FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KYONG HO SHIN; JIN HEE SHIN,  Nos. 06-73782

Petitioners, 06-73785

v. Agency Nos.  A047-055-519 ERIC H. HOLDER JR., Attorney

A047-415-708 General,

Respondent. OPINION 

On Petitions for Review of Orders

of the Board of Immigration Appeals

Argued and Submitted

March 12, 2010—San Francisco, California

Filed June 11, 2010

Before: J. Clifford Wallace, Susan P. Graber, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Dissent by Judge Wallace

8637
COUNSEL

John J. Marandas, Lake Oswego, Oregon, for the petitioners.

Alison Marie Igoe and Lindsay Williams, United States

Department of Justice, Civil Division/Office of Immigration

Litigation, for the respondent.

OPINION

McKEOWN, Circuit Judge:

We consider a non-citizen’s eligibility for a waiver of inadmissibility under § 212(k) of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1182(k) (“§ 212(k) waiver” or

“§ 212(k) relief”). Section 212(k) applies to “immigrants who

were unaware of their ineligibility for admission and who

could not have discovered the ineligibility by exercise of reasonable diligence.” Senica v. INS, 16 F.3d 1013, 1014 (9th

Cir. 1994).

Kyong Ho Shin and Jin Hee Shin (“the Shins”), both citizens and nationals of South Korea, are siblings who unknowingly obtained lawful permanent residence through the

criminal conspiracy of a former officer of the Immigration

and Naturalization Service (“INS”), Leland Sustaire. In

removal proceedings, the Shins sought a § 212(k) waiver of

inadmissibility due to the invalid immigrant visas that were

procured for them by their mother through the Sustaire

scheme. The Board of Immigration Appeals (“BIA”) found

the Shins ineligible for § 212(k) relief because they never possessed valid immigrant visas and were not “otherwise admissible” within the meaning of the statute. 

We grant the petitions for review. Section 212(k) expressly

makes relief available to non-citizens, like the Shins, who are

8640 SHIN v. HOLDER
deemed inadmissible for lacking a valid immigrant visa at the

time of entry and are not inadmissible for any other reason.

Because the Shins are eligible to seek such relief, we remand

the case to the BIA for a ruling on the merits of their petitions.

BACKGROUND

Between 1986 and 1994, Sustaire conspired with several

middlemen in the Korean-American and overseas Korean

community to produce fraudulent Form I-551 Alien Registration Cards, or “green cards,” for their clients. Essentially this

was a bribes for green cards scheme. 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 background of the Sustaire scheme).

The Shins obtained their lawful permanent resident

(“LPR”) status derivatively through their mother, Ok Nyo

Lee, who was admitted to the United States as an LPR in

December 1991. Although Lee told her son, Kyong Ho, that

she obtained her green card through her longtime employment

as a hairdresser on a U.S. military base in Korea, in truth she

obtained her green card through an immigration broker affiliated with Sustaire. Lee’s Form I-130 Alien Relative Petitions

for her children were approved in 1992. Visas were made

available to the Shins approximately seven years later,1 and

the Shins submitted the requisite fees, police clearances, and

supporting documentation to the U.S. Embassy in Seoul for

processing. The consulate interviewed the Shins and issued

immigrant visas. They were admitted to the United States as

LPRs in 1999 and 2000, respectively.2 The government initi1The Shins’ visa category was “F24,” unmarried son or daughter of a

U.S. permanent resident. 

2Kyong Ho Shin is married to a Japanese national and has two children,

one of whom is a U.S. citizen. Jin Hee Shin is unmarried and has no children; she works as a registered nurse. 

SHIN v. HOLDER 8641
ated removal proceedings against Lee and the Shins in April

2003 upon linking them to the Sustaire scheme. The government alleged that Sustaire had caused a false immigration

record to be created showing that Lee had adjusted to permanent residence as the spouse of a Skilled Worker or Professional holding a Baccalaureate Degree (Immigrant Visa

Classification E39), and that this record formed the basis of

the Shins’ admission to the United States. The government

charged the Shins with removability for lacking valid immigrant visas at the time of their entries into the United States

under 8 U.S.C. §§ 1227(a)(1)(A), 1182(a)(7)(A)(i)(I).3 The

government also charged the Shins with seeking to procure an

immigration benefit through fraud or misrepresentation, but

ultimately withdrew that charge in immigration court. By all

account in the present record, the Shins were innocent

bystanders to Sustaire’s fraudulent arrangement.

