U.S.

Department of Justice Executive Office for Immigration Review

Board oflmmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Kim, Sungmin 515 E. Golf Road, Ste. 202 Arlington Heights, IL 60005

OHS/ICE Office of Chief Counsel - SFR P.O. Box 26449 San Francisco, CA 94126-6449

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Name: SHIN, JIN HEE

A 047-415-708

Date of this notice: 2/4/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

bcnrtL cWVt.J
Donna Carr Chief Clerk

Enclosure Panel Members: Greer, Anne J. Pauley, Roger Wendtland, Linda S.

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jin Hee Shin, A047 415 708 (BIA Feb. 4, 2014)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Boarj of Immigration Appeals

File: A047 415 708 - San Francisco, CA In re:

JIN

Date:
FEB
-

4 2014

HEE SHIN

IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: Sungmin Kim, Esquire

APPLICATION: Section 2 l 2(k) waiver

The respondent appeals from an Immigration Judge's May 18, 2012, decision denying her application for a waiver of inadmissibility under section 2 l 2(k) of the Immigration and Nationality Act, 8 U.S.C. 1182(k), and ordering her removed from the United States. The appeal will be sustained. 1 The respondent is a native and citizen of South Korea. In 1991, the respondent's mother obtained a United States permanent resident card (i.e., "green card," Form 1-551) for herself by paying a bribe to a corrupt officer of the former Immigration and Naturalization Service. Sh ortly after receiving her bogus green card, the respondent's mother filed an immigrant visa petition on the respondent's behalf, classifying her as a second-preference family-sponsored immigrant (i.e., the unmarried daughter of a lawful permanent resident ("LPR")). That visa petition was approved in 1992, and in 1999 an immigrant visa was issued to the respondent by a consular officer in South Korea. In 2000, the respondent used that immigrant visa to obtain admission to the United States as an immigrant, and she has been an LPR of the United States ever since. In early 2003, the respondent made a trip to South Korea, and while there she received a telephone call from her LPR brother in the United States informing her that there might be a problem with their mother's "green card" and that she should return to the United States immediately (Tr. at 41 (Oct. 14, 2011)). Within 2 weeks after speaking to her brother, the respondent reentered the United States as a returning LPR, using her "green card" (Tr. at 43 (Oct. 14, 2011)). In April 2003, upon discovering that the respondent's LPR status was the fruit of her mother's bribery, the Department of Homeland Security ("DHS") commenced the present removal proceedings by filing a notice to appear in Immigration Court char ging the respondent with deportability under section 237(a)(l )(A) of the Act, 8 U .S.C. 1227(a)(l )(A), as an alien who was inadmissible at entry due to the lack of a valid immigrant visa, section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C. 1182(a)(7)(A)(i)(I). That charge is presently undisputed,2 and thus the
1 2

The respondent's request for oral argument is denied.

The respondent challenged the validity of the removal charge in a petition for review before the United States Court of Appeals for the Ninth Circuit, but the Ninth Circuit upheld the charge. See Shin v. Holder, 607 F.3d 1213, 1216-18 (9th Cir. 20 1 0 )
.

Cite as: Jin Hee Shin, A047 415 708 (BIA Feb. 4, 2014)

A047 415 708

only issue on appeal pertains to the respondent's request for a waiver under section 212(k) of the Act, which provides that an alien who is inadmissible under section 212(a)(7)(A)(i) of the Act and who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant's application for admission.3 The Immigration Judge found the respondent ineligible for a section 2l 2(k) waiver on the ground that her inadmissibility under section 212(a)(7)(A)(i) "could .. . have been ascertained by the exercise of reasonable diligence" prior to her return to the United States from South Korea in 2003 (I. J. at 3-4). We conclude, however, that the respondent's eligibility for a section 2 l 2(k) waiver depends upon her state of mind when she applied for admission as an immigrant in 2000, not upon her state of mind when she reentered the United States as a returning LPR in 2003. By its terms, section 212(k) pertains to conditions existing when the applicant sought "admission" to the United States using an immigrant visa that was defective or invalid for some reason that was unknown to its bearer.4 The respondent has sought "admission" as an immigrant only once, in 2000. When the respondent presented herself for inspection as a returning LPR in 2003, she was not applying for "admission" as an immigrant. On the contrary, a returning LPR canno t be treated as an applicant for admission unless the DHS establishes the applicability of one or more of the six statutory conditions enumerated in section 101(a)(13)(C) of the Act, 8 U.S.C. l10l(a)(l3)(C). See Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). The DHS has not alleged or shown that any of those conditions applies here. Accordingly, we conclude that the respondent is eligible to apply for a section 2l 2(k) waiver. Alternatively, the Immigration Judge found that the respondent does not merit section 2 l 2(k) relief in discretion because she chose to reenter the United States in 2003 using her "green card"

Immigrant & Refugee Appellate Center | www.irac.net

The Ninth Circuit has determined that the respondent may seek a section 2 l 2(k) waiver to overcome her deportability under section 237(a)(l)(A) of the Act, given that the charge is based on an allegation that she was inadmissible at entry due to the lack of a valid immigrant visa. See Shin v. Holder, supra, at 1218 n.7.

