Shin v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOUNG SUN SHIN,  Nos. 06-71955
Petitioner, 06-74052
v.
 Agency No.
A72-976-144
MICHAEL B. MUKASEY, Attorney
General, ORDER AND
Respondent.
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 7, 2007—San Francisco, California
Filed October 23, 2008
Before: Dorothy W. Nelson and Carlos T. Bea,
Circuit Judges, and Louis F. Oberdorfer,*
Senior District Judge.
Opinion by Judge Bea
*The Honorable Louis F. Oberdorfer, Senior United States District
Judge for the District of Columbia, sitting by designation.
14779
14782 SHIN v. MUKASEY
COUNSEL
Alex Park, Santa Clara, California, for the petitioner.
William Roppolo, Liquita Thompson, Celina Joachim, Jordan
Faykus, Kendra Massumi, Baker & McKenzie LPP, Miami,
Florida, Pro Bono Amicus Curiae for the petitioner.
Peter Keisler, James Grimes, Sarah Maloney, United States
Department of Justice, Washington, D.C., for the respondent.
ORDER
The petition for panel rehearing is granted in part. The
motion to file a petition for rehearing by amicus curiae is
denied. The opinion filed earlier is withdrawn, and the
attached opinion filed today is substituted in its place.
OPINION
BEA, Circuit Judge:
We consider today whether an alien who overstayed her
tourist visa, and then paid $10,000 for the purchase of a fraud-
ulent alien registration card (known as a “green card”) manu-
factured by a corrupt federal immigration employee, can bar
the government from removing her from this country on the
grounds the government is estopped to assert the green card
is bogus. Unsurprisingly, we hold the government cannot be
SHIN v. MUKASEY 14783
saddled with the felonious, unauthorized issuance of resi-
dency documentation by a thieving employee.
Young Sun Shin petitions for review from a final order of
removal from the Board of Immigration Appeals (“BIA”) and
from the BIA’s denial of her motion to reopen. Petitioner also
seeks a remand to file a second motion to reopen. Petitioner
claims the government failed to meet its burden of showing
she was removable. As a fallback, she claims that, because
government employee Leland Sustaire engaged in affirmative
misconduct, the government should be estopped from remov-
ing her. Petitioner expressly conceded removability. She did
not apply for any form of relief from removability. Her due
process violation claims are without merit. Hence, we deny
her petition for review of the removal order.
Petitioner also seeks reconsideration of the BIA’s denial of
her motion to reopen and she seeks a remand to file a second
motion to reopen to adjust her status. The BIA denied her
motion to reopen because petitioner failed to attach the neces-
sary documentation showing she was entitled to adjust her
status. Because petitioner does not now demonstrate she
would be entitled to adjust her status on remand, nor that the
BIA’s denial of her motion to reopen was error, her petition
for review from the denial of her motion to reopen and her
motion to remand are also denied.
I.
Petitioner, a native and citizen of the Republic of Korea
(“South Korea”), originally entered the United States in June
of 1993 on a tourist visa that allowed her to remain for six
months. In October of 1994, petitioner received an alien regis-
tration card (a “green card”) which adjusted her status to a
lawful permanent resident. The card allowed her to stay in the
United States as the spouse of a skilled worker or professional
holding a baccalaureate degree. At the time, petitioner had no
husband; she had been divorced for three years. What is more,
14784 SHIN v. MUKASEY
her former husband, who had never been to the United States,
held only a high school diploma.
Petitioner obtained her permanent resident status through
Kyun Min Lee (“Lee”), a runner for Leland Sustaire, who was
using his government position to sell fraudulent green cards.
For a complete background on Sustaire and the conspiracy,
see this court’s opinion in Hong v. Mukasey, No. 06-72823.
Petitioner paid Lee $10,000 to obtain her green card. She
never went to an Immigration and Naturalization Office
(“INS”) office, nor was she interviewed by an INS agent.
Petitioner claims she was unaware of the fraud until she saw
an article about Lee’s indictment in 2000.
Sustaire had compiled a list of “A” numbers that identified
aliens who had obtained unlawful changes in their status as a
result of his fraudulent scheme. Petitioner’s number appeared
on this list. Petitioner came to the attention of the INS when,
as part of a plea bargain, Sustaire’s attorney delivered the list
to the Department of Homeland Security’s (“DHS”) Office of
the Inspector General. Petitioner was charged with removabil-
ity for being an alien not in possession of valid documents for
admission under Immigration and Nationality Act (“INA”)
§ 237(a)(1)(A), codified at 8 U.S.C. § 1227(a)(1)(A), and for
remaining in the United States for a time longer than permit-
ted under INA § 237(a)(1)(B), codified at 8 U.S.C.
