FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YOUNG SUN SHIN,  Nos. 06-71955

Petitioner, 06-74052

v. Agency No. 

M A72-976-144 ICHAEL B. MUKASEY, Attorney

General, ORDER AND

Respondent. OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 7, 2007—San Francisco, California

Filed October 23, 2008

Before: Dorothy W. Nelson and Carlos T. Bea,

Circuit Judges, and Louis F. Oberdorfer,*

Senior District Judge.

Opinion by Judge Bea

*The Honorable Louis F. Oberdorfer, Senior United States District

Judge for the District of Columbia, sitting by designation. 

14779
COUNSEL

Alex Park, Santa Clara, California, for the petitioner.

William Roppolo, Liquita Thompson, Celina Joachim, Jordan

Faykus, Kendra Massumi, Baker & McKenzie LPP, Miami,

Florida, Pro Bono Amicus Curiae for the petitioner.

Peter Keisler, James Grimes, Sarah Maloney, United States

Department of Justice, Washington, D.C., for the respondent.

ORDER

The petition for panel rehearing is granted in part. The

motion to file a petition for rehearing by amicus curiae is

denied. The opinion filed earlier is withdrawn, and the

attached opinion filed today is substituted in its place.

OPINION

BEA, Circuit Judge: 

We consider today whether an alien who overstayed her

tourist visa, and then paid $10,000 for the purchase of a fraudulent alien registration card (known as a “green card”) manufactured by a corrupt federal immigration employee, can bar

the government from removing her from this country on the

grounds the government is estopped to assert the green card

is bogus. Unsurprisingly, we hold the government cannot be

14782 SHIN v. MUKASEY
saddled with the felonious, unauthorized issuance of residency documentation by a thieving employee. 

Young Sun Shin petitions for review from a final order of

removal from the Board of Immigration Appeals (“BIA”) and

from the BIA’s denial of her motion to reopen. Petitioner also

seeks a remand to file a second motion to reopen. Petitioner

claims the government failed to meet its burden of showing

she was removable. As a fallback, she claims that, because

government employee Leland Sustaire engaged in affirmative

misconduct, the government should be estopped from removing her. Petitioner expressly conceded removability. She did

not apply for any form of relief from removability. Her due

process violation claims are without merit. Hence, we deny

her petition for review of the removal order. 

Petitioner also seeks reconsideration of the BIA’s denial of

her motion to reopen and she seeks a remand to file a second

motion to reopen to adjust her status. The BIA denied her

motion to reopen because petitioner failed to attach the necessary documentation showing she was entitled to adjust her

status. Because petitioner does not now demonstrate she

would be entitled to adjust her status on remand, nor that the

BIA’s denial of her motion to reopen was error, her petition

for review from the denial of her motion to reopen and her

motion to remand are also denied. 

I.

Petitioner, a native and citizen of the Republic of Korea

(“South Korea”), originally entered the United States in June

of 1993 on a tourist visa that allowed her to remain for six

months. In October of 1994, petitioner received an alien registration card (a “green card”) which adjusted her status to a

lawful permanent resident. The card allowed her to stay in the

United States as the spouse of a skilled worker or professional

holding a baccalaureate degree. At the time, petitioner had no

husband; she had been divorced for three years. What is more,

SHIN v. MUKASEY 14783
her former husband, who had never been to the United States,

held only a high school diploma. 

Petitioner obtained her permanent resident status through

Kyun Min Lee (“Lee”), a runner for Leland Sustaire, who was

using his government position to sell fraudulent green cards.

For a complete background on Sustaire and the conspiracy,

see this court’s opinion in Hong v. Mukasey, No. 06-72823.

Petitioner paid Lee $10,000 to obtain her green card. She

never went to an Immigration and Naturalization Office

(“INS”) office, nor was she interviewed by an INS agent.

Petitioner claims she was unaware of the fraud until she saw

an article about Lee’s indictment in 2000. 

Sustaire had compiled a list of “A” numbers that identified

aliens who had obtained unlawful changes in their status as a

result of his fraudulent scheme. Petitioner’s number appeared

on this list. Petitioner came to the attention of the INS when,

as part of a plea bargain, Sustaire’s attorney delivered the list

to the Department of Homeland Security’s (“DHS”) Office of

the Inspector General. Petitioner was charged with removability for being an alien not in possession of valid documents for

admission under Immigration and Nationality Act (“INA”)

§ 237(a)(1)(A), codified at 8 U.S.C. § 1227(a)(1)(A), and for

remaining in the United States for a time longer than permitted under INA § 237(a)(1)(B), codified at 8 U.S.C.

