In Gun Choe v. Immigration & Naturalization Service

11 F.3d 925, 93 Daily Journal DAR 15779, 93 Cal. Daily Op. Serv. 9177, 1993 U.S. App. LEXIS 32264, 1993 WL 513208

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 1993
• Docket: 91-70443
• Status: Published

Opinions

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 excluda-ble 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.

I

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 nonimmi-grant 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 Ange-les 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 lawful permanent resident status on September 17, 1982.² Choe never attended the church seminar in New York.

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.

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. § 1251(a)(1) for having been excludable at time of entry under 8 U.S.C. § 1182(a)(19) [presently codified at 8 U.S.C. § 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. § 1251(a)(1) for having been excluda-ble at time of entry under 8 U.S.C. § 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. § 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. § 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 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. § 1182(a)(19).

Second, the BIA held that Choe was de-portable under § 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.

II

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, 88 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 § 245, 8 U.S.C. § 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. § 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. § 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 excluda-ble by the law existing at the time of such entry;

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

Except as otherwise provided in this Act, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:

(20) Except as otherwise specifically provided in this Act, any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this Act....

The time of entry was January 1982; Choe applied for admission by arriving in the United States. He did not have a valid unexpired immigrant visa; he had a nonimmigrant visitor visa pursuant to 8 U.S.C. § 1101(a)(15)(B). This section allows the issuance of a nonimmigrant visa to “an alien ... having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.”

The INS claims that Choe intended to permanently immigrate to the United States — making his nonimmigrant visa invalid. Without a valid nonimmigrant visa, Choe was excludable, and is therefore deportable, under § 1182(a)(20). The INS insists that this entire proceeding, focused upon Choe’s initial entry in January 1982, has nothing to do with adjustment of status. The BIA found Choe had a preconceived intent to remain — making him an immigrant without a valid immigrant visa. Or put another way, his preconceived intent made his nonimmi-grant visa invalid.

Prior to 1960, entry into the United States with a preconceived intent to remain was a statutory bar to adjustment of status. Congress eliminated the bar with the Act of July 14, 1960, Pub.L. No. 86-648, 74 Stat. 505. See Matter of Ibrahim, 18 I & N Dec. 55, 57 (BIA 1981) (“Entry into the United States with a preconceived intention to remain was once a statutory bar to adjustment of status. Congress eliminated that bar in 1960.”) A preconceived intent to remain is only one factor to be considered in exercising discretion on an adjustment application. Matter of Battista, 19 I & N Dec. 484, 486 (BIA 1987). Choe claims that the INS interpretation in effect reinstates preconceived intent as a bar to legal permanent residence status.

The INS argument, stated simply, is this: Although preconceived intent does not statutorily bar adjustment of status, after an alien’s status has been adjusted to legal permanent resident, the alien can still be deported for entry with preconceived intent to remain. This statutory interpretation entirely negates the Congressional mandate that preconceived intent does not bar nonimmigrant aliens from becoming immigrant aliens.

The difficulty with the INS position becomes clearer in the context of a different scenario. If an alien, previously convicted of a drug offense, entered the United States and applied for adjustment of status, she would be excludable pursuant to 8 U.S.C. § 1251(a)(1). She would also be unable to receive an immigrant visa in her country of origin because of the drug offense. See Monet v. INS, 791 F.2d 752 (9th Cir.1986).

If Choe had been denied adjustment of status based on preconceived intent, he could have returned to Korea and applied for an immigrant visa and the denial of adjustment of status would not be considered at all. The alleged fact that he was excludable under § 1182(a)(20) when he entered in 1982 would not have prevented him from obtaining an immigrant visa overseas if he was denied adjustment in the exercise of discretion.

Choe’s position must be accepted to give any foundation to adjustment of status. The INS cites to Oloteo v. INS, 643 F.2d 679 (9th Cir.1981) and Monet for support of their contrary position. In Oloteo, the INS commenced deportation proceedings against adjusted aliens on the basis that their entry visas had been obtained by fraud under 8 U.S.C. § 1182(a)(19). In Monet, the INS commenced deportation proceedings under 8 U.S.C. § 1182(a)(ll) against an adjusted alien because he had been convicted of possession of marijuana prior to his entry. Both of these “violations” are statutory bars to becoming a legal permanent resident. As previously discussed, preconceived intent is not a statutory bar to adjustment of status; it is a discretionary factor to be considered by the Attorney General. If the INS can now deport Choe based upon preconceived intent, the INS has reinstated the statutory bar removed by Congress.

Aliens who obtain adjusted status have a legitimate expectation that their immigration will be permanent. In Fulgencio v. INS, 573 F.2d 596, 598 (9th Cir.1978), we found unfair an order of adjustment that was granted on a conditional basis because it “undermine[d] the security which ought to attend permanent resident status.” We have since held that the INS may deport adjusted aliens at any time because of violations that are statutory bars. Yet adjusted aliens are still entitled to some minimal sense of security in their permanent resident status. They should not remain constantly at risk for deportation because of preconceived intent, a discretionary factor considered during the adjustment proceeding itself.

This leads us to a per se rule. Aliens who have had their status adjusted under § 245 of the INA cannot later be deported for preconceived intent to remain in the United States at the time of initial entry. This does not mean that aliens who have been adjusted cannot be deported for other immigration violations — violations that are statutory bars to adjustment of status in the first place. The time for the INS to address preconceived intent is at the adjustment of status stage. Fraud, if proved was inherent in the visa application; no fraud was inherent in the adjustment of status application. Taking every allegation against Choe as true, the INS cannot deport Choe on the basis of preconceived intent to remain in the United States after his adjustment of status.

Ill

We GRANT the petition for review and REMAND to the Board of Immigration Appeals with instructions to terminate the deportation proceedings. Each party shall bear its costs of appeal.

1 . Third preference visas are generally allotted to individuals in professions that require a college education. A non-ordained minister would qualify for a third preference visa. Third preference visas were available for prospective immigrants from Korea at that time. Interpreter Releases, vol. 20, No. 20, Appendix IV, May 20, 1982.

2 . Choe was not adjusted as a third preference immigrant, but rather as a special immigrant minister pursuant to 8 U.S.C. § 1101(a)(27)(C)(i).

3 . The Immigration and Nationality Act of 1990 amended, reorganized, and redesignated significant portions of the Immigration and Nationality Act of 1952. For consistency with the administrative record, citations are to the Act prior to the 1990 amendments.

4 . Certain sections of the INA appear to prevent Choe’s deportation. INA § 246(a), 8 U.S.C. § 1256(a), provides for rescission of adjustment of status acquired under § 245 if "it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status.” See Kim v. Meese, 810 F.2d 1494 (9th Cir.1987). However, there is a five-year statute of limitations on § 246 rescissions. The Justice Department has tried to explain away this provision, in an act nearly devoid of statutes of limitations, as "a historical anomaly or the result of an accident in the legislative process.” Oloteo v. INS, 643 F.2d 679, 683 n. 8 (9th Cir.1981). In two significant cases, the BIA read the section as providing immunity to removal for an adjusted alien after five years had passed. In both cases, the Attorney General reversed the BIA. Matter of S., 9 I & N Dec. 548 (BIA 1961; AG 1962); Matter of Belenzo, 17 I & N Dec. 374 (BIA 1980; AG 1981). As a result, if the INS seeks to remove an adjusted alien within five years, it must commence rescission proceedings first, and then, if successful, start deportation proceedings. After five years, the INS may go directly to deportation proceedings. See Matter of Saunders, 16 I & N Dec. 326 (BIA 1977). The bottom line is § 246 does not prevent the removal of adjusted aliens.