The immigration judge (“IJ”) ordered removal of the Shins

on August 11, 2005. The IJ ordered Lee’s removal earlier that

year. The IJ held that, although Lee “had not knowingly and

wil[l]fully engaged in fraud,” and the Shins had relied in good

faith on their mother’s representations that they were eligible

to immigrate, Lee nevertheless obtained an invalid green card

through the Sustaire connection, and the children’s green

cards were invalid by extension. The IJ also denied the

request for a § 212(k) waiver and granted the Shins voluntary

3Section 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 

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 identity and nationality

if such document is required under the regulations issued by the

Attorney General under section 1181(a) of this title, is inadmissible. 

8642 SHIN v. HOLDER
departure. The BIA affirmed in an unpublished, singlemember decision. 

ANALYSIS

We address two issues here: whether the BIA erred in finding that the Shins were removable and whether the BIA erred

in holding them ineligible for § 212(k) relief.4 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 BIA found that although the Shins may have been

“ ‘two or three degrees removed’ from the [Sustaire] scheme,”

their immigrant visas were tainted by the initial unlawful

grant of LPR status to their mother. The Shins qualified for

their immigrant visas as the “unmarried son[ ] or unmarried

daughter[ ] . . . of an alien lawfully admitted for permanent

residence.” 8 U.S.C. § 1153(a)(2)(B). Thus, the validity of

their visas turns on whether Lee’s admission for permanent

residence was “lawful” in nature. 

The Board cited two cases in support of its holding: Monet

v. INS, 791 F.2d 752 (9th Cir. 1986), and In re Koloamatangi,

23 I&N Dec. 548 (BIA 2003). Monet and Koloamatangi construed the meaning of the phrase “lawfully admitted for permanent residence,” which is found in the definitional

provisions of the INA, 8 U.S.C. § 1101(a)(20) and its identical predecessor statute. Section 1101(a)(20) defines the phrase

as “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 hav4Because we reverse the BIA’s denial of the Shins’ § 212(k) petition,

we do not address the Shins’ arguments regarding due process and equitable estoppel. 

SHIN v. HOLDER 8643
ing changed.” 8 U.S.C. § 1101(a)(20) (2006); id.

§ 1101(a)(20) (1976 & 1982). 

[1] Both Monet and Koloamatangi sought forms of relief

from deportation for which lawful admission for permanent

residence was a condition precedent to eligibility—in the case

of Monet, former INA § 212(c) relief; in the case of Koloamatangi, cancellation of removal under 8 U.S.C. § 1229b(a).

However, both Monet and Koloamatangi concealed their

inadmissibility at the time of their admission or adjustment to

permanent residence.5 We held that Monet had never been

“lawfully admitted” for permanent residence and was ineligible to seek relief. As we explained, “ ‘[a]dmission is not lawful if it is regular only in form. The term “lawfully” denotes

compliance with substantive legal requirements, not mere procedural regularity.’ ” Monet, 791 F.2d at 753 (quoting In re

Longstaff, 716 F.2d 1439, 1441 (5th Cir. 1983)). Similarly,

the BIA in Koloamatangi 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 is determined in proceedings.” 23 I&N Dec. at 551;

accord Lai Haw Wong v. INS, 474 F.2d 739, 742 (9th Cir.

1973) (holding that a “mistaken admission conferred no status, permanent resident or otherwise”).6 Under Monet and

Koloamatangi, Lee was never “lawfully admitted” for perma5Monet had concealed a prior drug conviction at the time of admission,

Monet, 791 F.2d at 753, and Koloamatangi had knowingly obtained LPR

status through a bigamous marriage. Koloamatangi, 23 I&N Dec. at 549.

6Other circuits have applied the same rule to determine eligibility for

various forms of relief from removal. See, e.g., Walker v. Holder, 589 F.3d

12, 19-21 (1st Cir. 2009) (derivative citizenship); Mejia-Orellana v. Gonzales, 502 F.3d 13, 15-17 (1st Cir. 2007) (per curiam) (cancellation of

removal); De La Rosa v. DHS, 489 F.3d 551, 554-55 (2d Cir. 2007) (former INA § 212(c) relief); Savoury v. U.S. Attorney Gen., 449 F.3d 1307,

1313-17 (11th Cir. 2006) (same); Arellano-Garcia v. Gonzales, 429 F.3d

1183, 1186-87 (8th Cir. 2005) (same). 