4 While the phrase "before the time of the immigrant's application for admission" does not on its face appear to apply to aliens who did not enter the United States from a contiguous foreign country, in context it must so apply because the inadmissibility ground sought to be waived applies to those immigrants lacking a valid immigrant visa "at the time of application for admission. " Section 212(a)(7)(A)(i). Furthermore, there is no logical basis to distinguish in this respect between aliens coming from contiguous and non-contiguous countries. 2
Cite as: Jin Hee Shin, A047 415 708 (BIA Feb. 4, 2014)

,r

A047 415 708

despite 'having learned from her brother that there might be a problem with it. 5 In making this determination, the Immigration Judge noted that this negative factor was not overcome by the respondent's countervailing equities, given that she is unmarried and childless, as well as a native of South Korea, "an economically and culturally advanced democratic society" to which she could return without excessive difficulty. Finally, the Immigration Judge deemed it "of great importance" that the respondent had only been admitted to the United States in the first place because of a rogue INS agent's criminal conduct. We reverse. Unlike the Immigration Judge, we discern no equitable significance in the fact that the respondent obtained her immigrant visa as a result of fraudulent and criminal activity committed by others. Although her mother's fraudulent activity was sufficient to invalidate the respondent's admission as an immigrant-thereby triggering the removal charge in this matter it is undisputed that the respondent was ignorant of those activities and that she applied for admission as an immigrant in good faith. As a matter of discretion, the respondent cannot justifiably be held responsible for bad acts committed by others without her knowledge. The only other adverse factor identified by the Immigration Judge was the respondent's decision to reenter the United States as an LPR in 2003 after having been informed by her brother that there may be a problem with her green card. We do not consider that decision to be a significant adverse factor. The respondent was in possession of a facially valid green card that authorized her to enter the United States, and she had a home and a job in the United States at the time. It is expecting too much to insist that the respondent-who was honestly ignorant of the reasons underlying the "problem" with her green card-should have simply abandoned her residence in the United States at the first sign there might be something wrong. The respondent was under no such obligation, given that Congress has provided a remedy-Le., the section 212(k) waiver-for people in her situation. The respondent could have advised the immigration authorities at the port of entry that she had some doubts about her green card, but her failure to do so is not a compelling adverse discretionary factor. The respondent has been a resident of the United States for 13 years, is gainfully employed in this country as a registered nurse, has no criminal record, and is deportable solely because of the actions of others for which she is blameless. Under the circumstances, we conclude that the respondent's continued residence in the United States as an LPR is in the best interests of this country. Accordingly, we will reverse the Immigration Judge's decision denying her application for a section 212(k) waiver and remand the matter for the completion of background checks and the entry of an appropriate order. ORDER: The appeal is sustained. FURTHER ORDER: Pursuant to 8 C.F.R. 1003.l(d)(6), the record is rem anded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the Whether the Attorney General's discretion should be favorably exercised is a question of judgment that we decide for ourselves, see 8 C.F.R. 1003.l (d)(3)(ii), but any such judgment must be based on the Immigration Judge's factual findings rather than our own, see 8 C.F.R. 1003.1(d)(3)(iv). Absent clear error, the Immigration Judge's findings of fact are controlling on appeal, see 8 C.F.R. 1003.l (d)(3)(i).
3
5

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Jin Hee Shin, A047 415 708 (BIA Feb. 4, 2014) :&
- .

.&MW.J. .

..

...

