1 Pursuant to Federal Rule of Appellate Procedure 43( c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for Michael B. Mukasey as respondent.

2 The Honorable Richard H. Kyle, United St ates District Judge for the District of Minnesota, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-2211

___________ Sungwook Kim, *
* Petitioner, * * Petition for Review of v. * an Order of the Board * of Immigration Appeals. Eric H. Holder, Jr., 1 United States * Attorney General, *
* Respondent. *

___________ Submitted: December 11, 2008 Filed: March 26, 2009

___________ Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE, District Judge. 2

___________ BEAM, Circuit Judge. Sungwook Kim petitions for review of the Board of Immigration Appeals' (BIA) decision to affirm an Immigration J udge's (IJ) order that Kim be removed from the United States pursuant to sections 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I) of the3 In March 2003, the INS b ecame a part of the Department of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
-2- Immigration and Nationality Act (INA), 8 U.S.C. §§ 1182(a)(6)(A)(i), (a)(7)(A)(i)(I), and denying his request to cancel the re moval proceedings under section 240A(a) of the INA, 8 U.S.C. § 1229b(a). For the following reasons, we deny Kim's petition.

I. BACKGROUND

Kim, a native citizen of South Korea, entered the United States on an F-1 student visa in 1988. Afte r college, Kim's employer help ed him begin the process of obtaining permanent residency. In 1992, Ki m went to San Jose at his employer's direction to fill out the necessary paperw ork for his Permanen t Resident Card (green card). Kim was told that the cost to obtain his card would be$10,000, of which he paid $2,000 while in San Jose–the remaining balance was withheld from his paychecks. Later that same year, Kim received his green card.

For the next ten years, Kim lived and wo rked in St. Louis, Missouri, and once a year traveled to South Kor ea to visit family. While attempting to reenter the United States following his most recent visit to South Korea in 2003, Kim was detained by Immigration and Naturalization Service (INS) 3 officers in Chicago for having an invalid green card. Kim was released, but was later served with a Notice to Appear that, as amended, alleged he was s ubject to removal under INA sections 212(a)(6)(A)(i), 212(a)(6)(C )(i), and 212(a)(7)(A)(i)(I).

The controversy surrounding Kim's green card stems from the conviction of Leland Sustaire, the Supervisory District Adjudication Officer for the INS's San Jose office during the time Kim applied for and r eceived his green card. In 1998, Sustaire admitted to accepting bribes in exchange for issuing green cards. The government-3- alleged Kim's green card was fraudulently i ssued based on a "legally and factually baseless immigration record" thatwas created at the behest of Kim, or his agent, after the payment of a bribe to Sustaire. As a result, the government sought Kim's removal as an arriving alien without the proper documentation.

At Kim's hearing before the IJ, the gove rnment submitted several exhibits over Kim's objection to show Kim's green card was fraudulently issued. The government introduced: a form I-213 Record of Deportabl e/Inadmissible Alien; a list of alien numbers, prepared by Sust aire, representing those persons from whom Sustaire received bribes; and, from the bribery trials, the government's Motion for Downward Departure, a transcript of Sustaire's tes timony, and a copy of the judgments. Further, Agent Lesley Brown testified regarding th e bribery scheme, specifically noting that Kim was ineligible for a status adjustment at the time it was i ssued to him in 1992. Kim challenged the introduction of this evidence as irrelevant, without foundation, and as inadmissible hearsay.

The IJ found the evidence showed it was "unusual" that Kim would travel from St. Louis to San Jose to obtain his green card. Further, the IJ found Kim did not qualify for a green card at the time it was obt ained. The IJ also found the amount Kim paid to obtain the green card and the quickness with which it was received were suspect. Finally, the list, sorted by alien number, prepared by Sustaire in his bribery trial showing the green cards issued for which he received a bribe, included Kim's alien number and corroborated the government 's allegation. Thus, the IJ found by "clear and convincing evidence that . . . a legally and factually baseless immigration record . . . [was] improperly issued," a nd, as a result, Kim did not possess a valid green card, and was therefore removable.

