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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10982
Non-Argument Calendar
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Agency No. A097-931-644
HYANG SOON CHO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(August 26, 2014)
Before WILSON, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
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Hyang Soon Cho, a native and citizen of South Korea, petitions for review
of the order of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) order granting the Department of Homeland Security’s (DHS) motion
to pretermit her application for a waiver under section 237(a)(1)(H) of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(1)(H). In her petition,
Cho argues that the BIA erred in determining that she was ineligible for the waiver
because her husband and children are not qualifying relatives under INA §
237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H) since they were not “lawfully admitted for
permanent residence.”
Cho was originally admitted to the United States in 2003 on a B-2 non-
immigrant visa. She hired an immigration attorney who substituted her name for
another alien on an already approved application for an alien employment
certification. She then filed an I-140 visa petition and an I-485 application for
adjustment of status. Based on these documents, Cho’s status was adjusted to
lawful permanent resident (LPR) in 2005. Five years later, she was convicted of
visa fraud in federal court, and subsequently placed in removal proceedings.
At a master calendar hearing, Cho stipulated that her immigrant visa was
procured by fraud but stated that the fraud was attributable only to her lawyer, not
herself. In any event, Cho does not dispute that she is removable based on the
charge that she procured her visa through fraud. She challenges whether she was
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eligible for a waiver under INA § 237(a)(1)(H) based on her lack of a qualifying
relative. The BIA held that Cho is ineligible for a waiver of deportability under §
237(a)(1)(H) of the INA, because her putative qualifying relatives—her spouse and
children—were not “lawfully admitted for permanent residence” as their status was
derivative of her own permanent resident status, which was void from its inception
because it was procured through fraud. According to the BIA, derivative
beneficiaries may not be lawfully admitted for permanent residence until the
“principal alien” has been lawfully admitted.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). Here, the BIA disagreed in part with the IJ’s
opinion and did not expressly adopt it, so we will review only the BIA’s decision.
We review the BIA’s legal determinations de novo. Mejia v. U.S. Att’y Gen., 498
F.3d 1253, 1256 (11th Cir. 2007). We defer to the BIA’s reasonable interpretation
of ambiguous terms contained in the INA pursuant to Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984). Poveda v.
U.S. Att’y Gen., 692 F.3d 1168, 1176 (11th Cir. 2012).
An unauthorized immigrant who procures a visa or admission into the
United States through “fraud or willfully misrepresenting a material fact” is
inadmissible. INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i). This ground for
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inadmissibility may be waived for an immigrant who, among other requirements,
“is the spouse, parent, son, or daughter of a citizen of the United States or of an
alien lawfully admitted to the United States for permanent residence.” INA §
237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H).
The INA defines the phrase “lawfully admitted for permanent residence” to
mean “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 having changed.” INA § 101(a)(20), 8 U.S.C.
§ 1101(a)(20). Immigration regulations contain the same definition and add the
sentence: “Such status terminates upon entry of a final administrative order of
exclusion, deportation, or removal.” 8 C.F.R. § 1.2.
The BIA has interpreted this phrase to mean that an immigrant who acquired
permanent resident status through fraud or misrepresentation has never been
“lawfully admitted for permanent residence.” In re Koloamantangi, 23 I. & N.
Dec. 548, 549–50 (BIA 2003). The BIA has therefore 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 therefor[e] is determined in proceedings.” Id. at 551.
We have deferred to the BIA’s interpretation of that term. Savoury v. U.S. Att’y
Gen., 449 F.3d 1307, 1313–17 (11th Cir. 2006) (holding that an immigrant whose
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status was readjusted to permanent resident due to a mistake by the former
Immigration and Naturalization Service (“INS”) had not been “lawfully admitted
for permanent residence” and was thus properly deemed inadmissible). Therefore,
we held that an immigrant’s permanent resident status was void from inception
because he was never “lawfully admitted for permanent residence.” Id.
We have not previously considered whether the rationale from
Koloamantangi and Savoury applies to invalidate the immigration status of family
members, but the Ninth Circuit has held that it does. See Kyong Ho Shin v.
Holder, 607 F.3d 1213, 1216–18 (9th Cir. 2010). In that case, two siblings
obtained their LPR status derivatively from their mother, who received her LPR
status through a criminal scheme run by a former INS officer. Id. at 1214–15.
Under these circumstances, the validity of the siblings’ visas turned on “whether
[the mother’s] admission for permanent residence was ‘lawful’ in nature.” Id. at
1216. The Ninth Circuit determined that the mother was never “lawfully admitted”
and her children, therefore, “cannot validate their visas on the basis that she was an
LPR until ordered removed.” Id. at 1217–18. In discussing derivative
beneficiaries, the BIA has written “that the right of a derivative beneficiary to
permanent resident status is wholly dependent upon that of the principal alien and
may not be exercised unless and until the principal alien becomes a permanent
resident.” Matter of Naulu, 19 I. & N. Dec. 351, 353 (BIA 1986).
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We find that the BIA correctly determined that Cho was ineligible for a
waiver under INA § 237(a)(1)(H) because her husband and children were not
“lawfully admitted for permanent residence.” Their status as lawful permanent
residents was derivative of Cho’s own status, which was void from its inception
because it was procured through fraud. See Koloamantangi, 23 I. & N. Dec. at
549–51; Savoury, 449 F.3d at 1313–17. Accordingly, the BIA correctly dismissed
Cho’s appeal, and we deny her petition.
PETITION DENIED.
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