§ 1227(a)(1)(B).
At the hearing, in exchange for the government’s agree-
ment to drop an additional fraud charge pending against peti-
tioner, petitioner conceded she did not possess valid
immigration documents. Petitioner denied the charge that she
had remained in the United States longer than permitted.
However, she did not apply for any form of relief from
removal.
The Immigration Judge (“IJ”) sustained both charges of
removability and ordered petitioner removed to South Korea.
SHIN v. MUKASEY 14785
The IJ declined to address petitioner’s argument that the gov-
ernment had “unclean hands” in the removal proceeding
because of Sustaire’s misconduct and, therefore, should be
estopped from removing her.
On appeal, the BIA adopted and summarily affirmed the
IJ’s decision. Petitioner then filed a motion to reopen to file
an application to adjust her status. In support of her motion to
reopen, petitioner submitted a copy of her application and
documentation of an approved labor certification. However,
she failed to attach an approved I-140 Form (a petition to
adjust her status to an alien worker) or other pertinent docu-
mentation, as required by 8 C.F.R. § 1003.2(c). Accordingly,
the BIA denied her motion to reopen.
II.
When the BIA adopts the decision of the IJ, we “review the
IJ’s decision as if it were that of the BIA.” Abebe v. Gonzales,
432 F.3d 1037, 1039 (9th Cir. 2005) (en banc).
We review “the IJ’s findings of fact for substantial evi-
dence and will uphold these findings if they are supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” Id. at 1039-40 (quotation marks and
citation omitted). We review questions of law, including due
process challenges, de novo. Ramirez-Alejandre v. Ashcroft,
319 F.3d 365, 377 (9th Cir. 2003).
We have jurisdiction to review the BIA’s final order of
removal against petitioner. 8 U.S.C. § 1252.
Petitioner argues the government should be estopped from
removing her due to Sustaire’s actions. Under 8 U.S.C.
§ 1252(g), we have no “jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders . . . .” See also
14786 SHIN v. MUKASEY
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.
471, 482 (1999). However, we have jurisdiction over petition-
er’s equitable estoppel claim because it arises from actions
taken by a corrupt government employee prior to any decision
made by the Attorney General to commence proceedings
against her. See Wong v. United States, 373 F.3d 952, 965
(9th Cir. 2004) (holding that Ҥ 1252(g) does not bar review
of actions that occurred prior to any decision to ‘commence
proceedings’ ”).
III.
[1] Substantial evidence supports the IJ’s finding petitioner
remained in the United States longer than permitted. Peti-
tioner was admitted to the United States as a visitor for six
months in 1993 and later obtained an invalid resident alien
card as part of Sustaire’s criminal, fraudulent scheme. On the
basis of this documentary evidence and also considering
Sustaire’s testimony before the court, the IJ found “there is no
doubt . . . [Shin] is not and has never been in possession of
a valid resident alien card.” The evidence proves the only
lawful basis for petitioner’s presence in the United States was
her visitor’s visa which allowed her to stay for only six
months and expired in December of 1993. Hence, substantial
evidence supports the IJ’s ruling petitioner was removable for
having remained in the United States longer than allowed by
her valid immigration documents.
[2] Petitioner argues the government failed to meet its bur-
den of showing she was removable under INA § 237(a)(1)(A).
“The government has the initial burden of establishing the
alien’s deportability by clear and convincing evidence.”
Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir. 1985). How-
ever, where the alien concedes removability, “the govern-
ment’s burden in this regard is satisfied.” Id. At the hearing
before the IJ, petitioner’s counsel expressly conceded remov-
ability on the ground she was not in possession of valid docu-
ments for admission. Additionally, petitioner did not apply for
SHIN v. MUKASEY 14787
any form of relief from removability. On the basis of petition-
er’s concession, the government’s burden is satisfied and peti-
tioner’s claim is without merit. Id.
IV.
