec. 1182(a)(19).


The issue of whether an alien who entered the United States as a visitor and later adjusted his status to permanent resident is deportable on the basis that he entered with a preconceived intent to remain indefinitely is a question of law. Questions of law are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc ), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

A. Adjustment of Status

For many years, the only avenue for gaining immigrant status required the issuance of an immigrant visa. Visas are not issued in the United States; they must be obtained from United States consular officers posted abroad. The INS found itself faced with aliens in this country in nonimmigrant status who could show they qualified for immigrant status and who wished to avoid a costly trip out of the country merely to obtain a visa.

In the 1952 Immigration and Nationality Act ("INA"), Congress enacted Sec. 245, 8 U.S.C. Sec. 1255, which authorizes "adjustment of status" from nonimmigrant to immigrant for aliens who meet certain requirements. The whole process can be carried out by the INS, and the alien need not leave the United States. For the purposes of this process, the applicant for adjustment, although physically within the United States, is considered exactly as though he were at the border applying for initial entry. Yui Sing Tse v. INS, 596 F.2d 831, 834 (9th Cir.1979); Hamid v. INS, 538 F.2d 1389 (9th Cir.1976).

There are three basic requirements for adjustment of status.

The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. Sec. 1255(a). Critics claim the availability of adjustment of status encourages fraud by nonimmigrant visa applicants. See Thomas Alexander Aleinikoff & David A. Martin, Immigration: Process and Policy 419 (Interim Second Edition 1991). 4 The BIA relied on 8 U.S.C. Sec. 1251 to order the deportation of Choe. In pertinent part, that provision provides:

Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who--

(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry;

8 U.S.C. Sec. 1251(a)(1). The grounds for exclusion are set forth at 8 U.S.C. Sec. 1182. The BIA found Choe excludable under Sec. 1182(a)(20), which provides that:

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