8644 SHIN v. HOLDER
nent residence and thus the Shins’ derivative visas were

improperly granted. 

The Shins’ arguments that they were lawfully admitted for

permanent residence despite their mother’s status do not persuade us. Although the facts of both Monet and Koloamatangi

involve acts of personal fraud or misrepresentation, their

holdings broadly deem all grants of LPR status that were not

in substantive compliance with the immigration laws to be

void ab initio. See Monet, 791 F.2d at 753; Koloamatangi, 23

I&N Dec. at 550 (referring to individuals who had “obtained

their permanent resident status by fraud, or had otherwise not

been entitled to it (emphasis added)); id. at 551 (affirming

“long-standing decisions holding that an alien [is] not ‘lawfully’ admitted for permanent resident status if, at the time

such status was accorded, he or she was not entitled to it”).

Other circuits are in accord. See Walker, 589 F.3d at 19-20;

Savoury, 449 F.3d at 1310, 1315-17; Arellano-Garcia, 429

F.3d at 1185, 1186-87; In re Longstaff, 716 F.2d at 1440-41.

Significantly, the Shins were not substantively qualified for

admission as LPRs at the time they entered the United States.

They argue that a timing loophole saves their case. Although

the IJ ultimately found Lee’s admission for permanent residence to be void ab initio, the Shins posit that Lee retained

her LPR status until the removal order of June 29, 2005.

Accordingly, they argue, the Form I-130 relative petitions that

Lee filed on the Shins’ behalf and their resulting visas were

valid at the time of the Shins’ admission to the United States.

[2] The Shins are correct that “[e]ven where there are

grounds to seek deportation or removal, a lawful permanent

resident is lawfully present in the United States until a final

deportation or removal order is entered.” Hernandez de

Anderson v. Gonzales, 497 F.3d 927, 943 (9th Cir. 2007); see

also 8 C.F.R. § 1001.1(p) (providing that LPR status “terminates upon entry of a final administrative order of exclusion,

deportation, removal, or rescission”). However, the issue of

SHIN v. HOLDER 8645
whether an LPR retains her status until the conclusion of

removal proceedings is distinct from whether she was “lawfully admitted” in the first place so that she may seek relief

from removal or, as in this case, petition for an alien relative

visa. Because Lee was never “lawfully admitted” to permanent residence, the Shins cannot validate their visas on the

basis that she was an LPR until ordered removed. Both Monet

and Koloamatangi reject the argument that the Shins raise

here. See Monet, 791 F.2d at 754-55; accord Savoury, 449

F.3d at 1314; Koloamatangi, 23 I&N Dec. at 550.

[3] Finally, the IJ did not improperly revoke the Shins’

alien relative petitions. Although IJs lack authority to decide

whether an alien relative visa petition should be granted or

revoked, they have jurisdiction to determine inadmissibility.

See 8 C.F.R. § 204.1(e) (delimiting jurisdiction over immediate relative and family-sponsored visa petitions); see also

Matter of Marcal Neto, 25 I&N Dec. 169, 174 (BIA 2010)

(explaining that IJs “may examine the underlying basis for a

visa petition when such a determination bears on the alien’s

admissibility”). Here, rather than “revoke” their visa petitions,

the IJ found the Shins removable because they failed to present a valid immigrant visa at the time of their entry to the

United States. The IJ acted entirely within his authority.

II. SECTION 212(k) WAIVER

The Shins argue in the alternative that, even if they are

removable, they are entitled to seek a waiver of inadmissibility under 8 U.S.C. § 1182(k), the “§ 212(k) waiver.” That statute provides as follows:

(k) Attorney General’s discretion to admit otherwise

inadmissible aliens who possess immigrant visas

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

8646 SHIN v. HOLDER
may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that inadmissibility was not known

to, and could not have been ascertained by the exercise 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. The BIA held that the Shins were ineligible to seek

§ 212(k) relief because they were never in possession of a

valid immigrant visa and thus were not “otherwise admissible” within the meaning of the statute.7

The BIA’s conclusion does not comport with a plain reading of the statute. As an initial matter, the government argues

7At oral argument, the government additionally argued that § 212(k)

waivers are only available to inadmissible non-citizens and not deportable

ones. However, the Shins are inadmissible because they lacked a valid

immigrant visa at the time of their entry into the United States. See 8

U.S.C. § 1182(a)(7)(A)(i). Their inadmissibility on this basis is what

makes them deportable. See 8 U.S.C. § 1227(a)(1)(A). Accordingly, the

Shins seek § 212(k) relief to waive the predicate finding of inadmissibility.

