KYONG HO SHIN v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KYONG HO SHIN; JIN HEE SHIN,  Nos. 06-73782
Petitioners, 06-73785
v.
 Agency Nos.
A047-055-519
ERIC H. HOLDER JR., Attorney
General, A047-415-708
Respondent.
 OPINION

On Petitions for Review of Orders
of the Board of Immigration Appeals

Argued and Submitted
March 12, 2010—San Francisco, California

Filed June 11, 2010

Before: J. Clifford Wallace, Susan P. Graber, and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;
Dissent by Judge Wallace

8637
8640 SHIN v. HOLDER
COUNSEL

John J. Marandas, Lake Oswego, Oregon, for the petitioners.

Alison Marie Igoe and Lindsay Williams, United States
Department of Justice, Civil Division/Office of Immigration
Litigation, for the respondent.

OPINION

McKEOWN, Circuit Judge:

We consider a non-citizen’s eligibility for a waiver of inad-
missibility under § 212(k) of the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1182(k) (“§ 212(k) waiver” or
“§ 212(k) relief”). Section 212(k) applies to “immigrants who
were unaware of their ineligibility for admission and who
could not have discovered the ineligibility by exercise of rea-
sonable diligence.” Senica v. INS, 16 F.3d 1013, 1014 (9th
Cir. 1994).

Kyong Ho Shin and Jin Hee Shin (“the Shins”), both citi-
zens and nationals of South Korea, are siblings who unknow-
ingly obtained lawful permanent residence through the
criminal conspiracy of a former officer of the Immigration
and Naturalization Service (“INS”), Leland Sustaire. In
removal proceedings, the Shins sought a § 212(k) waiver of
inadmissibility due to the invalid immigrant visas that were
procured for them by their mother through the Sustaire
scheme. The Board of Immigration Appeals (“BIA”) found
the Shins ineligible for § 212(k) relief because they never pos-
sessed valid immigrant visas and were not “otherwise admis-
sible” within the meaning of the statute.

We grant the petitions for review. Section 212(k) expressly
makes relief available to non-citizens, like the Shins, who are
 SHIN v. HOLDER 8641
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 Registra-
tion Cards, or “green cards,” for their clients. Essentially this
was a bribes for green cards scheme. Sustaire and his collabo-
rators were ultimately convicted for conspiracy to bribe a
public official, in violation of 18 U.S.C. § 371, after Sustaire
turned himself in to law enforcement authorities. See Chuyon
Yon Hong v. Mukasey, 518 F.3d 1030, 1032-33 (9th Cir.
2008) (detailing the background of the Sustaire scheme).

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 affili-
ated 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 initi-
1
The Shins’ visa category was “F24,” unmarried son or daughter of a
U.S. permanent resident.
2
Kyong Ho Shin is married to a Japanese national and has two children,
one of whom is a U.S. citizen. Jin Hee Shin is unmarried and has no chil-
dren; she works as a registered nurse.
8642 SHIN v. HOLDER
ated removal proceedings against Lee and the Shins in April
2003 upon linking them to the Sustaire scheme. The govern-
ment alleged that Sustaire had caused a false immigration
record to be created showing that Lee had adjusted to perma-
nent residence as the spouse of a Skilled Worker or Profes-
sional 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 immi-
grant visas at the time of their entries into the United States
under 8 U.S.C. §§ 1227(a)(1)(A), 1182(a)(7)(A)(i)(I).3 The
government also charged the Shins with seeking to procure an
immigration benefit through fraud or misrepresentation, but
ultimately withdrew that charge in immigration court. By all
account in the present record, the Shins were innocent
bystanders to Sustaire’s fraudulent arrangement.

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
3
Section 1227(a)(1)(A) provides that “[a]ny alien who at the time of
entry or adjustment of status was within one or more of the classes of
aliens inadmissible by the law existing at such time is deportable.” Section
1182(a)(7)(A)(i) provides that
any immigrant at the time of application for admission who is not
in possession of a valid unexpired immigrant visa, reentry permit,
border crossing identification card, or other valid entry document
required by this chapter, and a valid unexpired passport, or other
suitable travel document, or document of identity and nationality
if such document is required under the regulations issued by the
Attorney General under section 1181(a) of this title, is inadmissi-
ble.
 SHIN v. HOLDER 8643
departure. The BIA affirmed in an unpublished, single-
member decision.

