The panel unanimously concludes this case is suitable for decision *

without oral argument. See Fed. R. App. P. 34(a)(2).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HYUK JOON LIM,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 09-70042

Agency No.

A072-951-683

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 6, 2013*

Pasadena, California

Filed March 26, 2013

Before: Diarmuid F. O’Scannlain, Stephen S. Trott,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Trott
2 LIM V. HOLDER

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Immigration

The panel denied Hyuk Joon Lim’s petition for review of

the Board of Immigration Appeals’ decision finding him

ineligible for cancellation of removal for failure to establish

the requisite continuous physical presence in the United

States.

The panel held that Lim did not qualify for the continuous

presence exception available to aliens who served in active

duty in the United States Armed Forces, under 8 U.S.C.

§ 1229b(d)(3), because he was absent from this country while

completing mandatory military service in the South Korean

armed forces. The panel held that Congress had a rational

basis for limiting the exception to aliens serving in our

military.

COUNSEL

Michael S. Cabrera, Law Offices of Michael S. Cabrera,

Huntington Park, California, for Petitioner.

Susan Bennett Green, United States Department of Justice,

Office of Immigration Litigation, Washington, D.C., for

Respondent.
LIM V. HOLDER 3

OPINION

TROTT, Circuit Judge:

Hyuk Joon Lim, a native and citizen of South Korea,

petitions for review of a decision by the Board of

Immigration Appeals (“Board”) ordering his removal from

the United States because he violated the terms of his student

visa.

Lim contends the Board erred in concluding he was

statutorily ineligible for cancellation of removal because he

did not have the required ten years of continuous presence in

the United States immediately preceding his application for

relief, as required by 8 U.S.C. § 1229b(b)(1), (d)(1).

We have jurisdiction over this timely petition pursuant to

8 U.S.C. § 1252(a)(1), which we deny.

I

Lim claims he first entered the United States in 1989, at

the age of 18. He returned to South Korea from December

1994 to August 1998 and served in its military from May

1995 to May 1998. He came back from South Korea in 2001

on a visitor’s visa, which he converted to a student visa on

July 16, 2004. By not staying in school and by taking a job

at a store in Los Angeles, he violated the terms of his status.

Lim was served with a Notice to Appear on February 27,

2006, and proceedings commenced on March 2, 2006. Lim

concedes the truth of these facts. To have accrued ten years

of continuous physical presence before being served with the

Notice to Appear, he would have needed to be in the United

States since February 27, 2006.
4 LIM V. HOLDER

II

Lim conceded that he could not satisfy the “continuous

presence” demands of this statute because he had been out of

the country from 1994 to 1998 while completing mandatory

military service in the South Korean armed forces. In an

attempt to overcome this deficiency, he argued that his

absence should not count against him because of “the unique

military relationship between the United States and South

Korea,” citing a 1953 mutual defense treaty between the two

allies. In support of his contention, he invoked “due process”

and by implication the right to equal protection under the law.

He asserted that he qualified for the special continuous

presence exception available to honorably discharged aliens

who have served for twenty-four months “in active duty

status in the Armed Forces of the United States.” See

8 U.S.C. § 1229b(d)(3).

III

Cancellation of removal is a form of discretionary relief

which does not give rise to a “substantive interest protected

by the Due Process Clause.” Munoz v. Ashcroft, 339 F.3d

950, 954 (9th Cir. 2003). Insofar as Lim asserts that

Congress somehow violated constitutional commands when

it limited the exception upon which he relies to aliens serving

in the U.S. military, we review congressional policy only to

determine whether it rationally advances a legitimate

government purpose. Reno v. Flores, 507 U.S. 292, 305–06

(1993). Moreover, the Supreme Court has stated that “over

no conceivable subject is the legislative power of Congress

more complete than it is over” the admission of aliens.

Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320,

339 (1909); accord Shaughnessy v. United States ex rel.
LIM V. HOLDER 5

Mezei, 345 U.S. 206, 210 (1953) (“[T]he power to expel or

exclude aliens [is] a fundamental sovereign attribute . . .

largely immune from judicial control.”). Lim asserted that

service in a foreign military “controlled by the U.S. should

count as service in the U.S. military.” The Board was not

persuaded by Lim’s novel theory.

IV

The government advances an unassailable argument in

support of the rational basis of the statute’s limitation to

aliens serving in our military. The government points out that

aliens serving in our military are available for deployment

wherever they are needed, whereas an alien serving in the

South Korean military — or for that matter any other military

— has not been shown to be available for deployment at will

by our government. Thus, the limited exception fashioned by

Congress functions as a valuable quid pro quo in return for

assistance in our national defense. The rule advocated by

Lim would not. In this vein, the government directs us to

8 U.S.C. §§ 1439 and 1440, which make naturalization

available on preferential terms to persons who have served in

our armed forces. The Supreme Court has indicated that this

preference expresses “the gratitude of the country toward

aliens who render service in its armed forces in its defense.”

Tak Shan Fong v. United States, 359 U.S. 102, 107 (1959).

We suppose that Congress as a policymatter could extend the

privilege Lim seeks to persons serving in the armed forces of

our allies, but the short and conclusive answer is that it has

not done so.

In what amounts to tortured logic, Lim asserts that our

opinion in Daberkow v. United States, 581 F.2d 785 (9th Cir.

1978), supports his argument. We held in Daberkow that
6 LIM V. HOLDER

United States citizen-relatives of a German officer killed in

joint military exercises with the United States could not use

the Federal Tort Claims Act (FTCA) to sue the United States

government. Id. at 788. In so holding, we pointed out that

not even United States military personnel can follow this

legal path against our government. Lim illogically claims

that it follows from Daberkow that he, as a foreign citizen

who was formerly in another nation’s military, is entitled to

equal constitutional footing with aliens in our armed forces

who are not able to sue our government using the FTCA, and

that therefore, he is entitled to the same immigration benefit

as his supposed counterparts — all as a matter of

constitutional imperative. Suffice it to say that we find this

fanciful argument to be unconvincing.

PETITION DENIED.