DAVID K. S.

KIM
LAW OFFICE OF DAVID K. S. KIM, P.C.
154-08 NORTHERN BLVD, SUITE 2G
FLUSHING, NY 11354
Name: HONG, SUNG MIN
U.S. Department of Justice
Executive Ofice for Immigration Review
Board oflmmigration Appeals
Offce of the Chief Clerk
5107 ltesbur Pike. Suite 1000
Fals Church. Virginia 20530
OHS/ICE OFFICE OF CHIEF COUNSEL NYC
26 FEDERAL PLAZA, ROOM 1130
NEW YORK, NY 10278
A 097-143-991
Date of this Notice: 4/29/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Sincerely,
Donna Carr
Chief Clerk
Cite as: Sung Min Hong, A097 143 991 (BIA Apr. 29, 2014)
For more unpublished BIA decisions, visit www.irac.net/unpublished
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U.S. Department of Justce
Executive Ofce fr Immigation Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: A097 143 991-New York, NY
In re: SUNG MIN HONG
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: David K. S. K, Esquire
CHARGE:
Notice: Sec. 237(a)(l )(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] -
In the United States in violation of law
APPLICATION: Adjustment of status
APR 2 9 2014
The respondent, a native and citizen of South Korea, has timely filed an appeal of an
Immigraton Judge's decision dated July 31, 2012. The Immigration Judge found the respondent
removable, as charged, denied his application for adjustment of status under sectio 245 of the
Immigration and Nationality Act (the "Act"), 8 U.S.C. 1255, and ordered the respondent
removed. On appeal, the respondent contests the denial of adjustent of status. The record will
be remanded to the Immigration Judge for fuher proceedings and fr the enty of a new
decision.
The following facts of this case are not in dispute. On March 25, 2003, the respondent fled
both a Form I-140, Immigrant Petition for Alien Worker, and a form I-485, Application to
Register Permanent Residence or Adjust Status. The I-140 was fled by Empire Kosher Poultry,
Inc., and the person who prepared the pettion was a representative of EBI, Inc. (Exb. 2, Tab F at
21). On November 25, 2003, a second I-140 was fled on the respondent's behalf by Royal
Harvest Foods, Inc., and the preparer was the same employee at EBI, Inc. (Exh. 2, Tab Fat 20).
This second I-140 was approved on March 13, 2004. However, the respondent's I-485
application based on this second I-140, filed by the respondent on February 27, 2004, was denied
by the U.S. Citizenship and Immigation Services ("USCIS") on September 30, 2009, and then
apparently was reopened and again denied on August 2, 2010, based on a fnding that the second,
approved I-140 was faudulent. The denial letters observed that the agency that had processed
the I-140, EBI, Inc., had pied guilty to immigration faud, and its director) who had prepared the
I-140, had agreed to pay a large civil penaty (Exbs. 3A, 3B).
On appeal, the respondent argues that he is eligible to adjust his status pursuant to the
provisions of section 245(k) of the Act. Under this section, an alien who is eligible to receive an
immigrant visa under sections 203(b)(l), (2), or (3) may adjust status pursuant to 245(a) of the
Act, notwithstanding the provisions of sections 245(c)(2), (c)(7), and (c)(8), if, among other
things: (1) the alien, on the date of filing an application fr adjustment of status, if, present in the
United States pursuant to a lawfl admission; and (2) the alien, subsequent to such lawfl
admissionhas not, fr an aggegate period exceeding 180 days, failed to maintain, C'ntinuously,
Cite as: Sung Min Hong, A097 143 991 (BIA Apr. 29, 2014)
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A097 143 991
a lawl status. See sections 245(k)(l ), (2) of the Act. I this case, while the respondent was in
valid nonimmigant status at the time of his first fling of an adjustent application on March 25)
2003, he may not have been cont
i
nuously maintaining a lawfl status at the tme he fled t he
second application t adjust staJus on February 27, 2004. See 8 C.F.R. 1245.l(b)(9); see also
section 245( c )(7) of the Act At that time he may have been i n unlawful statu for an aggregate
period exceeding 180 days, as his B-2 nonimmigrant visa status had expired on June 30, 2003
(Exh. 1). While the respondent's fst adjustment application was pending during at least part of
this period, the users bas determined that "if [an] alien fles a second application fr adjustment
of status, the period afer which the nonimmigrant status expired and during which the frst
adjustment of status application was pending counts against the 180-day period when
considering eligibilit for relief under 245(k) in the adjudication of the second adjustment of
status application." See Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic
Operations, USeIS, HQDOMO 70/23.1-P AD06-07, Applicabilit of Section 245() to Certain
Employment-Based Acustment of Status Applications Filed Under Section 245(a) of the
Immigration and Nationalit Act (July 14, 2008). The respondent does not dispute the foregoing
Memorandum's legal interpretation. Therefore, unless the respondent's approved, second I-140
can be determined to relate to his frst rather than his second adjustment application, his period in
unlawfl status apparently will have exceeded the permitted 180 days. While the Immigaton
Judge appears to have fund the respondent to be ineligible for adjustment under section 245(k)
on the basis that the second 1-140, despite having been approved, was not bona fde and in fct
was fivolous, we do not at this time reach his determination on the merits of the I-140, or the
respondent's related appellate arguments, as we conclude that the threshold question of whether
te approved 1-140 relates to the first or second adjustment application should fust be resolved.
