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.

A072-343-662

v.  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
COUNSEL

Deborah Ann Dyson, Goswami, Strand & Seaborn, San Francisco, California, for the petitioners.

Lindsay Elizabeth Williams, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, 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

KIM v. HOLDER 6607
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 background of the Sustaire scheme). The Kims, all natives and citizens 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

1Upon her request, the BIA dismissed Nam Yeol Kim’s appeal of her

removal order on December 28, 2005. 

2Section 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 

6608 KIM v. HOLDER
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 government failed to meet its burden of proving removability and, in

the alternative, that the exclusion of returning permanent residents from eligibility for § 212(k) waivers violates equal protection 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 circumstantial 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 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. 

KIM v. HOLDER 6609
that Sustaire submitted to law enforcement authorities identifying 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 coconspirators, 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 permanent 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 Multinational 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:

6610 KIM v. HOLDER
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 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.

[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,

KIM v. HOLDER 6611
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) purportedly 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.

6612 KIM v. HOLDER