The BIA, on Kim's appeal, agreed with the IJ. Kim's claim th at the IJ erred in admitting the government's evidence was re jected by the BIA because hearsay is admissible when probative and fundamentally fair, and the government's evidence was-4- both. Additionally, the BIA found Kim was properly charged on inadmissibility grounds because he was not "an alien lawfully admitted for permanent residence at the time he attempted to return." The BIA also noted that 8 U.S.C. § 1256(a) did not prohibit the removal proceedings as time- barred because the five-year statute of limitations relied upon by Kim applied only to rescission of status adjustments, not removal. Kim was also f ound not eligible for cancellati on of the removal proceedings by the BIA because cancellation only applies to lawful permanen t residents, which Kim was not. Kim petitions this court for re view alleging he was denied due process by the admission of the government's evidence, he was improperly treated as an arriving alien, and he qualified for can cellation of the removal proceedings.

II. DISCUSSION

"We review questions of law de novo and accord substantial deference to the BIA's interpretation of immigration law and agency regulations." Arellano-Garcia v. Gonzales , 429 F.3d 1183, 1185 (8th Cir. 2005).

A. Hearsay Evidence

Instead of challenging the sufficiency of the government's evidence establishing that Kim's green card was illegally issued, Kim alleges the evidence was inadmissible hearsay. The federal rules of eviden ce, however, do not apply in immigration proceedings. Solis v. Mukasey , 515 F.3d 832, 835-36 (8th Cir. 2008). Hearsay evidence is therefore admissi ble if it "'is probative and its admission is fundamentally fair.'" Id. at 836 (quoting Nyama v. Ashcroft , 357 F.3d 812, 816 (8th Cir. 2004)). The government's evidence is undoubtedly probative as it addresses the assertion that Kim was not eligible to receive his green car d and received it from Sustaire only through bribery. While only one document directly links Kim to Sustaire, the remaining documents put the bribery scheme in contex t. Further, Agent Brown was active with-5- the Sustaire investigation, which involve d about 340 immigration cases. Thus, Agent Brown's testimony on the matter is certainly probative.

In addition to being probative, eviden ce must be fundamentally fair to be admissible. The evidence in th is case was either part of the public record of a trial, given under oath, or presumptively reliable as produced by public officials during the ordinary course of their duties. Instead of stating why this evidence is untrustworthy, Kim attempts to show a due process vi olation by arguing that hearsay evidence in general is inherently unreliabl e and that he must be ableto cross-examine witnesses. However, this is not enough to show that admitting the evidence is fundamentally unfair because hearsay evidence is not per se inadmissible in immigration cases as violative of due process. Id. In each case Kim cites to the contrary, the hearsay evidence was inadmissible based on specific facts, not because hearsay is generally unreliable. Anim v. Mukasey , 535 F.3d 243, 257 (4th Cir. 2008) (declarants were foreign officials who had "powerful incentiv es to be less than candid"); Ezeagwuna v. Ashcroft , 325 F.3d 396, 406 (3d Cir. 2003) (multiple levels of hearsay and the first and second declarants we re unknown); Murphy v. INS , 54 F.3d 605, 610-11 (9th Cir. 1995) (holding the I-213 form inadmissible as unreliable because alien disputed content and provided specific evidence to th e contrary). In this case, Kim has provided no basis upon which to doubt the accuracy of the evidence in question beyond generalizations regardi ng the unreliability of hearsay evidence. Thus, the IJ did not err in admitting the evidence.

B. Kim's Status as an Arriving Alien and 8 U.S.C. § 1256(a)

We next address Kim's assertion that 8 U.S.C. § 1256(a) barred these removal proceedings. Kim states that if "the gove rnment believes that permanent residence status was improperly conferred, the immigr ation laws include a statutory procedure to rescind adjustment of status, under 8 U.S.C. § 1256(a)." Further, Kim argues that because that section includes a five-year st atute of limitations, the government's action4 Garcia v. Attorney General , 553 F.3d 724 (3d Cir. 2009); Bamidele v. INS , 99 F.3d 557 (3d Cir. 1996).
-6- is time-barred. Kim asks us to adopt the Third Circuit's view 4that this limitations period applies to removal proceedings, not just rescission of status adjustments, because otherwise "anyone the government believed was adjusted improperly would instantly be deprived of their status and subject to immediate removal." We decline to do so.

