Shin v. Eric H. Holder Jr, 06-73782

• Decision Date: 11 June 2010
• Docket Number: No. 06-73782,06-73785.,06-73782
• Citation: 607 F.3d 1213
• Parties: KYONG HO SHIN; Jin Hee Shin, Petitioners,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

607 F.3d 1213

KYONG HO SHIN; Jin Hee Shin, Petitioners,v.Eric H. HOLDER Jr., Attorney General, Respondent.

Nos. 06-73782, 06-73785.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 12, 2010.

Filed June 11, 2010.

John J. Marandas, Lake Oswego, OR, for the petitioners.

Alison Marie Igoe and Lindsay Williams, United States Department of Justice, Civil Division/Office of Immigration Litigation, for the respondent.

On Petitions for Review of Orders of the Board of Immigration Appeals. Agency Nos. A047-055-519, A047-415-708.

Before J. CLIFFORD WALLACE, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

We consider a non-citizen's eligibility for a waiver of inadmissibility under § 212(k) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(k) (“ § 212(k) waiver” or “ § 212(k) relief”). Section 212(k) applies to “immigrants who were unaware of their ineligibility for admission and who could not have discovered the ineligibility by exercise of reasonable diligence.” Senica v. INS, 16 F.3d 1013, 1014 (9th Cir.1994).

Kyong Ho Shin and Jin Hee Shin (“the Shins”), both citizens and nationals of South Korea, are siblings who unknowingly obtained lawful permanent residence through the criminal conspiracy of a former officer of the Immigration and Naturalization Service (“INS”), Leland Sustaire.

In removal proceedings, the Shins sought a § 212(k) waiver of inadmissibility due to the invalid immigrant visas that were procured for them by their mother through the Sustaire scheme. The Board of Immigration Appeals (“BIA”) found the Shins ineligible for § 212(k) relief because they never possessed valid immigrant visas and were not “otherwise admissible” within the meaning of the statute.

We grant the petitions for review. Section 212(k) expressly makes relief available to non-citizens, like the Shins, who are deemed inadmissible for lacking a valid immigrant visa at the time of entry and are not inadmissible for any other reason. Because the Shins are eligible to seek such relief, we remand the case to the BIA for a ruling on the merits of their petitions.

Background

Between 1986 and 1994, Sustaire conspired with several middlemen in the Korean-American and overseas Korean community to produce fraudulent Form I-551 Alien Registration Cards, or “green cards,” for their clients. Essentially this was a bribes for green cards scheme. Sustaire and his collaborators were ultimately convicted for conspiracy to bribe a public official, in violation of 18 U.S.C. § 371, after Sustaire turned himself in to law enforcement authorities. See Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1032-33 (9th Cir.2008) (detailing the background of the Sustaire scheme).

The Shins obtained their lawful permanent resident (“LPR”) status derivatively through their mother, Ok Nyo Lee, who was admitted to the United States as an LPR in December 1991. Although Lee told her son, Kyong Ho, that she obtained her green card through her longtime employment as a hairdresser on a U.S. military base in Korea, in truth she obtained her green card through an immigration broker affiliated with Sustaire. Lee's Form I-130 Alien Relative Petitions for her children were approved in 1992. Visas were made available to the Shins approximately seven years later,¹ and the Shins submitted the requisite fees, police clearances, and supporting documentation to the U.S. Embassy in Seoul for processing. The consulate interviewed the Shins and issued immigrant visas. They were admitted to the United States as LPRs in 1999 and 2000, respectively.² The government initiated removal proceedings against Lee and the Shins in April 2003 upon linking them to the Sustaire scheme. The government alleged that Sustaire had caused a false immigration record to be created showing that Lee had adjusted to permanent residence as the spouse of a Skilled Worker or Professional holding a Baccalaureate Degree (Immigrant Visa Classification E39), and that this record formed the basis of the Shins' admission to the United States. The government charged the Shins with removability for lacking valid immigrant visas at the time of their entries into the United States under 8 U.S.C. §§ 1227(a)(1)(A), 1182(a)(7)(A)(i)(I).³ The government also charged the Shins with seeking to procure an immigration benefit through fraud or misrepresentation, but ultimately withdrew that charge in immigration court. By all account in the present record, the Shins were innocent bystanders to Sustaire's fraudulent arrangement.

The immigration judge (“IJ”) ordered removal of the Shins on August 11, 2005. The IJ ordered Lee's removal earlier that year. The IJ held that, although Lee “had not knowingly and wil[l]fully engaged in fraud,” and the Shins had relied in good faith on their mother's representations that they were eligible to immigrate, Lee nevertheless obtained an invalid green card through the Sustaire connection, and the children's green cards were invalid by extension. The IJ also denied the request for a § 212(k) waiver and granted the Shins voluntary departure. The BIA affirmed in an unpublished, singlemember decision.