ANALYSIS

We address two issues here: whether the BIA erred in find-
ing 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 Gonzales 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.” 8 U.S.C. § 1153(a)(2)(B). Thus, the validity of
their visas turns on whether Lee’s admission for permanent
residence was “lawful” in nature.

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 con-
strued the meaning of the phrase “lawfully admitted for per-
manent residence,” which is found in the definitional
provisions of the INA, 8 U.S.C. § 1101(a)(20) and its identi-
cal predecessor statute. Section 1101(a)(20) defines the phrase
as “the status of having been lawfully accorded the privilege
of residing permanently in the United States as an immigrant
in accordance with the immigration laws, such status not hav-
4
Because we reverse the BIA’s denial of the Shins’ § 212(k) petition,
we do not address the Shins’ arguments regarding due process and equita-
ble estoppel.
8644 SHIN v. HOLDER
ing changed.” 8 U.S.C. § 1101(a)(20) (2006); id.
§ 1101(a)(20) (1976 & 1982).

[1] 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 Koloama-
tangi, cancellation of removal under 8 U.S.C. § 1229b(a).
However, both Monet and Koloamatangi concealed their
inadmissibility at the time of their admission or adjustment to
permanent residence.5 We held that Monet had never been
“lawfully admitted” for permanent residence and was ineligi-
ble to seek relief. As we explained, “ ‘[a]dmission is not law-
ful if it is regular only in form. The term “lawfully” denotes
compliance with substantive legal requirements, not mere pro-
cedural regularity.’ ” Monet, 791 F.2d at 753 (quoting In re
Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983)). Similarly,
the BIA in Koloamatangi held that “the correct interpretation
of the term ‘lawfully admitted for permanent residence’ is that
an alien is deemed, ab initio, never to have obtained lawful
permanent resident status once his original ineligibility there-
for is determined in proceedings.” 23 I&N Dec. at 551;
accord Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir.
1973) (holding that a “mistaken admission conferred no sta-
tus, permanent resident or otherwise”).6 Under Monet and
Koloamatangi, Lee was never “lawfully admitted” for perma-
5
Monet had concealed a prior drug conviction at the time of admission,
Monet, 791 F.2d at 753, and Koloamatangi had knowingly obtained LPR
status through a bigamous marriage. Koloamatangi, 23 I&N Dec. at 549.
6
Other circuits have applied the same rule to determine eligibility for
various forms of relief from removal. See, e.g., Walker v. Holder, 589 F.3d
12, 19-21 (1st Cir. 2009) (derivative citizenship); Mejia-Orellana v. Gon-
zales, 502 F.3d 13, 15-17 (1st Cir. 2007) (per curiam) (cancellation of
removal); De La Rosa v. DHS, 489 F.3d 551, 554-55 (2d Cir. 2007) (for-
mer INA § 212(c) relief); Savoury v. U.S. Attorney Gen., 449 F.3d 1307,
1313-17 (11th Cir. 2006) (same); Arellano-Garcia v. Gonzales, 429 F.3d
1183, 1186-87 (8th Cir. 2005) (same).
 SHIN v. HOLDER 8645
nent residence and thus the Shins’ derivative visas were
improperly granted.

The Shins’ arguments that they were lawfully admitted for
permanent residence despite their mother’s status do not per-
suade 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 ‘law-
fully’ 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 resi-
dence 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.

[2] 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 8 C.F.R. § 1001.1(p) (providing that LPR status “termi-
nates upon entry of a final administrative order of exclusion,
deportation, removal, or rescission”). However, the issue of
8646 SHIN v. HOLDER
whether an LPR retains her status until the conclusion of
removal proceedings is distinct from whether she was “law-
fully admitted” in the first place so that she may seek relief
from removal or, as in this case, petition for an alien relative
visa. Because Lee was never “lawfully admitted” to perma-
nent residence, the Shins cannot validate their visas on the
basis that she was an LPR until ordered removed. Both Monet
and Koloamatangi reject the argument that the Shins raise
here. See Monet, 791 F.2d at 754-55; accord Savoury, 449
F.3d at 1314; Koloamatangi, 23 I&N Dec. at 550.