Section 1256(a) states:

If, at any time within five years af ter the status of a person has been otherwise adjusted . . . to that of an alien lawfully admitted for permanent residence, it shall appear to the satisfaction of the Attorney General that the person was not in fact eligible for such adjustment of status, the Attorney General shall rescind the action taken granting an adjustment of status to such person and cance lling removal in the case of such person if that occurred and the person shall thereupon be subject to all provisions of this chapter to th e same extent as if the adjustment of status had not been made. Nothing in this subsection shall require the Attorney General to rescind the alie n's status prior to commencement of procedures to remove the alien unde r section 1229a of this title, and an order of removal issued by an immigration judge shall be sufficient to rescind the alien's status.

8 U.S.C. § 1256(a).

On its face, § 1256(a) only discusses the fi ve-year statute of limitations in terms of rescinding a status adjustment, and sin ce 1962 the Attorney Gene ral has interpreted that section to only apply to the resci ssion of status adjustments, not removal proceedings. Asika v. Ashcroft , 362 F.3d 264, 269 (4th Cir. 2004) (per curiam) (citing Matter of S– , 9 I. & N. Dec. 548, 548 (Att'y Gen. 1962)). Supporting the Attorney General's interpretation, § 1256(a) was amended in 1996 to add the-7- following sentence, "[n]othing in this subs ection shall require the Attorney General to rescind the alien's status prior to comme ncement of procedures to remove the alien . . . and an order of removal issued by an [I J] shall be sufficient to rescind the alien's status." 8 U.S.C. § 1256(a). This amendmen t makes clear that the legislature viewed rescission and removal as se parate, and applied the fi ve-year limitations period to rescission only. See also Garcia , 553 F.3d at 729-31 (Fuentes, J., dissenting) (noting the 1996 amendment "confirms that the five-year bar is meant to apply only to rescission proceedings" and "indicates thatCongress does not view rescission and removal as equivalent s"); Oloteo v. INS , 643 F.2d 679, 682-83 (9th Cir. 1981) (holding Congress "plainly, unequivocally and unambiguously" meant to apply the five-year limitations period to rescission only).

To the extent there is any doubt as to th e plain meaning of the statute, we defer to the Attorney General's interpretation of the statute where such an interpretation is not unreasonable. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 843-44 (1984); see also Asika , 362 F.3d at 269. As stated above, § 1256(a) does not limit removal to the five-year limitations period on its face, and the section "govern[ing] deportation refer[ s] neither to [§ 1256(a)] nor the statute of limitations that it purportedly creates, nor, for that matter, to any time limitation on deportation at all." Asika , 362 F.3d at 269. Thus, it is not unr easonable for the Attorney General to interpret § 1256(a)'s five-year statute of limitations to apply to rescission only.

Having concluded that the government's action is not time-barred by § 1256(a), we turn to Kim's assertion that "he was found removable as an inadmissible arriving alien, without requiring the government to prove by clear, unequivocal, and convincing evidence that he was not a Pe rmanent Resident." Relying on 8 U.S.C. § 1101(a)(13)(C) and 8 C.F.R. § 235.3(b)(5 ), Kim alleges he was denied the presumption that he was a returning United St ates resident, treated as an arriving alien, and therefore "stripped [] of the procedural protections afforded to U.S. residents." We disagree.5 In his brief and at oral argument Kim posits, citing Berenyi v. INS , that the required standard is "clear, unequivocal , and convincing evidence." 385 U.S. 630, 636-37 (1967) (emphasis added). This st andard, however, applies only to the deportation of persons whose "citizensh ip [is] already acquired." Id. at 636. The "unequivocal" standard has not been usedand does not apply when addressing the preliminary question of whether citizenship has been lawfully acquired in the first place.
-8- Section 1101(a)(13)(C) appl ies only to "[a]n alien lawfullyadmitted for permanent residence," and 8 C.F.R. § 235.3(b)(5) applies only to claims of " lawful permanent resident . . . status." 8 U.S.C . § 1101(a)(13)(C) (empha sis added); 8 C.F.R. § 235.3(b)(5) (emphasis added). Thus, Kim is only entitled to the presumption of being a returning United States resident and not an arriving alien if he was a lawful permanent resident. In addressing this i ssue, the IJ held by "clear and convincing evidence" that Kim "[wa s] not a lawful permanent reside nt of the United States." The IJ did so only after considering the government's evidence and stating "that the evidence is clear and convincing" that a "l egally and factually baseless immigration record was fraudulently created for the purpose of improperly issuing [] a [green card]." Kim admits in his brief that "[h]e would [] be subject to removal only if the government could prove to the required sta ndard that his status was not lawfully conferred." The IJ, however, did in factfind that the government proved to the required standard 5 that Kim's status was not lawfu lly conferred, and therefore did not err in treating Kim as an arriving alien.

