FILED
NOT FOR PUBLICATION JUL 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HYUN SIK KIM, aka Hyunsik Kim, No. 06-72666
Petitioner, Agency No. A072-971-921
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2013**
San Francisco, California
Before: SCHROEDER, RIPPLE***, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
Hyun Sik Kim, a native of South Korea, petitions for review of an order of
the Board of Immigration Appeals (“BIA”). An immigration judge (“IJ”) ordered
Mr. Kim’s removal upon concluding that Mr. Kim was among the many aliens
who received a green card as part of a bribery scheme conducted by Leland
Sustaire, a former employee of the Immigration and Naturalization Service. The
BIA dismissed Mr. Kim’s appeal. Mr. Kim now contends that the IJ erred in
admitting three pieces of evidence: Sustaire’s deposition transcript, Sustaire’s list
of alien numbers linked to invalid green cards and Special Agent Lesley Brown’s
testimony. He also maintains that the evidence was not sufficient to show that his
green card was invalid, that the IJ erred in not considering whether he was the child
of a skilled worker and, finally, that the Government should be equitably estopped
from arguing that his green card was invalid. We have jurisdiction under 8 U.S.C.
§ 1252 and deny the petition for review.
We review the decision of the BIA, but when “the BIA does not
independently review the record, or where the BIA relies upon the IJ’s opinion as a
statement of reasons, we look to the IJ’s oral decision as a guide to what lay behind
the BIA’s conclusion.” Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir. 2000). We
review questions of law de novo and the IJ’s factual findings for clear error.
Rodriguez v. Holder, 683 F.3d 1164, 1169-70 (9th Cir. 2012). Here, the BIA
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agreed with the IJ on the evidentiary issues and applied its own reasoning on the
alternate relief and equitable estoppel claims.
The BIA was correct that Mr. Kim’s objections to the evidence were without
merit. The Federal Rules of Evidence do not apply in immigration proceedings.
“Rather, ‘[t]he sole test for admission of evidence is whether the evidence is
probative and its admission is fundamentally fair.’” Sanchez v. Holder, 704 F.3d
1107, 1109 (9th Cir. 2012) (alteration in original) (quoting Espinoza v. INS, 45
F.3d 308, 310 (9th Cir. 1995)). Sustaire’s deposition transcript was from a two-
day deposition before the IJ, during which counsel for numerous petitioners,
including Mr. Kim, were allowed to cross-examine Sustaire “with an eye of course
to preserving the interest of the individual clients.” A.R. at 209. Counsel for Mr.
Kim did not object to the admission of this transcript during his hearing, but even
if he had, we already have considered and upheld the admissibility of Sustaire’s
deposition under similar circumstances in Young Sun Shin v. Mukasey, 547 F.3d
1019, 1024 (9th Cir. 2008).
Mr. Kim’s argument that Sustaire’s list was inadmissible because it was
unreliable hearsay is also without merit. Hearsay may be admitted in immigration
proceedings “if it is probative and its admission is fundamentally fair.” Gu v.
Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006). Sustaire’s credibility and the
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reliability of his list go to the weight of the evidence, not its admissibility.
We also cannot accept Mr. Kim’s argument that Special Agent Brown’s
testimony was inadmissible because she does not qualify, under the Federal Rules
of Evidence, as an expert on the validity of green card applications. As we already
have stated, the Federal Rules do not apply to immigration hearings, Sanchez, 704
F.3d at 1109, and Mr. Kim does not argue that the admission violated fundamental
fairness. In addition, Special Agent Brown was not asked to testify as to the
validity of Mr. Kim’s green card application. She merely explained the meaning of
classification codes appearing on immigration documents and the steps the
Government took when investigating Sustaire’s fraud.
The evidence was sufficient to find Mr. Kim removable. Mr. Kim’s alien
registration number appeared on Sustaire’s list of invalid green cards and the
Government’s investigation showed that Mr. Kim’s mother did not file a proper
application to obtain a green card. No other evidence of record suggests that his
card was valid.
Mr. Kim never asked the IJ to consider alternate forms of relief and took no
action when the IJ gave him ninety days to prepare such applications. We agree
with the BIA that the IJ was not required to consider sua sponte whether Mr. Kim
could have qualified for a green card as a child of a skilled worker.
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Finally, we do not believe that the doctrine of equitable estoppel applies to
the circumstances before us. Unlike some cases linked to Sustaire’s bribery
scheme, there is no evidence that Mr. Kim was a knowing participant in the fraud.
However, “it is well settled that the government is not bound by the unauthorized
acts of its agents.” Watkins v. United States Army, 875 F.2d 699, 707 (9th Cir.
1989).
The petition for review is DENIED.
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