Analysis

We address two issues here: whether the BIA erred in finding that the Shins were removable and whether the BIA erred in holding them ineligible for § 212(k) relief.⁴ We review the BIA's legal determinations de novo and its factual findings for substantial evidence. Aguilar Gonzalez v. Mukasey, 534 F.3d 1204, 1208 (9th Cir.2008).

I. Removability

The BIA found that although the Shins may have been “ ‘two or three degrees removed’ from the [Sustaire] scheme,” their immigrant visas were tainted by the initial unlawful grant of LPR status to their mother. The Shins qualified for their immigrant visas as the “unmarried son[ ] or unmarried daughter[ ] ... of an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1153(a)(2)(B). Thus, the validity of their visas turns on whether Lee's admission for permanent residence was “lawful” in nature.

The Board cited two cases in support of its holding Monet v. INS, 791 F.2d 752 (9th Cir.1986), and In re Koloamatangi, 23 I & N Dec. 548 (BIA 2003). Monet and Koloamatangi construed the meaning of the phrase “lawfully admitted for permanent residence,” which is found in the definitional provisions of the INA, 8 U.S.C. § 1101(a)(20) and its identical predecessor statute. Section 1101(a)(20) defines the phrase as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” 8 U.S.C. § 1101(a)(20) (2006); id. § 1101(a)(20) (1976 & 1982).

Both Monet and Koloamatangi sought forms of relief from deportation for which lawful admission for permanent residence was a condition precedent to eligibility-in the case of Monet, former INA § 212(c) relief; in the case of Koloamatangi, cancellation of removal under 8 U.S.C. § 1229b(a). However, both Monet and Koloamatangi concealed their inadmissibility at the time of their admission or adjustment to permanent residence.⁵ We held that Monet had never been “lawfully admitted” for permanent residence and was ineligible to seek relief. As we explained, “ ‘[a]dmission is not lawful if it is regular only in form. The term “lawfully” denotes compliance with substantive legal requirements, not mere procedural regularity.’ ” Monet, 791 F.2d at 753 (quoting In re Longstaff, 716 F.2d 1439, 1441 (5th Cir.1983)). Similarly, the BIA in Koloamatangi held that “the correct interpretation of the term ‘lawfully admitted for permanent residence’ is that an alien is deemed, ab initio, never to have obtained lawful permanent resident status once his original ineligibility therefor is determined in proceedings.” 23 I & N Dec. at 551; accord Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir.1973) (holding that a “mistaken admission conferred no status, permanent resident or otherwise”).⁶ Under Monet and Koloamatangi, Lee was never “lawfully admitted” for permanent residence and thus the Shins' derivative visas were improperly granted.

The Shins' arguments that they were lawfully admitted for permanent residence despite their mother's status do not persuade us. Although the facts of both Monet and Koloamatangi involve acts of personal fraud or misrepresentation, their holdings broadly deem all grants of LPR status that were not in substantive compliance with the immigration laws to be void ab initio. See Monet, 791 F.2d at 753; Koloamatangi, 23 I & N Dec. at 550 (referring to “individuals who had” obtained their permanent resident status by fraud or had otherwise not been entitled to it (emphasis added)); id. at 551 (affirming “long-standing decisions holding that an alien[is] not ‘lawfully’ admitted for permanent resident status if, at the time such status was accorded, he or she was not entitled to it”). Other circuits are in accord. See Walker, 589 F.3d at 19-20; Savoury, 449 F.3d at 1310, 1315-17; Arellano-Garcia, 429 F.3d at 1185, 1186-87; In re Longstaff, 716 F.2d at 1440-41.

Significantly, the Shins were not substantively qualified for admission as LPRs at the time they entered the United States. They argue that a timing loophole saves their case. Although the IJ ultimately found Lee's admission for permanent residence to be void ab initio, the Shins posit that Lee retained her LPR status until the removal order of June 29, 2005. Accordingly, they argue, the Form I-130 relative petitions that Lee filed on the Shins' behalf and their resulting visas were valid at the time of the Shins' admission to the United States.

The Shins are correct that “[e]ven where there are grounds to seek deportation or removal, a lawful permanent resident is lawfully present in the United States until a final deportation or removal order is entered.” Hernandez de Anderson v. Gonzales, 497 F.3d 927, 943 (9th Cir.2007); see also 8 C.F.R. § 1001.1(p) (providing that...