We have previously reviewed requests for § 212(k) waivers of noncitizens found deportable due to inadmissiblity. Senica, 16 F.3d at 1014.

The regulations also confirm that § 212(k) relief has long been available

to deportable non-citizens such as the Shins. Prior to the 1996 immigration

reform, former 8 C.F.R. § 242.8(a) (1996) expressly gave IJ the authority

to hear § 212(k) petitions in the context of deportation proceedings, as

contrasted with exclusion proceedings. See Matter of Aurelio, 19 I&N

Dec. 458, 461 (BIA 1987) (acknowledging the IJ’s jurisdiction). The current regulations governing deportation proceedings commenced prior to

the effective date of the 1996 Act expressly preserve that authority. 8

C.F.R. § 1240.41(a). Section 1240.1(a)(1)(ii), which grants IJs authority to

hear § 212(k) petitions in removal proceedings in general, does not depart

from that approach. 

SHIN v. HOLDER 8647
that we owe Chevron deference to the Board’s construction of

§ 1182(k). This is incorrect. An unpublished, nonprecedential

BIA decision is entitled to only Skidmore, rather than Chevron, deference. Barrios v. Holder, 581 F.3d 849, 859 (9th Cir.

2009). Accordingly, the weight of the Board’s decision

depends on “the thoroughness evident in its consideration, the

validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade, if lacking power to control.” Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944). Because the BIA’s opinion is

conclusory and lacks any meaningful analysis, we owe it no

deference here.

[4] We turn first to a plain reading of the statute. Section

212(k) imposes three threshold requirements: (1) that the noncitizen be inadmissible under § 1182(a)(5)(A) or

§ 1182(a)(7)(A)(i); (2) that the non-citizen be “in possession

of an immigrant visa;” and (3) that the non-citizen be “otherwise admissible.” The Shins satisfy all three criteria. The

Shins meet the first requirement because they lacked valid

immigrant visas at the time of their entry into the United

States, making them inadmissible under § 1182(a)(7)(A)(i)—

which renders inadmissible an immigrant who does not have

a “valid unexpired immigrant visa” or “other valid entry

document”—and deportable under § 1227(a)(1)(A). 

[5] The Shins similarly meet the second requirement

because they were in possession of invalid immigrant visas at

the time of entry. The BIA’s apparent assumption that the

“immigrant visa” in § 212(k) refers to a substantively valid

visa conflicts with the statutory text. By definition, § 212(k)

refers to visas that are invalid in nature—otherwise, the applicant would not be seeking a waiver of inadmissibility in the

first place. Moreover, there is no textual basis for building-in

substantive validity as a threshold criteria and excluding visas

that are void ab initio from § 212(k) relief. Indeed, when

§ 212(k) is read with the inadmissibility grounds it incorporates, it is clear that § 212(k) extends to the visas that the

8648 SHIN v. HOLDER
Shins presented at entry. Section 1182(a)(7)(A)(i)(II) makes

inadmissible “any immigrant at the time of application for

admission . . . whose visa has been issued without compliance

with the provisions of section 1153 of this title.” (emphasis

added). Section 1153 in turn sets forth the substantive eligibility requirements for immigrant visas, including the visas

which the Shins were improperly granted. See 8 U.S.C.

§ 1153(a)(2)(B) (defining as “qualified immigrants” the “unmarried sons or unmarried daughters . . . of an alien lawfully

admitted for permanent residence”). Because the Shins were

never “qualified immigrants,” their visas were not issued in

compliance with § 1153. The Shins’ visa plainly falls within

the scope of § 212(k). 

[6] Finally, the Shins meet the third requirement in that

their lack of a valid visa is the only reason they have been

found inadmissible. As a result, they are “otherwise admissible.” The invalidity of the Shins’ visa goes to the first threshold requirement, not the third. The BIA’s conclusion that the

Shins are not “otherwise admissible” because they lacked a

valid visa conflates these requirements. To treat the first

requirement—lack of a valid visa—as a disqualifying event

for the third requirement reads out the word “otherwise.” A

common-sense reading is that the individual must be admissible “other” than because of the invalid visa. Cf. CoronaMendez v. Holder, 593 F.3d 1143, 1147 (9th Cir. 2010) (holding that “otherwise admissible” prong of the fraud waiver at