[3] 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 8 C.F.R. § 204.1(e) (delimiting jurisdiction over immedi-
ate relative and family-sponsored visa petitions); see also
Matter of Marcal Neto, 25 I&N Dec. 169, 174 (BIA 2010)
(explaining that IJs “may examine the underlying basis for a
visa petition when such a determination bears on the alien’s
admissibility”). Here, rather than “revoke” their visa petitions,
the IJ found the Shins removable because they failed to pres-
ent a valid immigrant visa at the time of their entry to the
United States. The IJ acted entirely within his authority.

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 inadmissibil-
ity under 8 U.S.C. § 1182(k), the “§ 212(k) waiver.” That stat-
ute provides as follows:

(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
 SHIN v. HOLDER 8647
may, if otherwise admissible, be admitted in the dis-
cretion of the Attorney General if the Attorney Gen-
eral is satisfied that inadmissibility was not known
to, and could not have been ascertained by the exer-
cise 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 admissi-
ble” within the meaning of the statute.7

The BIA’s conclusion does not comport with a plain read-
ing of the statute. As an initial matter, the government argues
7
At oral argument, the government additionally argued that § 212(k)
waivers are only available to inadmissible non-citizens and not deportable
ones. However, the Shins are inadmissible because they lacked a valid
immigrant visa at the time of their entry into the United States. See 8
U.S.C. § 1182(a)(7)(A)(i). Their inadmissibility on this basis is what
makes them deportable. See 8 U.S.C. § 1227(a)(1)(A). Accordingly, the
Shins seek § 212(k) relief to waive the predicate finding of inadmissibility.
We have previously reviewed requests for § 212(k) waivers of non-
citizens found deportable due to inadmissiblity. Senica, 16 F.3d at 1014.
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 8 C.F.R. § 242.8(a) (1996) expressly gave IJ the authority
to hear § 212(k) petitions in the context of deportation proceedings, as
contrasted with exclusion proceedings. See Matter of Aurelio, 19 I&N
Dec. 458, 461 (BIA 1987) (acknowledging the IJ’s jurisdiction). The cur-
rent regulations governing deportation proceedings commenced prior to
the effective date of the 1996 Act expressly preserve that authority. 8
C.F.R. § 1240.41(a). Section 1240.1(a)(1)(ii), which grants IJs authority to
hear § 212(k) petitions in removal proceedings in general, does not depart
from that approach.
8648 SHIN v. HOLDER
that we owe Chevron deference to the Board’s construction of
§ 1182(k). This is incorrect. An unpublished, nonprecedential
BIA decision is entitled to only Skidmore, rather than Chev-
ron, deference. Barrios v. Holder, 581 F.3d 849, 859 (9th Cir.
2009). Accordingly, the weight of the Board’s decision
depends on “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.” Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944). Because the BIA’s opinion is
conclusory and lacks any meaningful analysis, we owe it no
deference here.

[4] 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 § 1182(a)(5)(A) or
§ 1182(a)(7)(A)(i); (2) that the non-citizen be “in possession
of an immigrant visa;” and (3) that the non-citizen be “other-
wise admissible.” The Shins satisfy all three criteria. The
Shins meet the first requirement because they lacked valid
immigrant visas at the time of their entry into the United
States, making them inadmissible under § 1182(a)(7)(A)(i)—
which renders inadmissible an immigrant who does not have
a “valid unexpired immigrant visa” or “other valid entry
document”—and deportable under § 1227(a)(1)(A).

[5] 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 appli-
cant 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 incorpo-
rates, it is clear that § 212(k) extends to the visas that the
 SHIN v. HOLDER 8649
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 eligibil-
ity requirements for immigrant visas, including the visas
which the Shins were improperly granted. See 8 U.S.C.
§ 1153(a)(2)(B) (defining as “qualified immigrants” the “un-
married sons or unmarried daughters . . . of an alien lawfully
admitted for permanent residence”). Because the Shins were
never “qualified immigrants,” their visas were not issued in
compliance with § 1153. The Shins’ visa plainly falls within
the scope of § 212(k).