§ 1227(a)(1)(B). 

At the hearing, in exchange for the government’s agreement to drop an additional fraud charge pending against petitioner, petitioner conceded she did not possess valid

immigration documents. Petitioner denied the charge that she

had remained in the United States longer than permitted.

However, she did not apply for any form of relief from

removal. 

The Immigration Judge (“IJ”) sustained both charges of

removability and ordered petitioner removed to South Korea.

14784 SHIN v. MUKASEY
The IJ declined to address petitioner’s argument that the government had “unclean hands” in the removal proceeding

because of Sustaire’s misconduct and, therefore, should be

estopped from removing her. 

On appeal, the BIA adopted and summarily affirmed the

IJ’s decision. Petitioner then filed a motion to reopen to file

an application to adjust her status. In support of her motion to

reopen, petitioner submitted a copy of her application and

documentation of an approved labor certification. However,

she failed to attach an approved I-140 Form (a petition to

adjust her status to an alien worker) or other pertinent documentation, as required by 8 C.F.R. § 1003.2(c). Accordingly,

the BIA denied her motion to reopen.

II.

When the BIA adopts the decision of the IJ, we “review the

IJ’s decision as if it were that of the BIA.” Abebe v. Gonzales,

432 F.3d 1037, 1039 (9th Cir. 2005) (en banc). 

We review “the IJ’s findings of fact for substantial evidence and will uphold these findings if they are supported by

reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. at 1039-40 (quotation marks and

citation omitted). We review questions of law, including due

process challenges, de novo. Ramirez-Alejandre v. Ashcroft,

319 F.3d 365, 377 (9th Cir. 2003). 

We have jurisdiction to review the BIA’s final order of

removal against petitioner. 8 U.S.C. § 1252. 

Petitioner argues the government should be estopped from

removing her due to Sustaire’s actions. Under 8 U.S.C.

§ 1252(g), we have no “jurisdiction to hear any cause or claim

by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders . . . .” See also

SHIN v. MUKASEY 14785
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.

471, 482 (1999). However, we have jurisdiction over petitioner’s equitable estoppel claim because it arises from actions

taken by a corrupt government employee prior to any decision

made by the Attorney General to commence proceedings

against her. See Wong v. United States, 373 F.3d 952, 965

(9th Cir. 2004) (holding that “§ 1252(g) does not bar review

of actions that occurred prior to any decision to ‘commence

proceedings’ ”). 

III.

[1] Substantial evidence supports the IJ’s finding petitioner

remained in the United States longer than permitted. Petitioner was admitted to the United States as a visitor for six

months in 1993 and later obtained an invalid resident alien

card as part of Sustaire’s criminal, fraudulent scheme. On the

basis of this documentary evidence and also considering

Sustaire’s testimony before the court, the IJ found “there is no

doubt . . . [Shin] is not and has never been in possession of

a valid resident alien card.” The evidence proves the only

lawful basis for petitioner’s presence in the United States was

her visitor’s visa which allowed her to stay for only six

months and expired in December of 1993. Hence, substantial

evidence supports the IJ’s ruling petitioner was removable for

having remained in the United States longer than allowed by

her valid immigration documents. 

[2] Petitioner argues the government failed to meet its burden of showing she was removable under INA § 237(a)(1)(A).

“The government has the initial burden of establishing the

alien’s deportability by clear and convincing evidence.”

Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir. 1985). However, where the alien concedes removability, “the government’s burden in this regard is satisfied.” Id. At the hearing

before the IJ, petitioner’s counsel expressly conceded removability on the ground she was not in possession of valid documents for admission. Additionally, petitioner did not apply for

14786 SHIN v. MUKASEY
any form of relief from removability. On the basis of petitioner’s concession, the government’s burden is satisfied and petitioner’s claim is without merit. Id.

IV.