Having correctly designated Kim an arrivi ng alien, and not a returning resident, the IJ held Kim removable under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I). These sec tions address "aliens who are inadmissible . . . and ineligible to be admitted to the Unite d States." 8 U.S.C. § 1182(a). Section 1182(a)(6)(A)(i) declares an alien who is inthe United States "without being admitted . . . is inadmissible." Further, § 1182(a)(7)(A)(i)(I) states an alien is inadmissible if he does not possess the proper documentation. In this case, Kim did not possess the-9- proper documentation because his green card was not lawfully conferred and he was not lawfully admitted to be in the United States. Thus, the IJ did not err in holding Kim removable under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I).

C. Cancellation of Removal Proceedings

Finally, Kim claims to have establis hed eligibility for cancellation of the removal proceedings under 8 U.S.C. § 1229b(a) . Pursuant to § 1229b(a), the removal of an alien may be canceled if three conditi ons are met. First, the alien must have been "lawfully admitted for permanent reside nce for not less than 5 years." 8 U.S.C. § 1229b(a)(1). Second, the alien must havelived in the United States continuously for seven years after being ad mitted in any status. Id. § 1229b(a)(2). Finally, the alien must not have been convicted of an aggravated felony. Id. § 1229b(a)(3). The IJ determined that Kim did not qualify for cancellation because he was not lawfully admitted for permanent residence as his green card was fraudulently obtained. On appeal, however, Kim asserts the governmentfailed to prove "that Kim lacked the qualifications for Permanent Resident st atus at the time he was approved."

Kim's assertion that the government failed to prove he would not qualify for Permanent Resident status confuses the i ssues. Section 1229b(a) asks whether the alien " has been . . . lawfully admitted for permanent residence," not whether the alien could have been lawfully admitted. Id. § 1229b(a)(1) (emphasis added). The IJ found, based on the government's evidence, that Kim's green card was obtained by fraud and that he, therefore, had not been lawfully admitted for the requisite five years and did not qualify for § 1229b(a) relief. SeeArellano , 429 F.3d at 1187; In re Koloamatangi , 23 I & N Dec. 548, 550 (BIA 2003). Thus, Kim was not eligible for cancellation because he was not lawfu lly admitted for permanent residence.

Kim's attempt to di fferentiate Arellano and Koloamatangi on the grounds that the government has not shown he "lacked th e qualifications" for the green card fails.-10- Neither Arellano nor Koloamatangi required a showing that the alien both procured his green card via fraud and did not otherwise qualify for the green card. Rather, when an alien obtains a green card via fraud, that alien is not lawfully admitted for permanent residence and is not entitled to relief under § 1229b(a), even if the alien would have otherwise qualified for th e green card notwithstanding the fraud.

Nevertheless, the BIA specifically addre ssed this issue and found that Kim did not qualify for a green card when it was issued to him. As the BIA correctly noted, an alien seeking a status adjustment in1992 was required, am ong other things, to present a labor certification and have a me dical examination pe rformed. 8 U.S.C. § 1182(a)(5) (1992); 8 C.F.R. §§ 212.8, 245.5 ( 1992). Kim, by his own admission, did not possess a labor certificate and did not have a medical examination performed. Thus, even though the government was not re quired to show Kim did not qualify for a green card notwithstanding the fraud, it is evident from the recordthat Kim did not, in fact, qualify.

III. CONCLUSION

For the foregoing reasons, we deny Kim's petition for review.

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