A047 415 708

opporlunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by

8 C.F.R. 1003.47(h).

J.l

Immigrant & Refugee Appellate Center | www.irac.net

4
Cite as: Jin Hee Shin, A047 415 708 (BIA Feb. 4, 2014)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File: A047 415 708 - San Francisco, CA

In

Date:

FEB

4 Z014

re: JIN HEE SHIN

CONCURRING OPINION: Roger A. Pauley, Board Member

Immigrant & Refugee Appellate Center | www.irac.net

I respectfully concur. I disagree that the respondent was not an applicant for admission in 2003, when she sought to reenter the United States while in possession of a "green card" that was not lawfully obtained. As the Ninth Circuit found, while the respondent was not.at fault for her having obtained status derivatively as a lawful permanent resident (LPR), that status is deemed void ab initio because it was not substantively lawfully acquired. See Shin v. Holder, 607 F.3d f Koloamatangi, 23 I&N Dec. 548 (BIA 2003)). 1213 (9th Cir. 20 10) (citing, inter alia, Matter o The majority peg their reversal of the Immigration Judge's denial of a section 2 l 2(k) waiver to their assertion that the respondent was only an applicant for admission in 2000 when she sought admission as an immigrant, not in 2003 when she returned to the United States from Korea while in possession of ostensible LPR status, because, they argue, as a returning LPR, the respondent comes under the regime set forth in section 10 1(a)(l3)(C) of the Act, and could only be deemed an applicant for admission if she fell within one or more of the six enumerated exceptions in that subparagraph, none of which is applicable. But although I agree that none of the six exceptions applies, I do not agree with the majority's premise that she is subject to section 101(a)(13)(C). That provision's introductory language states: "An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien - [comes within one or more of six enumerated categories thereafter provided]." The majority assumes that the respondent satisfies the introductory language's description as being "an alien lawfully admitted for permanent residence." But that is not true. Under Matter o f Koloamatangi, supra, the respondent is deemed never to have been accorded such status, because it was wrongly conferred. Therefore, she does not fall under the regime created for aliens who rightly obtained LPR status, set forth in section I 01 (a)(13)(C). The majority's assumption that any alien who has a "green card" and who appears at a port of entry is within section 101(a)(13)(C), irrespective of whether the alien's LPR status is later found to have been fraudulently or otherwise wrongly obtained, is inconsistent with the definition of the term "lawfully admitted for permanent residence" contained in section 10l(a)(20) of the Act (in the same section, indeed the same subsection, of the Act as section 101(a)(13)(C)), that we construed in Matter o f Koloamatangi to require a substantively lawful obtaining of that status. 1 It would have been easy for Congress to have written the introductory
1 Moreover, in ascertaining Congress' intent, it is significant that our interpretation in Matter o f Koloamatangi, and that of courts of appeals reaching the same conclusion, long preceded the

enactment of section 101 (a)(20)'s definition, such that it was presumably known to Congress. (Continued . . ..)

. .

A047 415 708

language of section 101(a)(l3)(C) to state "An alien admitted for permanent residence," etc. (thereby eliminating the word "lawfully") to reach the result the majority finds. But its election to instead use the defined term an alien "lawfully admitted for permanent residence" clearly denotes its intention to have that regime apply only to those aliens whose LPR status was substantively rightly acquired. I thus would find that the respondent was an applicant for admission in 2003.2 However, I reach the same outcome as the majority because I disagree with the Immigration Judge that the respondent should be denied a section 212(k) waiver due to her alleged lack of due diligence in uncovering the unlawfulness of her LPR status prior to her 2003 entry. Instead, I concur with the majority that, on balance, she merits such relief in the exercise of discretion.

Immigrant & Refugee Appellate Center | www.irac.net

Roger A. Pauley Board Member

See, e.g., Matter of T, 6 l&N Dec. 136 (BIA, A.G. 1954); Monet 1986); Matter ofLongstaff, 7 16 F.2d 1439 (5th Cir. 19983).
2

v.

INS, 79 1 F.2d 752 (9th Cir.

we held in Matter of Valenzuela-Felix, 26 I&N Dec. 53 (BIA 20 12), such determinations are authoritatively made during proceedings before an Immigration Judge and this Board, not at the border.
As 2

 "' r

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT SAN FRANCISCO, CALIFORNIA In Re Jin Hee Shin

Respondent.

) ) ) ) ) ) )

File Number: A 047 415 708 In Removal Proceedings

Immigrant & Refugee Appellate Center | www.irac.net

MEMORANDUM

The respondent is a citizen of the Republic of Korea who was admitted to the United States purportedly as a lawful permanent resident in 2000. She was placed in removal proceedings in 2003 because her lawful permanent resident status was invalid, having resulted from a criminal fraudulent scheme. After a hearing, this court found that respondent's resident status was invalid, that she was removable as charged, and that she was ineligible for a waiver of inadmissibility under Section 212(k) of the Immigration and Nationality Act (INA). The BIA affirmed. The Court of Appeals for the Ninth Circuit affirmed the findings that respondent was not a lawful permanent resident and was removable as charged, but held that she was eligible to apply for a waiver of inadmissibility under INA Section 212(k), and remanded the case. Shin
v.