[3] The transcript of Sustaire’s confessional deposition,

Sustaire’s list of the “A” Numbers of aliens to whom he

fraudulently gave green cards, and the records of criminal

convictions in Sustaire’s and Lee’s cases, were all admitted at

petitioner’s hearing. In the interest of judicial economy, the IJ

arranged for Sustaire to be deposed on two different dates,

first by attorney Alex Park, who represented petitioner and

over 100 other aliens, and then by the attorneys representing

the remaining aliens. Petitioner, through counsel, objected to

the use of Sustaire’s consolidated testimony and now alleges

the IJ violated her due process rights by admitting Sustaire’s

deposition testimony in her removal proceedings. We disagree. 

[4] “In order to successfully attack by judicial proceedings

the conclusions and orders made upon such [removal] hearings it must be shown that the proceedings were manifestly

unfair” and that the actions of the IJ were such as to prevent

a fair investigation. Low Wah Suey v. Backus, 225 U.S. 460,

468 (1912). Petitioner’s proceeding was not so fundamentally

unfair that she was prevented from reasonably presenting her

case. Petitioner’s counsel participated in Sustaire’s deposition

and was allowed to cross-examine him. Petitioner also had the

benefit of hearing and comparing Sustaire’s responses to other

attorneys’ questions. Additionally, during each alien’s hearing, Sustaire was made available if additional testimony was

needed. Most importantly, petitioner was given an individual

hearing before an IJ where any defenses or claims for relief

were heard. Because we find no procedural defect amounting

to a due process violation in this procedure, petitioner’s due

process claim fails.

SHIN v. MUKASEY 14787
V.

[5] Petitioner contends the government should be equitably

estopped from removing her. At the heart of her estoppel

argument is the claim she was unaware “of the bribery and

fraud committed by Sustaire,” and she “relied on the issuance

of the immigration papers and lived a productive life in the

United States at the cost of . . . [pursuing] a life in South

Korea.” 

Estoppel requires the following: 

(1) the Party to be estopped must know the facts; (2)

he must intend that his conduct shall be acted on or

must so act that the party asserting the estoppel has

a right to believe it is so intended; (3) the latter must

be ignorant of the true facts; and (4) he must rely on

the former’s conduct to his injury. 

Watkins v. United States Army, 875 F.2d 699, 709 (9th Cir.

1989) (en banc) (quotation marks and citation omitted). Here,

Shin fails to qualify for estoppel because the party asserting

estoppel “must be ignorant of the true facts.” Id. at 709. 

[6] The facts of the case demonstrate that Shin was not

ignorant of the scheme, but was rather a participant. Shin

entered the United States in June 1993 on a tourist visa. In

October 1994, she paid a runner $10,000 to obtain a green

card which adjusted her status to a lawful permanent resident.

The card allowed her to stay in the United States as the spouse

of a skilled worker or professional holding a baccalaureate

degree. At the time, however, Shin had no husband. She was

divorced. Furthermore, her husband, who had never been to

the United States, held only a high school diploma. These

facts make plain that Shin was not an innocent dupe, but

rather a party who sought to benefit from Sustaire’s scheme.

14788 SHIN v. MUKASEY
VI.

[7] Petitioner also requests remand to the BIA so she may

thereby file a second motion to reopen. A motion to reopen

must, among other things, state the new facts to be considered

at the reopened hearing and be supported by affidavits or

other evidentiary materials demonstrating prima facie eligibility for the relief sought. 8 C.F.R. § 1003.2(c)(1). The BIA

denied petitioner’s initial request for reopening to apply for

adjustment of status because she failed to submit a copy of an

approved I-140 Form (a petition to adjust her status to an

alien worker) or other documentation which would satisfy the

regulatory requirements under 8 C.F.R. § 1003.2(c)(1).

Although petitioner contends she has filed an I-140 Form, as

was the case before, she did not include any documentation

to show her application has been approved. Aliens who seek

to remand or reopen proceedings to pursue relief bear a

“heavy burden” of proving that, if proceedings were

reopened, the new evidence would likely change the result in

the case. Matter of Coelho, 20 I. & N. Dec. 464, 473 (BIA

1992). Petitioner has not met this burden because she has

failed to cure the defects that led to her motion to reopen

being denied in the first place. 

[8] Further, aliens are entitled to file only one motion to

reopen. See 8 C.F.R. § 1003.2(c)(2) (providing that a party

may file only one motion to reopen proceedings and that

motion must be filed within 90 days after the date on which

a final administrative decision was filed). Petitioner is now

barred from filing a second motion to reopen. Id. Accordingly, petitioner’s motion to remand to file a second motion

to reopen is denied. 

DENIED.

SHIN v. MUKASEY 14789