[6] 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 admissi-
ble.” The invalidity of the Shins’ visa goes to the first thresh-
old requirement, not the third. The BIA’s conclusion that the
Shins are not “otherwise admissible” because they lacked a
valid visa conflates these requirements. To treat the first
requirement—lack of a valid visa—as a disqualifying event
for the third requirement reads out the word “otherwise.” A
common-sense reading is that the individual must be admissi-
ble “other” than because of the invalid visa. Cf. Corona-
Mendez v. Holder, 593 F.3d 1143, 1147 (9th Cir. 2010) (hold-
ing that “otherwise admissible” prong of the fraud waiver at
8 U.S.C. § 1227(a)(1)(H) “requires that the court consider
whether the petitioner is inadmissible on more than one
ground at the time of the fraud the petitioner seeks waived”);
accord INS v. Yueh-Shaio Yang, 519 U.S. 26, 31-32 (1996)
(explaining that “otherwise admissible” means not excludable
on some ground other than the entry fraud).8
8
The dissent argues that the Shins’ invalid visas render them both inad-
missible for lacking proper documentation at entry and “otherwise inad-
missible” within the meaning of the § 212(k). But this is a form of double-
counting. The term “otherwise” in § 212(k) plainly contemplates a basis
8650 SHIN v. HOLDER
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 8 U.S.C. § 1101(a)(16), which refers to “an immi-
grant visa required by this chapter and properly issued by a
consular officer at his office outside of the United States to an
eligible immigrant under the provisions of this chapter.” Id.
Because Lee’s LPR status was void ab initio, the government
argues, the visas that the Shins obtained derivatively were not
“properly issued” to them. We are not persuaded by this argu-
ment. The substantive flaw in the Shins’ visas is a precondi-
tion, rather than a bar, to their seeking § 212(k) relief. In
addition, the Shins’ immigrant visas were issued according to
the proper procedures: they were not procured by fraud, came
through the appropriate consular authorities, and were genu-
ine documents.

The government argues further that the § 212(k) waiver is
never available “to cure fraud, or to legitimize an ‘applica-
tion’ 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.

for inadmissibility apart from or in addition to inadmissibility for lacking
a valid visa at entry.
As a counter-example, the Shins might not have been “otherwise admis-
sible” had the government prevailed on both the original charges of
deportability: that is, the lack of a valid immigrant visa and the attempt
to procure entry or an immigration benefit through fraud and misrepresen-
tation. The Attorney General can waive fraud or misrepresentation only if
the applicant is the spouse, son, or daughter of a U.S. citizen or an LPR
which, given the invalidity of Lee’s LPR status, would not have been the
case here. See 8 U.S.C. §§ 1182(i)(1), 1227(a)(1)(H). In this scenario, the
Shins would therefore be ineligible for a waiver as they would be addition-
ally inadmissible based on fraud. See Singh v. Gonzales, 451 F.3d 400,
402-03 (6th Cir. 2006).
 SHIN v. HOLDER 8651
As an initial matter, there are no allegations that the Shins
committed fraud. More importantly, the government’s posi-
tion 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 “inadmis-
sibility” based on invalid documentation in general. Id.
§ 1182(k).

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 immi-
grant visa and attempted to enter the country as the unmarried
daughter of an LPR. The INS deferred her entry because it
found evidence suggesting that she was married. The IJ and
BIA eventually ordered her exclusion on the ground that she
had misrepresented her marital status. The Eighth Circuit ini-
tially remanded based on procedural deficiencies in Mayo’s
exclusion proceedings and, on remand, the IJ granted Mayo
§ 212(k) relief because Mayo believed she was unmarried at
the time of her entry. Id. at 869-70. The Eighth Circuit
affirmed on appeal. Id. at 873-74.

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).
8652 SHIN v. HOLDER
[7] 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. Compli-
ance with the statutory requirements renders the Shins eligible
for a waiver of inadmissibility.

CONCLUSION

[8] 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, 8
U.S.C. § 1182(k). I favor remanding to the Board of Immigra-
tion Appeals (Board), so that the agency entrusted with
administration of our immigration laws may first address the
question of statutory interpretation presented here.

I.

I agree with the result reached in section one of the major-
ity 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
 SHIN v. HOLDER 8653
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). 8
U.S.C. § 1182(k). Section 212(k) vests the Attorney General
with authority to admit certain “otherwise inadmissible aliens
who possess immigrant visas,” who did not know of, and
could not have “ascertained by the exercise of reasonable dili-
gence” the basis for his or her inadmissibility. Eligibility for
discretionary relief under section 212(k) is extended only to
those aliens who are (1) inadmissible under 8 U.S.C.
§§ 1182(a)(5)(A) & (7)(A)(I); (2) “in possession of an immi-
grant visa;” and (3) “otherwise admissible.”

