FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANG YOON KIM, a.k.a. Sangyoon No. 06-73415
Kim; SANGHO KIM; SANGWON KIM,
Petitioners, Agency Nos.
v. A072-343-662
A072-343-663
ERIC H. HOLDER JR., Attorney A072-343-664
General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 12, 2010—San Francisco, California
Filed May 3, 2010
Before: J. Clifford Wallace, Susan P. Graber, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
6605
KIM v. HOLDER 6607
COUNSEL
Deborah Ann Dyson, Goswami, Strand & Seaborn, San Fran-
cisco, California, for the petitioners.
Lindsay Elizabeth Williams, United States Department of Jus-
tice, Civil Division/Office of Immigration Litigation, Wash-
ington, D.C., for the respondent.
OPINION
McKEOWN, Circuit Judge:
Sang Yoon Kim, Sang Ho Kim, and Sang Won Kim (“the
Kims”) petition for review of the decision of the Board of
Immigration Appeals (“BIA”) ordering their removal. The
Kims belong to a group of hundreds of persons of Korean
descent who received fraudulent green cards through the
criminal conspiracy of a former officer of the Immigration
and Naturalization Service (“INS”), Leland Sustaire. Because
6608 KIM v. HOLDER
the government proved that the Kims are removable, and
because the Kims lack standing to raise their equal protection
challenge to the waiver of admissibility provided at 8 U.S.C.
§ 1182(k), we deny the petition for review in part and dismiss
it in part. In denying the petition, we do not countenance the
immigration officer’s conduct and we are cognizant of the
upheaval caused by this scam. Nonetheless, it falls to the
executive branch rather than the courts to address the fallout.
BACKGROUND
Between 1986 to 1994, Sustaire conspired with several
middlemen in the Korean-American and overseas Korean
community, who paid bribes to Sustaire to obtain fraudulent
Form I-551 Alien Registration Cards, or “green cards,” for
their clients. Sustaire and his collaborators 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 back-
ground of the Sustaire scheme). The Kims, all natives and cit-
izens of South Korea, are three brothers who allegedly
became lawful permanent residents (“LPRs”) through the
Sustaire scheme as minor dependents of their mother, Nam
Yeol Kim, in 1993.1
The government initiated removal proceedings against the
Kims in June 2003. The government charged the Kims as
deportable under 8 U.S.C. § 1227(a)(1)(A) for lacking a valid
entry document—i.e., a valid green card—at the time of their
respective re-entries into the United States from trips abroad.
See 8 U.S.C. § 1182(a)(7)(A)(i)(I).2 The IJ held that the Kims
1
Upon her request, the BIA dismissed Nam Yeol Kim’s appeal of her
removal order on December 28, 2005.
2
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
KIM v. HOLDER 6609
were ineligible for waivers of inadmissibility under § 212(k)
of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(k), ordered them removed, and granted them voluntary
departure. The BIA affirmed.
ANALYSIS
In their petition for review, the Kims argue that the govern-
ment failed to meet its burden of proving removability and, in
the alternative, that the exclusion of returning permanent resi-
dents from eligibility for § 212(k) waivers violates equal pro-
tection as guaranteed by the Due Process Clause of the Fifth
Amendment. 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 government must prove the Kims’ removability by
clear and convincing evidence. Hernandez-Guadarrama v.
Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005). Reviewing the
BIA’s findings for substantial evidence, we conclude that the
government met its burden.
[1] Because the government was unable to produce the
Kims’ alien files containing their applications for adjustment
of status, the government presented a constellation of circum-
stantial evidence linking the Kims to the Sustaire scheme. To
begin, the Kims’ name and alien numbers appeared on a list
. . . 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 iden-
tity and nationality if such document is required under the regula-
tions issued by the Attorney General under section 1181(a) of this
title . . . is inadmissible.
6610 KIM v. HOLDER
that Sustaire submitted to law enforcement authorities identi-
fying the non-citizens who obtained LPR status through the
conspiracy. Sustaire prepared this list in late 1994 or early
1995—after the INS Office of the Inspector General had
begun investigating him—with the intent of using the list to
negotiate a deal with the government.