8 U.S.C. § 1227(a)(1)(H) “requires that the court consider

whether the petitioner is inadmissible on more than one

ground at the time of the fraud the petitioner seeks waived”);

accord INS v. Yueh-Shaio Yang, 519 U.S. 26, 31-32 (1996)

(explaining that “otherwise admissible” means not excludable

on some ground other than the entry fraud).8

8The dissent argues that the Shins’ invalid visas render them both inadmissible for lacking proper documentation at entry and “otherwise inadmissible” within the meaning of the § 212(k). But this is a form of doublecounting. The term “otherwise” in § 212(k) plainly contemplates a basis

SHIN v. HOLDER 8649
Despite this plain reading of the statute, the government

seeks to bolster the BIA’s holding that the Shins were not

“otherwise admissible” by citing the definition of “immigrant

visa” at 8 U.S.C. § 1101(a)(16), which refers to “an immigrant visa required by this chapter and properly issued by a

consular officer at his office outside of the United States to an

eligible immigrant under the provisions of this chapter.” Id.

Because Lee’s LPR status was void ab initio, the government

argues, the visas that the Shins obtained derivatively were not

“properly issued” to them. We are not persuaded by this argument. The substantive flaw in the Shins’ visas is a precondition, rather than a bar, to their seeking § 212(k) relief. In

addition, the Shins’ immigrant visas were issued according to

the proper procedures: they were not procured by fraud, came

through the appropriate consular authorities, and were genuine documents. 

The government argues further that the § 212(k) waiver is

never available “to cure fraud, or to legitimize an ‘application’ procedure that was in all other respects invalid.” Instead,

this section covers only situations in which a visa was initially

approved according to proper procedures, but unforeseen

events rendered the visa holder inadmissible by the time he

arrived at the border. The basis for this argument is unclear.

for inadmissibility apart from or in addition to inadmissibility for lacking

a valid visa at entry. 

As a counter-example, the Shins might not have been “otherwise admissible” had the government prevailed on both the original charges of

deportability: that is, the lack of a valid immigrant visa and the attempt

to procure entry or an immigration benefit through fraud and misrepresentation. The Attorney General can waive fraud or misrepresentation only if

the applicant is the spouse, son, or daughter of a U.S. citizen or an LPR

which, given the invalidity of Lee’s LPR status, would not have been the

case here. See 8 U.S.C. §§ 1182(i)(1), 1227(a)(1)(H). In this scenario, the

Shins would therefore be ineligible for a waiver as they would be additionally inadmissible based on fraud. See Singh v. Gonzales, 451 F.3d 400,

402-03 (6th Cir. 2006). 

8650 SHIN v. HOLDER
As an initial matter, there are no allegations that the Shins

committed fraud. More importantly, the government’s position regarding invalid visas—for which it cites no authority—

departs from the plain text of the statute. The very essence of

the statute authorizes the Attorney General to waive “inadmissibility” based on invalid documentation in general. Id.

§ 1182(k).

The one Court of Appeals decision to have addressed and

affirmed the grant of § 212(k) waiver, Mayo v. Ashcroft, 317

F.3d 867 (8th Cir. 2003), supports our interpretation of the

statute. Mayo, a citizen of the Philippines, obtained an immigrant visa and attempted to enter the country as the unmarried

daughter of an LPR. The INS deferred her entry because it

found evidence suggesting that she was married. The IJ and

BIA eventually ordered her exclusion on the ground that she

had misrepresented her marital status. The Eighth Circuit initially remanded based on procedural deficiencies in Mayo’s

exclusion proceedings and, on remand, the IJ granted Mayo

§ 212(k) relief because Mayo believed she was unmarried at

the time of her entry. Id. at 869-70. The Eighth Circuit

affirmed on appeal. Id. at 873-74.

Mayo is relevant because the Eighth Circuit affirmed the

grant of § 212(k) relief even though Mayo was not entitled to

her visa at the time it became available to her. Mayo applied

for her visa in 1981 and was allegedly married in June 1983;

her visa did not become available to her until 1987. Mayo v.

Schiltgen, 921 F.2d 177, 178-79 (8th Cir. 1990). On these

facts, Mayo became ineligible for her visa when she married,

and thus her visa was substantively invalid when issued in

1987. Nevertheless, as the Eighth Circuit held, § 212(k) relief

remained available to waive Mayo’s excludability. Similarly,

in Senica, we considered the merits of a § 212(k) petition

even though the petitioners’ underlying visa was substantively

invalid, 16 F.3d at 1014-16, as did the BIA in Matter of

Aurelio, 19 I&N Dec. 458, 459, 462-63 (BIA 1987). 