The Shins meet the first prerequisite set forth in section
212(k): they were deemed inadmissible under 8 U.S.C.
§ 1182(a)(7)(A)(I). But the Shins have not demonstrated that
they meet the second and third preconditions. The Shins were
not actually “in possession of [ ] immigrant visa[s]” because,
as we have already determined, their visas were void ab initio.
In addition, the Shins do not appear to be “otherwise admissi-
ble.” Their visas were derivative of their mother’s
fraudulently-obtained LPR status. As her status provides no
basis for the validation of their visas, the Shins have no basis
for admission. The Shins were not “substantively qualified”
for the visas that they received and thus not “otherwise admis-
sible.”

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 require-
8654 SHIN v. HOLDER
ment. 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 dif-
ficult task of providing a discretionary avenue for the admissi-
bility 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. Gor-
don, et al., Immigration Law and Procedure § 63.12
(Ҥ 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 nonciti-
zen turning twenty-one years old.” C. Gordon, et al., Immi-
gration Law and Procedure § 63.12 A provision similar to
 SHIN v. HOLDER 8655
section 212(k) existed in earlier versions of the act, but was
inadvertently dropped when the act was amended in 1965.
H.R. Rep. 97-264, 34, reprinted in 1981 U.S.C.C.A.N. 2577,
2603.

The majority reasons that to consider the Shins’ lack of
valid visas as to both the first relevant precondition to eligibil-
ity for a 212(k) waiver — inadmissibility pursuant to
1182(a)(7)(A)(I) — and the second relevant precondition —
that the Shins be “otherwise inadmissible”— results in imper-
missible “double counting.” Instead, the majority reasons,
application of 212(k) waives the relevant basis for inadmissi-
bility, 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, with-
out 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 inad-
missibility that section 212(k) was intended to remedy, and do
not agree that the majority opinion represents the plain lan-
8656 SHIN v. HOLDER
guage of the statute. Indeed, the majority’s opinion is incon-
sistent 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 pre-
cedent. 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 administra-
tive] judgment in a particular case will depend upon the thor-
oughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronounce-
ments, 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 interpre-
tations of the INA not resolved by prior precedential decisions
only to the extent of its thoroughness and overall persuasive-
ness”); 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
admissible” because their mother received her status as the
spouse of a skilled worker, but “the factual basis for the grant
of the visa to the respondents’ mother never existed.” Thus,
with their mother’s status void, the Shins were never “other-
wise admissible.” The majority may prefer a different inter-
pretation, but that is not the Skidmore test. The Board’s
 SHIN v. HOLDER 8657
interpretation, in my view, is persuasive and consistent with
the language of the statute. That is all that is required.

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, Chev-
ron, 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 def-
erence 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 con-
flict between ourselves and the agency, and between our-
selves 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
8658 SHIN v. HOLDER
that statutes place primarily in agency hands.” 537 U.S. at 16
(per curiam); see also Gonzales v. Thomas, 547 U.S. 183
(2006) (per curiam). Since Orlando Ventura, we have endeav-
ored to distinguish “between circumstances in which remand
is necessary . . . and circumstances in which remand is unnec-
essary 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 guid-
ance 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 prece-
dential decision defining what constitutes a crime of child
abuse [as used in the INA] and apply that definition to peti-
tioner’s conviction.” 466 F.3d 781, 782 (9th Cir. 2006). We
concluded that it would be “prudent to allow the BIA in the
first instance to settle upon a definition of child abuse in a
precedential opinion.” Id. at 783. Similarly, in Chen v.
Mukasey, we remanded a petition to the Board for interpreta-
tion of INA section 1158(d)(6), respecting frivolous applica-
tions for asylum, in the first instance “in light of a recent
decision in the Second Circuit.” 527 F.3d 935, 936 (9th Cir.
2008); see also Kawashima, 593 F.3d at 988 (remanding to
the Board to consider types of evidence that may be consid-
ered pursuant to Nijhawan v. Holder, 129 S. Ct. 2294 (2009)).

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 Nat’l Cable, 545 U.S. at 980. In light
 SHIN v. HOLDER 8659
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 deci-
sion 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.