Holder, 607 F. 3d 1213 (9th Cir. 2010).

I. Background
As described in Hong
v.

Mukasey,

5 I 8 F. 3d

1030 (9th Cir. 2008), between roughly 1986

and 1994 a former supervisory employee of the Immigration and Naturalization Service named Leland Sustaire engaged in a scheme to sell lawful permanent resident cards to aliens in the United States. Because of Sustaire's supervisory position, he was able to direct the issuance of Form I-SS ls, commonly known as green cards, but he did so in exchange for money, not because the aliens involved in his scheme met the requirements to obtain resident status. Respondent's mother obtained a green card through Sustaire.1 She filed a petition for alien relative on behalf of respondent. In 2000, respondent was granted resident status by the U.S. Embassy in Korea based her mother's petition, and she entered the United States. After respondent was placed in removal proceedings, she asserted that her green card was valid and that she was a lawful permanent resident, despite the fact that the only reason she was able to obtain her status was as a result of her's mother's petition, and her mother had obtained her status through Sustaire's fraud. She argued in the alternative that she should be granted a

Respondent's mother was later placed in removal proceedings, the charges against her

were sustained, and she has departed the United States.

waiver under Section 212(k) of the INA, which allows the Attorney General, under certain circumstances discussed below, to waive a defect in an otherwise valid visa and allow the admission of the applicant to the United States. Section 212(k) states as follows: Any alien, inadmissible from the United States under paragraph (5)(A) or (7)(A)(i) of subsection (a) of this section, who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant's application for admission. This court denied the respondent's request to apply for a waiver of inadmissibility on two grounds: first, the respondent had already been admitted, and hence had no need for a waiver to allow her to be admitted; and second, while a waiver of inadmissibility would allow the admission of the applicant, the waiver would do nothing to make valid the respondent's invalid green card. Thus, even if admitted, respondent would lack any legal status in the United States. IJ oral decision of August 11, 2005 at pp. 5 -6. The BIA affirmed. The Board's approach in denying eligibility for the 212(k) waiver was that first, 212(k) applied only when the alien had been in possession of a valid visa, and the respondent's visa was invalid because it derived from the Sustaire scheme; second, the Board held that because the respondent never had a valid visa, she was not "otherwise admissible" to the United States. BIA decision, dated June 30, 2008. In Shin
v.

Immigrant & Refugee Appellate Center | www.irac.net

Holder, 607 F. 3d 1213 (9th Cir. 2010) a panel of the Ninth Circuit first held

that respondent was removable as charged and did not have valid lawful permanent resident status:" The Shins' arguments that they were lawfully admitted

for permanent residence despite Id at 1217.

their mother's status do not persuade us .. . . Significantly, the Shins were not substantively qualified for admission as LPRs at the time they entered the United States."

The panel divided on the issue of whether the respondent was eligible to applyfor a waiver under Section 2 12(k). Analyzing the BIA's holding that respondent was not "otherwise admissible," the majority held that the record did not reveal any impediment to respondent's admissibility other than the fraudulently-obtained visa. As a result, the majority held, respondent was "otherwise admissible," because the only impediment to admissibility was the impediment she sought to address with the 212(k) waiver. Judge Wallace dissented from this portion of the case, arguing that the phrase "otherwise admissible" was ambiguous and that the case should remanded to the BIA for a fuller explication of its views. Id. at 1221-25.

-2-

A hearing was held on October 14, 2011 after the case was remanded to this court, because no testimony had previously been taken on the merits of respondent's 2 12(k) application. Respondent testified and presented evidence in support of her application. See Remand Exs. I and 2. At the court's request respondent also supplied additional briefing on the legal issues in the case. Respondent's evidence showed that she was thirty-nine years old, that she is single and has no children. Her mother is in South Korea. Her brother (who was originally also a respondent in this case) has also returned to South Korea. Respondent has a sister in South Korea as well. Respondent has been employed as a registered nurse since 2004. She has been active in her local church and presented documents and several letters from members of her church and others attesting to her good character, as well as her tax returns. She has two uncles and a cousin in the United States. She said she has no arrests or convictions. During the October 14, 2011 hearing, respondent testified that when she first obtained her green card she had no inkling that there might be any problems with it. She was asked when she first learned there might be a problem and she said that occurred in April 2003. She said she had gone to South Korea for a visit and while there her brother telephoned her. Respondent's brother told her that when their mother had visited the United States in 2002 there was a problem with her green card, and he said that there might be a problem with respondent's green card as well. He told respondent that she should return to the United States as soon as possible. Respondent said she did so "almost immediately, within the next two weeks." She did not talk to her mother about what problem she had had. When she returned to the United States, she showed the officers at the airport her green card, and they admitted her to the United States without any questions.
II. Analysis A. Eligibility For A Section 212(k) Waiver