[3] The transcript of Sustaire’s confessional deposition,
Sustaire’s list of the “A” Numbers of aliens to whom he
fraudulently gave green cards, and the records of criminal
convictions in Sustaire’s and Lee’s cases, were all admitted at
petitioner’s hearing. In the interest of judicial economy, the IJ
arranged for Sustaire to be deposed on two different dates,
first by attorney Alex Park, who represented petitioner and
over 100 other aliens, and then by the attorneys representing
the remaining aliens. Petitioner, through counsel, objected to
the use of Sustaire’s consolidated testimony and now alleges
the IJ violated her due process rights by admitting Sustaire’s
deposition testimony in her removal proceedings. We dis-
agree.
[4] “In order to successfully attack by judicial proceedings
the conclusions and orders made upon such [removal] hear-
ings it must be shown that the proceedings were manifestly
unfair” and that the actions of the IJ were such as to prevent
a fair investigation. Low Wah Suey v. Backus, 225 U.S. 460,
468 (1912). Petitioner’s proceeding was not so fundamentally
unfair that she was prevented from reasonably presenting her
case. Petitioner’s counsel participated in Sustaire’s deposition
and was allowed to cross-examine him. Petitioner also had the
benefit of hearing and comparing Sustaire’s responses to other
attorneys’ questions. Additionally, during each alien’s hear-
ing, Sustaire was made available if additional testimony was
needed. Most importantly, petitioner was given an individual
hearing before an IJ where any defenses or claims for relief
were heard. Because we find no procedural defect amounting
to a due process violation in this procedure, petitioner’s due
process claim fails.
14788 SHIN v. MUKASEY
V.
[5] Petitioner contends the government should be equitably
estopped from removing her. At the heart of her estoppel
argument is the claim she was unaware “of the bribery and
fraud committed by Sustaire,” and she “relied on the issuance
of the immigration papers and lived a productive life in the
United States at the cost of . . . [pursuing] a life in South
Korea.”
Estoppel requires the following:
(1) the Party to be estopped must know the facts; (2)
he must intend that his conduct shall be acted on or
must so act that the party asserting the estoppel has
a right to believe it is so intended; (3) the latter must
be ignorant of the true facts; and (4) he must rely on
the former’s conduct to his injury.
Watkins v. United States Army, 875 F.2d 699, 709 (9th Cir.
1989) (en banc) (quotation marks and citation omitted). Here,
Shin fails to qualify for estoppel because the party asserting
estoppel “must be ignorant of the true facts.” Id. at 709.
[6] The facts of the case demonstrate that Shin was not
ignorant of the scheme, but was rather a participant. Shin
entered the United States in June 1993 on a tourist visa. In
October 1994, she paid a runner $10,000 to obtain a green
card which adjusted her status to a lawful permanent resident.
The card allowed her to stay in the United States as the spouse
of a skilled worker or professional holding a baccalaureate
degree. At the time, however, Shin had no husband. She was
divorced. Furthermore, her husband, who had never been to
the United States, held only a high school diploma. These
facts make plain that Shin was not an innocent dupe, but
rather a party who sought to benefit from Sustaire’s scheme.
SHIN v. MUKASEY 14789
VI.
[7] Petitioner also requests remand to the BIA so she may
thereby file a second motion to reopen. A motion to reopen
must, among other things, state the new facts to be considered
at the reopened hearing and be supported by affidavits or
other evidentiary materials demonstrating prima facie eligibil-
ity for the relief sought. 8 C.F.R. § 1003.2(c)(1). The BIA
denied petitioner’s initial request for reopening to apply for
adjustment of status because she failed to submit a copy of an
approved I-140 Form (a petition to adjust her status to an
alien worker) or other documentation which would satisfy the
regulatory requirements under 8 C.F.R. § 1003.2(c)(1).
Although petitioner contends she has filed an I-140 Form, as
was the case before, she did not include any documentation
to show her application has been approved. Aliens who seek
to remand or reopen proceedings to pursue relief bear a
“heavy burden” of proving that, if proceedings were
reopened, the new evidence would likely change the result in
the case. Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA
1992). Petitioner has not met this burden because she has
failed to cure the defects that led to her motion to reopen
being denied in the first place.
[8] Further, aliens are entitled to file only one motion to
reopen. See 8 C.F.R. § 1003.2(c)(2) (providing that a party
may file only one motion to reopen proceedings and that
motion must be filed within 90 days after the date on which
a final administrative decision was filed). Petitioner is now
barred from filing a second motion to reopen. Id. Accord-
ingly, petitioner’s motion to remand to file a second motion
to reopen is denied.
DENIED.