[2] Although the Kims attack the reliability of the list, a
follow-up investigation by U.S. Immigration and Customs
Enforcement (“ICE”) confirmed the Kims’ connection to the
Sustaire scheme. In her sworn testimony to ICE, the Kims’
mother, Nam Yeol Kim, admitted that she procured her LPR
status through payment of $30,000 to one of Sustaire’s co-
conspirators, Cherie Choe. As the government explained, Ms.
Kim obtained the green cards after submitting a few personal
documents—namely, her family registry, resume, and medical
records—and undergoing a sham interview with Sustaire at
Choe’s house. Ms. Kim purportedly adjusted her status to per-
manent residency as the spouse of a priority worker—
meaning that her husband, the Kims’ father, was classified as
an Alien with Extraordinary Ability (such as a Nobel Prize
recipient), an Outstanding Professor or Researcher, or a Mul-
tinational Executive or Manager. See 8 U.S.C. § 1153(b)(1).
However, her husband did not fit any of these descriptions
and, in fact, never had LPR status within the United States.
Consequently, Ms. Kim’s husband provided no basis to confer
LPR status on her, and the Kims’ green cards were invalid by
extension. By these facts, the government proved the Kims’
removability by clear and convincing evidence, and the BIA’s
removability determination was accordingly supported by
substantial evidence.
II. SECTION 212(K) WAIVER AND THE EQUAL PROTECTION
CHALLENGE
The Kims argue in the alternative that they are entitled to
a waiver of inadmissibility under 8 U.S.C. § 1182(k). That
statute provides:
KIM v. HOLDER 6611
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
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.
[3] The BIA held that the Kims were ineligible for
§ 212(k) waivers because they failed to show that they were
“currently in possession of an immigrant visa” or that they
“ever received or were, in fact, qualified for an immigrant
visa.” The Kims counter that, as returning LPRs, they would
not be issued immigrant visas for their re-entry into the
United States from their trips abroad as they could simply use
their green cards as entry documents. In other words, anyone
with a green card has no need for a re-entry visa. In their
view, the BIA’s refusal to consider their green cards as the
functional equivalent of an “immigrant visa” for the purposes
of 8 U.S.C. § 1182(k) violates equal protection because it is
based on an irrational distinction between arriving aliens, or
applicants for admission, see 8 U.S.C. § 1225(a)(1); 8 C.F.R.
§ 1.1(q), and returning resident aliens.
[4] We dismiss the Kims’ equal protection challenge for
lack of standing. The Kims cannot pursue this claim because
they do not belong to the class of returning LPRs who are
allegedly similarly situated to applicants for admission.
Because the Kims were improperly granted their green cards,
6612 KIM v. HOLDER
their LPR status was void ab initio. See Monet v. INS, 791
F.2d 752, 753-54 (9th Cir. 1986); Matter of Koloamatangi, 23
I&N Dec. 548, 551 (BIA 2003). Their so-called green cards
conferred no rights. The Kims accordingly were not charged
with removability as returning LPRs, but rather were charged
and found removable as non-citizens lacking a valid entry
document at the time of their admission from trips abroad. See
8 U.S.C. § 1101(a)(13)(C) (providing that “[a]n alien lawfully
admitted for permanent residence in the United States shall
not be regarded as seeking an admission into the United
States” except in enumerated circumstances). Because the
Kims do not belong to the class of LPRs that § 212(k) pur-
portedly discriminates against, they cannot show injury from
the alleged discrimination, much less any effective redress
that this court could afford them. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
The Kims also argue that the term “immigrant visa” as used
in 8 U.S.C. § 1182(k) can be read to encompass green cards.
However, we do not reach this issue because the Kims did not
have valid green cards at the time of entry and therefore lack
standing to pursue this claim as well. See id.
The government has proved the Kims’ removability, so the
petition for review is denied in part. Because the Kims lack
standing to raise their equal protection claim and their claim
that their green cards provide a predicate for a § 212(k)
waiver of inadmissibility, the petition for review is dismissed
in part.
DENIED in part; DISMISSED in part.