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.
1213
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.
Before J. CLIFFORD WALLACE, SUSAN P. GRABER, and M. MARGARET McKEOWN, Circuit Judges.
We consider a non-citizen‘s eligibility for a waiver of inadmissibility under
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.
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
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
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.”
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,
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
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
Finally, the IJ did not improperly revoke the Shins’ alien relative petitions. Although IJs lack authority to decide whether an alien relative visa petition should be granted or revoked, they have jurisdiction to determine inadmissibility. See
II. SECTION 212(k) WAIVER
The Shins argue in the alternative that, even if they are removable, they are entitled to seek a waiver of inadmissibility under
(k) Attorney General‘s discretion to admit otherwise inadmissible aliens who possess immigrant visas
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.
Id. The BIA held that the Shins were ineligible to seek § 212(k) relief because they were never in possession of a valid immigrant visa and thus were not “otherwise admissible” within the meaning of the statute.7
The regulations also confirm that § 212(k) relief has long been available to deportable non-citizens such as the Shins. Prior to the 1996 immigration reform, former
The BIA‘s conclusion does not comport with a plain reading of the statute. As an initial matter, the government argues that we owe Chevron deference to the Board‘s construction of
We turn first to a plain reading of the statute. Section 212(k) imposes three threshold requirements: (1) that the non-citizen be inadmissible under
The Shins similarly meet the second requirement because they were in possession of invalid immigrant visas at the time of entry. The BIA‘s apparent assumption that the “immigrant visa” in § 212(k) refers to a substantively valid visa conflicts with the statutory text. By definition, § 212(k) refers to visas that are invalid in nature—otherwise, the applicant would not be seeking a waiver of inadmissibility in the first place. Moreover, there is no textual basis for building-in substantive validity as a threshold criteria and excluding visas that are void ab initio from § 212(k) relief. Indeed, when § 212(k) is read with the inadmissibility grounds it incorporates, it is clear that § 212(k) extends to the visas that the Shins presented at entry. Section 1182(a)(7)(A)(i)(II) makes inadmissible “any immigrant at the time of application for admission . . . whose visa has been issued without compliance with the provisions of section 1153 of this title.” (emphasis added). Section 1153 in turn sets forth the substantive eligibility requirements for immigrant visas, including the visas which the Shins were improperly granted. See
Finally, the Shins meet the third requirement in that their lack of a valid visa is the only reason they have been found inadmissible. As a result, they are “otherwise admissible.” The invalidity of the Shins’ visa goes to the first threshold requirement, not the third. The BIA‘s conclusion that the Shins are not “otherwise admissible” because they lacked a valid visa conflates these requirements.
Despite this plain reading of the statute, the government seeks to bolster the BIA‘S holding that the Shins were not “otherwise admissible” by citing the definition of “immigrant visa” at
The government argues further that the § 212(k) waiver is never available “to cure fraud, or to legitimize an ‘application’ procedure that was in all other respects invalid.” Instead, this section covers only situations in which a visa was initially approved according to proper procedures, but unforeseen events rendered the visa holder inadmissible by the time he arrived at the border. The basis for this argument is unclear. As an initial matter, there are no allegations that the Shins committed fraud. More importantly, the government‘s position regarding invalid visas—for which it cites no authority—departs from the plain text of the statute. The very essence of the statute authorizes the Attorney General to waive “inadmissibility” based on invalid documentation in general.
The one Court of Appeals decision to have addressed and affirmed the grant of § 212(k) waiver, Mayo v. Ashcroft, 317 F.3d 867 (8th Cir.2003), supports our interpretation of the statute. Mayo, a citizen of the Philippines, obtained an immigrant visa and attempted to enter the country as
Mayo is relevant because the Eighth Circuit affirmed the grant of § 212(k) relief even though Mayo was not entitled to her visa at the time it became available to her. Mayo applied for her visa in 1981 and was allegedly married in June 1983; her visa did not become available to her until 1987. Mayo v. Schiltgen, 921 F.2d 177, 178-79 (8th Cir.1990). On these facts, Mayo became ineligible for her visa when she married, and thus her visa was substantively invalid when issued in 1987. Nevertheless, as the Eighth Circuit held, § 212(k) relief remained available to waive Mayo‘s excludability. Similarly, in Senica, we considered the merits of a § 212(k) petition even though the petitioners’ underlying visa was substantively invalid, 16 F.3d at 1014-16, as did the BIA in Matter of Aurelio, 19 I & N Dec. 458, 459, 462-63 (BIA 1987).
In sum, the Shins were inadmissible under the specific statutory provisions referenced within § 212(k) because they had no valid immigrant visa and, other than the visa defect, they were otherwise admissible. This reading of the statute gives meaning to the threshold clauses of the statute. Compliance with the statutory requirements renders the Shins eligible for a waiver of inadmissibility.
