U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 leesburg Pike, Suile 2000 Falls Church. Virgi11ia 20530

Kim, Jung-Hoon Samuel Attorney at Law 8860 Columbia 100 Parkway Suite 307 Columbia, MD 21045-0000

OHS/ICE Office of Chief Counsel - WAS 500 12th St., SW, Mail Stop 5902 Washington, DC 20536

Immigrant & Refugee Appellate Center | www.irac.net

Name: KIM, KWANG SOO

A 097-971-951

Date of this notice: 2/25/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DOYl.ltL caAAJ
Donna Carr Chief Clerk

Enclosure Panel Members: Manuel, Elise

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Userteam: Docket

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Cite as: Kwang Soo Kim, A097 971 951 (BIA Feb. 25, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 20530

Decision of the Board oflrnmigration Appeals

File:

A097 971 951 - Arlington, VA

Date:

In re: KWANG SOO KIM

FEB 2 5 2014

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Jung-Hoon Samuel Kim, Esquire

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APPLICATION: Voluntary departure

The respondent, a native and citizen of South Korea, has filed an appeal from the Immigration Judge's written decision dated June 27, 2012. That decision ordered the respondent's removal from the United States and cancelled a master hearing scheduled for August 28, 2012, based on the lnnni gration Judge's finding that the respondent "did not submit any applications for alternative relief' from removal. Immigration Judge for further proceedings. Considering the circumstances presented in this case, we agree with the respondent that the Immigration Judge should have given him an opportunity to apply for voluntary departure, particularly since the respondent appeared pro se at his prior (January 24, 2012) hearing before the Immigration Judge (Respondent's Appeal Brief at 6-9; Tr. at 6-21). See generally Matter of C-B-, 25 I&N Dec. 888 (BIA 2012). Accordingly, we will remand the record to the Immigration Judge to afford the respondent an opportunity to seek voluntary departure and give him the pertinent advisals, if that form of relief is granted. entered. ORDER: The record is remanded to the Immigration Court for further proceedings Accordingly, the following order shall be We will remand the case to the

consistent with the foregoing opinion and for the entry of a new decision.

l. (\

Cite as: Kwang Soo Kim, A097 971 951 (BIA Feb. 25, 2014)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW United States Immigration Court 901 North Stuart Street, Suite 1300 Arlington, VA 22203 IN THE MATTER OF:

) ) ) )
.

IN REMOVAL PROCEE DINGS

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KIM, Kwang Soo

File No. A 097-971-951

Respondent

) )

CHARGE:

Section 237(a)(l)(C)(i) of the Immigration and Nationality Act ("INA" or "Act"), as amended, as an alien who after admission as a nonimmigrant under Section 10l(a)(l5) of the Act failed to maintain or comply with the conditions of the nonimmigrant status under which he was admitted, by remaining in the United States longer than permitted.
APPEARANCES

FOR THE RESPONDENT:

FOR THEDHS:

Sang Keun Park 7617 Little River Twnpike, Suite 930 Annandale, VA 22003

MaryEllen Kelly Assistant Chief Counsel Department of Homeland Security 901 North Stuart Street, Suite 708 Arlington, VA 22203
DECISION AND ORDER

I.

FACTUAL AND PROCEDURAL HISTORY

On July 10, 2000, the United States Citizenship and Immigration Services ("USCIS") approved a Petition for Alien Worker, Form I-140 on behalf of the respondent. The respondent failed to pursue adjustment of status within one year of the petition's approval. On August 4, 2003, the petition was terminated in accordance with 203(g) of the Act. On August 4, 2003, the respondent was admitted to the United States six months. He remained in the United States without authorization.
as

a B-2

nonimmigrant visitor for pleasure with authorization to remain for a period not to exceed

On December 12, 2003, the respondent filed an Application for Permanent Residence, Form I-485, with USCIS. On June 2, 2006, USCIS denied the respondent's application because the petition had been terminated and there was no underlying basis from which to adjust status. On June 26, 2006, the respondent filed a Motion to Reconsider, which was resubmitted on July I 0, 2006 after the first motion lacked the correct filing fee. The respondent claimed that he received notice of the petition's approval on November 16, 2003 and that he never received notice of its termination. On August 23, 2006, USCIS denied the Motion to Reconsider on the ground that the motion was untimely and that the respondent did not demonstrate to the satisfaction of USCIS that the delay was reasonable and beyond his control. On September 27, 2006, the respondent filed a Notice of Appeal to the Administrative Appeal Office (AAO), Form 1-290B. On July 1, 2008, the AAO dismissed the appeal for lack of jurisdiction over applications for adjustment of status or motions to reopen the denial of an adjustment of status. lack of jurisdiction. On January 16, 2009, the DHS issued a Notice to Appear ("NT A") charging Respondent as removable under 237(a)(l)(C)(i). removability. On May 18, 2010, according to the

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On March 20, 2007, the

respondent filed a second appeal to the AAO. The AAO also dismissed this appeal for

prior judge's notes, the respondent admitted the allegations and conceded the charge of

On December 28, 2009, the respondent filed a Request for Reinstatement of the 1-140 based on Extraordinary Circumstance with the National Visa Center. On February 17 or Feb 18, 2011, the respondent filed a third Motion to Reconsider. On June 9, 2011, USCIS denied the respondent's third Motion to Reconsider and affirmed denial of the respondent's Application for Permanent Residence. USCIS found that denial of the respondent's application must stand because the respondent did not prove that the prior decision was incorrect based on the evidence of record at the time of the initial decision. II. DISCUSSION As the respondent has admitted and conceded the charge of removability, the Court finds the respondent removable under 237(a)(l)(C)(i). The respondent contends that his adjustment of status application was improperly denied by USCIS because he did not receive notification of the termination of his I-140 petition. USCIS has jurisdiction over employment petitions. See 8 C.F.R. 204. S(b). The record indicates that the 1-140 was terminated on August 3, 2003 before the respondent filed his Application for Adjustment of Status. The record indicates that the respondent has attempted various times to reopen his case with USCIS and appeal to the

AAO. The record confirms that as of June 9, 2011, the respondent's Motion to Reopen/Reconsider and Application to Register for Permanent Residence have been denied. The respondent did not submit any applications for alternative relief. Therefore, I find that the respondent has not met his burden to establish that he has satisfied the eligibility requirements for relief or protection from removal. INA 240(c)(4). Accordingly, the Court enters the following order:
ORDER It Is Ordered that:

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The respondent be REMOVED to South Korea.

It Is Ordered that:

The respondent's hearing scheduled for August 28, 2012 be CANCELLED.

Thomas G. Snow U.S. Immigration Judge