Hyuk Lim v. Eric H. Holder Jr.
2013 U.S. App. LEXIS 6005
| 9th Cir. | 2013Background
- Lim, a South Korean citizen, seeks review of removal order for violating student visa terms.
- He entered U.S. in 1989, left 1994–1998 for mandatory military service in Korea, returned in 2001 on a visitor visa, and switched to a student visa in 2004.
- He violated the visa terms by working while enrolled, leading to a Notice to Appear on February 27, 2006.
- To qualify for ten years of continuous presence, Lim would have needed presence since February 27, 1996, which is not satisfied given his 1994–1998 absence.
- Lim argued a special military-service exception under 8 U.S.C. § 1229b(d)(3) should count his service as continuous presence.
- The Board denied cancellation of removal and rejected Lim’s theory that military ties justify a broader exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Lim eligible for cancellation based on ten years' continuous presence? | Lim argues military ties count toward continuous presence. | Board holds no such counting rule; absence breaks continuity. | No; ten years not satisfied due to periods of absence. |
| Does the military-service exception extend to Lim under 8 U.S.C. § 1229b(d)(3)? | Lim contends allied-military service should count as U.S. military service. | Exception limited to U.S. armed forces; not extended to allied militaries. | Not extended; statute does not cover Lim. |
| Does due process or equal protection challenge succeed to broaden the exception? | Lim invokes due process/equal protection to obtain broader benefit. | Court should apply rational-basis review; Congress has broad power over immigration. | Rejected; rational-basis justification for the limitation. |
Key Cases Cited
- Munoz v. Ashcroft, 339 F.3d 950 (9th Cir. 2003) (cancellation is discretionary; no due process substantive right)
- Reno v. Flores, 507 U.S. 292 (Supreme Court 1993) (rational basis review applies to congressional immigration policies)
- Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320 (Supreme Court 1909) (governmental power to expel/exclude aliens is broad)
- Mezei v. Mezei, 345 U.S. 206 (Supreme Court 1953) (sovereign control over admission of aliens largely immune from judicial control)
- Tak Shan Fong v. United States, 359 U.S. 102 (Supreme Court 1959) (naturalization preference for service in armed forces; policy context cited)