CONCLUSION
Because nothing in § 1182(k) precludes the Shins from seeking a waiver of inadmissibility, we reverse the BIA and remand for a ruling on the Shins’ applications for relief. See INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per curiam).
The petitions for review are GRANTED.
WALLACE, Circuit Judge, dissenting:
I dissent from the majority‘s opinion because I have a real doubt that it represents the plain meaning of the statute,
I.
I agree with the result reached in section one of the majority opinion, which holds that the Shins are removable because they were never lawfully admitted to the United States. The Shins obtained their immigrant visas derivatively of their mother, Ok Nyo Lee, who was admitted to lawful permanent residence (LPR) status in 1991. Ms. Lee‘s status, however, was void ab initio for noncompliance with the immigration laws, and the Shins’ derivative visas are therefore void as well. See Monet v. INS, 791 F.2d 752, 753 (9th Cir.1986); In re Koloamatangi, 23 I. & N. Dec. 548, 549 (BIA 2003).
II.
I disagree, however, that the Shins are nevertheless eligible to seek the waiver of inadmissibility provided in section 212(k) of the Immigration and Nationality Act (INA).
The Shins meet the first prerequisite set forth in section 212(k): they were deemed inadmissible under
The majority reads the statute as imposing two relevant preconditions to the Shins’ eligibility for a 212(k) waiver: that they be inadmissible under section 1182(a)(7)(A)(i) and that they be “otherwise admissible.” The majority reasons that the Shins’ lack of valid visas is relevant only to the first requirement. The majority reasons, further, that to consider the Shins’ lack of valid visas as to the second requirement would conflate the two requirements and render the term “otherwise” surplusage.
But what is the meaning of the term “otherwise admissible” under the majority‘s view? And what of the requirement that aliens seeking section 212(k) waivers be “in possession of an immigrant visa“? The majority‘s opinion does not represent the plain meaning of section 212(k). The provision, like many other waiver provisions within the INA, is directed at the difficult task of providing a discretionary avenue for the admissibility of otherwise inadmissible persons. Indeed, use of the phrase “otherwise admissible” in other sections of the statute has given rise to disagreement and confusion. See, e.g., Reid v. INS, 420 U.S. 619 (1975); INS v. Errico, 385 U.S. 214, 218 (1966) (“The sharp divergence of opinion among the circuit judges in these cases indicates that the meaning of the words ‘otherwise admissible’ is not obvious“); H.R. Rep. 97-264 at 24-25, reprinted at 1981 U.S.C.C.A.N. 2577, 2593-94 (stating that, in relation to family waiver provision, “the scope of the waiver and the meaning of ‘otherwise admissible’ have become increasingly unclear“).
My doubts are reinforced by looking at the history and intent of the waiver. Section 212(k) was added in 1981 “to authorize the Attorney General to waive certain technical defects in immigrant visas which are not the fault of the alien involved.” H.R. Rep. 97-264, 34, reprinted in 1981 U.S.C.C.A.N. 2577, 2603 (emphasis added); see also C. Gordon, et al., Immigration Law and Procedure § 63.12 (“§ 212(k) is intended to provide relief from technical defects in visas that are not the fault of the noncitizen“). For example, the “waiver may be granted if the foreign consulate placed an improper classification symbol on the immigrant visa cover page, or where a classification has changed due to the noncitizen turning twenty-one years old.” C. Gordon, et al., Immigration Law and Procedure § 63.12 A provision similar to section 212(k) existed in earlier versions of the act, but was inadvertently dropped
The majority reasons that to consider the Shins’ lack of valid visas as to both the first relevant precondition to eligibility for a 212(k) waiver—inadmissibility pursuant to 1182(a)(7)(A)(i)---and the second relevant precondition—that the Shins be “otherwise admissible“—results in impermissible “double counting.” Instead, the majority reasons, application of 212(k) waives the relevant basis for inadmissibility, and the Shins are therefore admissible “‘other’ than because of the invalid visa.” Cf. Corona-Mendez v. Holder, 593 F.3d 1143 (9th Cir.2010); Matter of Sosa-Hernandez, 20 I & N Dec. 758 (1993). The facts of the present case are quite distinct, to my mind, from the circumstances of Corona-Mendez and Sosa-Hernandez, which concerned the 237(a)(1)(H) waiver.
The Shins’ visas were derivative of their mother‘s fraudulently-obtained LPR status, and thus void ab initio. It would appear that the Shins were never in possession of valid visas and also were not “otherwise admissible” because, without status derivative of their mother‘s status, there was no basis for their admission to the United States. The Shins are not “otherwise” inadmissible because of a defect in their visas, but the total non-existence of the precondition to their issuance in the first place. The 212(k) waiver might eliminate the defect in the Shins’ visas, but that waiver alone does not provide a basis for their admission, which was predicated on their mother‘s fraudulently-obtained status.