SHIN v. HOLDER 8651
[7] In sum, the Shins were inadmissible under the specific

statutory provisions referenced within § 212(k) because they

had no valid immigrant visa and, other than the visa defect,

they were otherwise admissible. This reading of the statute

gives meaning to the threshold clauses of the statute. Compliance with the statutory requirements renders the Shins eligible

for a waiver of inadmissibility.

CONCLUSION

[8] Because nothing in § 1182(k) precludes the Shins from

seeking a waiver of inadmissibility, we reverse the BIA and

remand for a ruling on the Shins’ applications for relief. See

INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per

curiam). 

The petitions for review are GRANTED.

WALLACE, Circuit Judge, dissenting: 

I dissent from the majority’s opinion because I have a real

doubt that it represents the plain meaning of the statute, 8

U.S.C. § 1182(k). I favor remanding to the Board of Immigration Appeals (Board), so that the agency entrusted with

administration of our immigration laws may first address the

question of statutory interpretation presented here.

I.

I agree with the result reached in section one of the majority opinion, which holds that the Shins are removable because

they were never lawfully admitted to the United States. The

Shins obtained their immigrant visas derivatively of their

mother, Ok Nyo Lee, who was admitted to lawful permanent

residence (LPR) status in 1991. Ms. Lee’s status, however,

was void ab initio for noncompliance with the immigration

8652 SHIN v. HOLDER
laws, and the Shins’ derivative visas are therefore void as

well. See Monet v. INS, 791 F.2d 752, 753 (9th Cir. 1986); In

re Koloamatangi, 23 I. & N. Dec. 548, 549 (BIA 2003).

II.

I disagree, however, that the Shins are nevertheless eligible

to seek the waiver of inadmissibility provided in section

212(k) of the Immigration and Nationality Act (INA). 8

U.S.C. § 1182(k). Section 212(k) vests the Attorney General

with authority to admit certain “otherwise inadmissible aliens

who possess immigrant visas,” who did not know of, and

could not have “ascertained by the exercise of reasonable diligence” the basis for his or her inadmissibility. Eligibility for

discretionary relief under section 212(k) is extended only to

those aliens who are (1) inadmissible under 8 U.S.C.

§§ 1182(a)(5)(A) & (7)(A)(I); (2) “in possession of an immigrant visa;” and (3) “otherwise admissible.”

The Shins meet the first prerequisite set forth in section

212(k): they were deemed inadmissible under 8 U.S.C.

§ 1182(a)(7)(A)(I). But the Shins have not demonstrated that

they meet the second and third preconditions. The Shins were

not actually “in possession of [ ] immigrant visa[s]” because,

as we have already determined, their visas were void ab initio.

In addition, the Shins do not appear to be “otherwise admissible.” Their visas were derivative of their mother’s

fraudulently-obtained LPR status. As her status provides no

basis for the validation of their visas, the Shins have no basis

for admission. The Shins were not “substantively qualified”

for the visas that they received and thus not “otherwise admissible.” 

The majority reads the statute as imposing two relevant

preconditions to the Shins’ eligibility for a 212(k) waiver: that

they be inadmissible under section 1182(a)(7)(A)(I) and that

they be “otherwise admissible.” The majority reasons that the

Shins’ lack of valid visas is relevant only to the first requireSHIN v. HOLDER 8653
ment. The majority reasons, further, that to consider the

Shins’ lack of valid visas as to the second requirement would

conflate the two requirements and render the term “otherwise”

surplusage. 

But what is the meaning of the term “otherwise admissible”

under the majority’s view? And what of the requirement that

aliens seeking section 212(k) waivers be “in possession of an

immigrant visa”? The majority’s opinion does not represent

the plain meaning of section 212(k). The provision, like many

other waiver provisions within the INA, is directed at the difficult task of providing a discretionary avenue for the admissibility of otherwise inadmissible persons. Indeed, use of the

phrase “otherwise admissible” in other sections of the statute

has given rise to disagreement and confusion. See, e.g., Reid

v. INS, 420 U.S. 619 (1975); INS v. Errico, 385 U.S. 214, 218

(1966) (“The sharp divergence of opinion among the circuit

judges in these cases indicates that the meaning of the words

‘otherwise admissible’ is not obvious”); H.R. Rep. 97-264 at

24-25, reprinted at 1981 U.S.C.C.A.N. 2577, 2593-94 (stating

that, in relation to family waiver provision, “the scope of the

waiver and the meaning of ‘otherwise admissible’ have

become increasingly unclear”).