Oo appeal, the respondent asserts tat the "unlawfl status1' problem discussed above can
be "cured" by a process called "interfng" (or "conversion"). Under this theory, where there are
multiple I-i 40 petitions fled fr a single aien, the originally filed I-140 and I-485 are still
pending, and a subsequent I-140 ha been approved, the subsequentlyapproved I-140 may be
"interfled" back with the frst I-485 adjustment application (Respondent's Appeal Bref at 1-2;
I.J. at 11-12). See USeIS Adjudicator's Field Manual section 23.2(1). We fnd that a remand is
required fr further fact-finding by the Imigration Judge as to the status of the first I-140 (and
the associated 1-485 application). The Imigration Judge appears to have assumed, without
explicitly deciding, that the DHS wa correct in its assertion that the first Form I-140, fled on
the respondent's behalf by Empire Kosher Poultry, Inc., and the associated I-485, both fed on
March 25, 2003, were denied by the government on December 2, 2003 (I.J. at 6, 9). However,
this issue appears to be very much in dispute. On appeal, as befre the Immigration Judge, the
respondent argues that tis I-140 and I-485 have not been denied, and in fact remain pending. In
support of this assertion, he states that the USCIS website shows that a decision has not yet been
made concerg the I-140 and I-485 fled on March 25, 2003 (Respondent's Appeal Brief at 3;
Exh. 2, Tab G). We agree with the respondent's assertion on appea that the record contains no
"afrmative evidence" showing that the original 1-140 was in fact denied, such as a denial letter
from users. 1 Notably, the issue of whether or not this I-140 was in fct denied appears to be
central to the ability of the respondent to use the interf
i
ling process.
1 We acknowledge that the initial September 30, 2009, letter fom USeIS denying the
respondent's second application to adjust status makes brief reference to the asserted fact that "a
( ... cnt'd)
2
Cite as: Sung Min Hong, A097 143 991 (BIA Apr. 29, 2014)
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A097 143 991
The Immigration Judge fund that interfling was not permitted in this case based on his
apparent assumption that the OHS was correct in its claim that the original I-140 had been denied,
and his "interpretation that if in fact te frst I-140 is denied, then it will not in fact be adequate
as a basis for the
i
nterfling process" with regard to the second I-140 (I.J. at 7-10). Accordingly,
we w remand th.is matter to the Imigration Judge to permit h to make an explicit fnding as
to whether the frst I-140 filed on the responaent's behaf (and the associated adjustent
application) was in fact denied, and, i so, to indicate what evidence he reviewed to make such
a fnding, as well as the date of any denial. Further, the Inunigration Judge should conduct
fact-finding to identif the date of any "conversion request" made by the respondent, and to
determine whether the respondent maintained conversion eligibility up ut that date. See
USClS Adjudicator's Field Manual section 23.2(1)(2)(D) ("J order to convert an adjustment
application fom one basis to another, there must be no break in the continuity of the underlying
eligibility for adjustment prior to the submission of the conversion request. I the applicant does
not maintain eligibility up until the point the conversion request is made, conversion may not be
granted."). See also Matter of S-H-, 23 I&N Dec. 462, 466 (BIA 2002) (observing that in order
to allow for meaningfl Board review of Immigration Judges' decisions, ".t is more important
tha ever for Immigration Judges to include in their decisions clear and complete findings of fact
that are supported by the record and are in compliance wjth controlling law"). On appeal, the
parties should be permitted to offer additional evidence and argmnents on these issues.
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge fr frther proceedings
consistent with the foregoing opinion and for the entry of a new decision.
previous I-140 fled on your behalf on April 26, 2001 [sic] . . . w denied on December 2, 2003"
(Exh. 3A). We are doubtfl that this brief reference, contained in a denial letter for a diferent
application, is sufcient to establish that the I-140 filed by Empire Kosher Poultry, Inc. was in
fact denied, especially since tis particular denial letter apparently was superseded by a diferent
letter in 2010. I any case, given that the Board is generally precluded fom fact-finding on
appeal, and that the Immigraton Judge did not rely on the foregoing statement in concluding that
the frst I-140 had been denied, we conclude that a remand to the Immigration Judge to address
tis and other evidence related to the issue in the frst instance is required. See Matter of
Fedorenko, 19 I&N Dec. 57, 74 (BI 1984) (noting that "[t]he Board is an appellate body whose
fnction is to review, not create, a record"); 8 C.F.R. i003.l(d)(3)(iv) (limiting the Board's
fact-fnding authority and stating that the Board may remand the proceeding to the Immigration
Judge where frther fact-finding is needed).
3
,
Cite as: Sung Min Hong, A097 143 991 (BIA Apr. 29, 2014)
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