III.
I doubt that the Shins’ situation represents the type of inadmissibility that section 212(k) was intended to remedy, and do not agree that the majority opinion represents the plain language of the statute. Indeed, the majority‘s opinion is inconsistent with that of the Board in this case. I agree with the majority that we have not yet been presented with an opinion from the Board that is entitled to Chevron deference. Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The Board‘s decision in the Shins’ case is an unpublished one-member decision that does not represent binding agency precedent. See Ramos-Lopez v. Holder, 563 F.3d 855, 858-59 (9th Cir.2009); Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.2009).
The Board‘s opinion is nevertheless entitled to Skidmore deference. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Under this standard, “The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” United States v. Mead Corp., 533 U.S. 218, 228 (2001), citing Skidmore, 323 U.S. at 140; see also Morales-Garcia v. Holder, 567 F.3d 1058, 1061 (9th Cir.2009) (“Where, however, the [Board] resolves an appeal in an unpublished decision, as in this case, we defer to its interpretations of the INA not resolved by prior precedential decisions only to the extent of its thoroughness and overall persuasiveness“); Miranda Alvarado v. Gonzales, 449 F.3d 915, 922 (9th Cir.2006) (collecting cases).
The Board determined that the Shins were not eligible for a 212(k) waiver because “the respondents stand as aliens who have never been in possession of a valid immigrant visa.” The Board also determined that the Shins were not “otherwise
IV.
Obviously, the three judges of this panel lack consensus on the meaning of section 212(k). The statute is not, as the majority says, clear. I question why it is necessary to interpret the statute in a vacuum, without guidance from the Board, as the majority does. In light of our duty to defer to an agency‘s reasonable interpretation of a statute that it administers, Chevron, 467 U.S. 837, and the “ordinary remand requirement,” INS v. Orlando Ventura, 537 U.S. 12, 17 (2002) (per curiam), I would remand to the Board to give the Board an opportunity to rule, in a precedential opinion, on the issue of statutory interpretation presented here.
The importance of deference to an implementing agency is part of our law. In Chevron, the Court emphasized: “We have long recognized that considerable weight should be accorded to an executive department‘s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.” 467 U.S. at 844 (footnote omitted); see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (Board interpretation of INA is entitled to deference); Auer v. Robbins, 519 U.S. 452, 456-58 (1997). When we proceed to the interpretation of a statute in the absence of agency guidance, we create the potential for conflict between ourselves and the agency, and between ourselves and other circuits. Inversion of this sequence is not without consequences. See, e.g. Nat‘l Cable & Telecomm. Ass‘n v. Brand X Internet Servs., 545 U.S. 967 (2005); id. at 1015-20 (Scalia, J., dissenting); Mead, 533 U.S. at 239-61 (Scalia, J., dissenting).
Remand is an appropriate option. In Orlando Ventura, the Court advised that, “[g]enerally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” 537 U.S. at 16; see also Gonzales v. Thomas, 547 U.S. 183 (2006) (per curiam). Since Orlando Ventura, we have endeavored to distinguish “between circumstances in which remand is necessary . . . and circumstances in which remand is unnecessary because the BIA exercised its expertise before the case came before us.” Kawashima v. Holder, 593 F.3d 979, 987 (9th Cir.2010); see also Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132-34 (9th Cir.2006) (en banc) (declining to remand where the legal issue was the interpretation of a state criminal statute, which was not an area committed to the agency‘s expertise); Perez-Enriquez v. Gonzales, 463 F.3d 1007, 1014-15 (9th Cir.2006) (en banc).
In some cases we have remanded to the Board for its guidance on a question of statutory interpretation arising under the INA. For example, in Velazquez-Herrera v. Gonzales, we remanded a petition to the Board “so that it may issue a precedential decision defining what constitutes a crime of child abuse [as used in the INA] and apply that definition to petitioner‘s convic-
Both the rule of Chevron deference and the ordinary remand rule sound in the same rationale: deference to the agency charged with the administration of a statute in the first instance. The agency possesses expertise in the subject matter and has been entrusted with administration of the relevant statutory scheme. See Brand X, 545 U.S. at 980. In light of the Board‘s view in this case, and my own reading of the statute, I do not believe that the majority‘s opinion represents the plain meaning of the statute. Although the Board‘s decision in this case is not precedential, it is persuasive. To resolve this obvious different definition of the meaning of the statute, I believe that the most prudent course is to remand the issue to the Board for a published opinion.
I therefore dissent.