My doubts are reinforced by looking at the history and

intent of the waiver. Section 212(k) was added in 1981 “to

authorize the Attorney General to waive certain technical

defects in immigrant visas which are not the fault of the alien

involved.” H.R. Rep. 97-264, 34, reprinted in 1981

U.S.C.C.A.N. 2577, 2603 (emphasis added); see also C. Gordon, et al., Immigration Law and Procedure § 63.12

(“§ 212(k) is intended to provide relief from technical defects

in visas that are not the fault of the noncitizen”). For example,

the “waiver may be granted if the foreign consulate placed an

improper classification symbol on the immigrant visa cover

page, or where a classification has changed due to the noncitizen turning twenty-one years old.” C. Gordon, et al., Immigration Law and Procedure § 63.12 A provision similar to

8654 SHIN v. HOLDER
section 212(k) existed in earlier versions of the act, but was

inadvertently dropped when the act was amended in 1965.

H.R. Rep. 97-264, 34, reprinted in 1981 U.S.C.C.A.N. 2577,

2603. 

The majority reasons that to consider the Shins’ lack of

valid visas as to both the first relevant precondition to eligibility for a 212(k) waiver — inadmissibility pursuant to

1182(a)(7)(A)(I) — and the second relevant precondition —

that the Shins be “otherwise inadmissible”— results in impermissible “double counting.” Instead, the majority reasons,

application of 212(k) waives the relevant basis for inadmissibility, and the Shins are therefore admissible “ ‘other’ than

because of the invalid visa.” Cf. Corona-Mendez v. Holder,

593 F.3d 1143 (9th Cir. 2010); Matter of Sosa-Hernandez, 20

I & N Dec. 758 (1993). The facts of the present case are quite

distinct, to my mind, from the circumstances of CoronaMendez and Sosa-Hernandez, which concerned the

237(a)(1)(H) waiver.

The Shins’ visas were derivative of their mother’s

fraudulently-obtained LPR status, and thus void ab initio. It

would appear that the Shins were never in possession of valid

visas and also were not “otherwise admissible” because, without status derivative of their mother’s status, there was no

basis for their admission to the United States. The Shins are

not “otherwise” inadmissible because of a defect in their

visas, but the total non-existence of the precondition to their

issuance in the first place. The 212(k) waiver might eliminate

the defect in the Shins’ visas, but that waiver alone does not

provide a basis for their admission, which was predicated on

their mother’s fraudulently-obtained status. 

III.

I doubt that the Shins’ situation represents the type of inadmissibility that section 212(k) was intended to remedy, and do

not agree that the majority opinion represents the plain lanSHIN v. HOLDER 8655
guage of the statute. Indeed, the majority’s opinion is inconsistent with that of the Board in this case. I agree with the

majority that we have not yet been presented with an opinion

from the Board that is entitled to Chevron deference. Chevron

U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). The

Board’s decision in the Shins’ case is an unpublished onemember decision that does not represent binding agency precedent. See Ramos-Lopez v. Holder, 563 F.3d 855, 858-59

(9th Cir. 2009); Marmolejo-Campos v. Holder, 558 F.3d 903,

909 (9th Cir. 2009). 

The Board’s opinion is nevertheless entitled to Skidmore

deference. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

Under this standard, “The weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade,

if lacking power to control.” United States v. Mead Corp., 533

U.S. 218, 228 (2001), citing Skidmore, 323 U.S. at 140; see

also Morales-Garcia v. Holder, 567 F.3d 1058, 1061 (9th Cir.

2009) (“Where, however, the [Board] resolves an appeal in an

unpublished decision, as in this case, we defer to its interpretations of the INA not resolved by prior precedential decisions

only to the extent of its thoroughness and overall persuasiveness”); Miranda Alvarado v. Gonzales, 449 F.3d 915, 922

(9th Cir. 2006) (collecting cases). 

The Board determined that the Shins were not eligible for

a 212(k) waiver because “the respondents stand as aliens who

have never been in possession of a valid immigrant visa.” The

Board also determined that the Shins were not “otherwise

admissible” because their mother received her status as the

spouse of a skilled worker, but “the factual basis for the grant

of the visa to the respondents’ mother never existed.” Thus,

with their mother’s status void, the Shins were never “otherwise admissible.” The majority may prefer a different interpretation, but that is not the Skidmore test. The Board’s

8656 SHIN v. HOLDER
interpretation, in my view, is persuasive and consistent with

the language of the statute. That is all that is required.