Immigrant & Refugee Appellate Center | www.irac.net

On the record before it at that time, the court of appeals held that respondent was eligible to apply for a Section 212(k) waiver. But when testimony was taken on October 14, 2011, facts emerged for the first time which show that respondent is not eligible for the waiver. Section 212(k) is available only if the facts that make the applicant's visa defective are not known to the immigrant or "could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure" for the United States. In this case, the respondent testified that she learned in April 2003, while in Korea, that there had been a problem with her mother's green card, and was put on notice that there might be a problem with her green card as well. The perpetrator of the scheme that had gotten respondent's mother her green card, Sustaire, had pied guilty to the green card scheme in February 2000 and had made a full confession, including providing the government with a list of Alien Numbers corresponding to the fraudulent

-3-

&&L 113} ... 2

fa

.1

 'f!lt {i fu

green cards he had issued. Respondent's mother's Alien Number was on Sustaire's list.2 Respondent made no inquiries of her mother, nor did she make any other inquiries, despite being told that her mother had had a problem with her green card and that there might be problem with hers. Instead, she testified that she came back to the United States as quickly as possible, using the green card that she knew was problematic.

Immigrant & Refugee Appellate Center | www.irac.net

As with the respondent in Matter o f Aurelio, 19 I&N Dec. 458 (BIA 1987) this respondent failed to exercise any diligence and failed to take any steps to ascertain information about the possibility that her green card was defective. Instead, she did exactly what 212(k) is designed to deter: she used the defective green card to quickly return to the United States and gain admission. Based on the foregoing, the court finds that respondent is not eligible for a waiver under Section 212(k).

B. Discretion
In the alternative, even if respondent is eligible for a Section 212(k) waiver, the application is denied as a matter of discretion. As with any discretionary determination, this court must balance the positive and negative factors in this case. See generally Matter o f Arai, 13 I&N Dec. 494 (BIA 1970). As favorable factors, the court notes that respondent does have about twelve years of presence in the United States, she has paid her taxes, she is employed, has good character, and has no arrests or convictions. However, respondent's family ties to this country are insubstantial. Her mother, brother and sister are in Korea; only uncles and a cousin are here. Respondent is single and has no children. She has no persons in the United States who are dependent on her continued presence for support. No legitimate petition for alien relative has ever been filed on her behalf. The Republic of Korea is an economically and culturally advanced democratic society, and respondent is able to speak Korean. Of great importance to this court is the fact that the only reason respondent is present in the United States and in a position to apply for a Section 212(k) waiver is because of the criminal conduct of Leland Sustaire. It is true that respondent did not personally participate in fraudulent conduct. But as the court of appeals noted

in Shin, respondent had no basis independent of Sustaire for entry into the

United States. It is also true that respondent is not a criminal. But there are thousands upon thousands of people all over the world who are not criminals and who would like to have their applications for permanent residence approved immediately. Respondent proposes to be put at the head of the line for no other reason than that her mother obtained a green card as a result of Leland Sustaire's fraudulent scheme. An additional negative factor is that respondent used her green card to reenter the United States after she had been put on notice that there could be a

2 Respondent acknowledged these facts, with citations to the administrative record, in her opening brief to the court of appeals. 2007 WL 212412128 at pp. 5-6. -4-

r
. '

problem with the card.

In his briefing respondent's counsel described respondent as a victim of Sustaire's

scheme.

But, as a practical matter, respondent has had the privilege of living in this country for

over a decade because of the Sustaire scheme. The court is mindful that if respondent has to return to her family in Korea there will be some disruption of her life as she currently know it. But on balance; the court finds that the negative factors stated above outweigh the positive factors

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in the case, and respondent's application for a Section 212(k) waiver is denied as a matter

of discretion.
III. ORDERS: Respondent's application for a waiver under Section 212(k) of the Immigration

and Nationality Act is denied. Respondent is granted voluntary departure as set forth in this court's August 11, 2005 order, with an alternative order of removal to the Republic of Korea.

Dated: May 18, 2012 Immigration Judge