IV.

Obviously, the three judges of this panel lack consensus on

the meaning of section 212(k). The statute is not, as the

majority says, clear. I question why it is necessary to interpret

the statute in a vacuum, without guidance from the Board, as

the majority does. In light of our duty to defer to an agency’s

reasonable interpretation of a statute that it administers, Chevron, 467 U.S. 837, and the “ordinary remand requirement,”

INS v. Orlando Ventura, 537 U.S. 12, 17 (2002) (per curiam),

I would remand to the Board to give the Board an opportunity

to rule, in a precedential opinion, on the issue of statutory

interpretation presented here. 

The importance of deference to an implementing agency is

part of our law. In Chevron, the Court emphasized: “We have

long recognized that considerable weight should be accorded

to an executive department’s construction of a statutory

scheme it is entrusted to administer, and the principle of deference to administrative interpretations.” 467 U.S. at 844

(footnote omitted); see also INS v. Aguirre-Aguirre, 526 U.S.

415, 424-25 (1999) (Board interpretation of INA is entitled to

deference); Auer v. Robbins, 519 U.S. 452, 456-58 (1997).

When we proceed to the interpretation of a statute in the

absence of agency guidance, we create the potential for conflict between ourselves and the agency, and between ourselves and other circuits. Inversion of this sequence is not

without consequences. See, e.g. Nat’l Cable & Telecomm.

Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005); id. at

1015-20 (Scalia, J., dissenting); Mead, 533 U.S. at 239-61

(Scalia, J., dissenting).

Remand is an appropriate option. In Orlando Ventura, the

Court advised that, “[g]enerally speaking, a court of appeals

should remand a case to an agency for decision of a matter

SHIN v. HOLDER 8657
that statutes place primarily in agency hands.” 537 U.S. at 16

(per curiam); see also Gonzales v. Thomas, 547 U.S. 183

(2006) (per curiam). Since Orlando Ventura, we have endeavored to distinguish “between circumstances in which remand

is necessary . . . and circumstances in which remand is unnecessary because the BIA exercised its expertise before the case

came before us.” Kawashima v. Holder, 593 F.3d 979, 987

(9th Cir. 2010); see also Fernandez-Ruiz v. Gonzales, 466

F.3d 1121, 1132-34 (9th Cir. 2006) (en banc) (declining to

remand where the legal issue was the interpretation of a state

criminal statute, which was not an area committed to the

agency’s expertise); Perez-Enriquez v. Gonzales, 463 F.3d

1007, 1014-15 (9th Cir. 2006) (en banc).

In some cases we have remanded to the Board for its guidance on a question of statutory interpretation arising under the

INA. For example, in Velazquez-Herrera v. Gonzales, we

remanded a petition to the Board “so that it may issue a precedential decision defining what constitutes a crime of child

abuse [as used in the INA] and apply that definition to petitioner’s conviction.” 466 F.3d 781, 782 (9th Cir. 2006). We

concluded that it would be “prudent to allow the BIA in the

first instance to settle upon a definition of child abuse in a

precedential opinion.” Id. at 783. Similarly, in Chen v.

Mukasey, we remanded a petition to the Board for interpretation of INA section 1158(d)(6), respecting frivolous applications for asylum, in the first instance “in light of a recent

decision in the Second Circuit.” 527 F.3d 935, 936 (9th Cir.

2008); see also Kawashima, 593 F.3d at 988 (remanding to

the Board to consider types of evidence that may be considered pursuant to Nijhawan v. Holder, 129 S. Ct. 2294 (2009)).

Both the rule of Chevron deference and the ordinary

remand rule sound in the same rationale: deference to the

agency charged with the administration of a statute in the first

instance. The agency possesses expertise in the subject matter

and has been entrusted with administration of the relevant

statutory scheme. See Nat’l Cable, 545 U.S. at 980. In light

8658 SHIN v. HOLDER
of the Board’s view in this case, and my own reading of the

statute, I do not believe that the majority’s opinion represents

the plain meaning of the statute. Although the Board’s decision in this case is not precedential, it is persuasive. To

resolve this obvious different definition of the meaning of the

statute, I believe that the most prudent course is to remand the

issue to the Board for a published opinion.

I therefore dissent.

SHIN v. HOLDER 8659