You, Justin, Esq.

You & Associates

40 W. 37th Street, Suite 4028
New York, NY 10018
Name: KIM, Ml JUNG
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leesburg P;ke, Suite 2000
Fa/s Church, Virginia 20530
OHS
/
ICE Office of Chief Counsel - NYC
26 Federal Plaza, 11th Floor
New York, NY 10278
A 098-768-57 4
Date of this notice: 9/
18
/
2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Donovan, Teresa L.
Sincerely,
DO c a
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Mi Jung Kim, A098 768 574 (BIA Sept. 19, 2014)
U.S. Department of Justice
Executive Offce. fr Immigation Review
Decision of the Boad of Immigation Appeals
Falls Chuch, Virginia 20530
File: A098 768 574 - New York, NY
In re: MI JUNG KIM
IN REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RSPONDENT: Justin You, Esquire
CHARGE:
Notice: Sec. 237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] -
In the United States i violation of law
APP LI CATION: Adjustment of sttus
Date:
SEP 1 S 2Q4
The respondent, a native and citizen of South Korea, has appeaed fom an Immigration
Judge's Mach 6, 2013, decision denying his application fr adjustent of status. The
Departent of Homeland Security ("DHS") has not fled a response to the respondent's appeal.
The appeal wll be sustained, ad the record will be remaded.
We review an Immigration Judge's fctual fndings fr clear eror. 8 C.F.R.
1003.l(d)(3)(i). We review all remaning issues, including issues of law, discretion, and
judgent, de novo. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent was admitted to the United States a a nonimmigrant visitor on August 30,
2004, wit authorization to remain until Febray 28, 2005. On Janua 14, 2005, Healthpro
Staffng, Inc. fled a Immigation Petition fr Alien Worker (orm 1-140) on behalf of the
respondent with Unted States Citizenship and Immigration Serices ("USCIS"). The respondent
simultaeously fled an Application to Register Permanent Residence or Adjust Status
(Form 1-485) prior to the expiration of her nonimmigrant visa (I.J. at 2). While USCIS approved
the 1-140, it denied the respondent's ajustment application because she did not submit the
cerifcation required under section 212(a)(5)(C) of the Immigration ad Nationality Act,
8 U.S.C. 1l82(a)(5)(C) (an alien seekng entry to perfr labor as a health-care worker other
than a physician must present a certifcate fom the Commission on Graduates of Foreign
Nursing Schools or equivalent in order to be admissible); see also section 245(a) of the Act.
On March 13, 2006, the respondent fled a second I-485 with USCIS, which was denied on
August 11, 2006, under section 245( c )(2) of the Act fr filing to maintain continuously lawfl
status. On October 30, 2006, the respondent fled a third 1-485. USCIS denied the application
on September 12, 2007, fnding that she filed to maintin contiuously a lawfl status and that
she was ineligible fr a section 245(k) waver of the requirements of section 245( c) because she
failed to maintain continuously a lawl status fr more than 180 days. The respondent fled
a furt I-485 on April 25, 2008, but withdrew te application on October 13, 2009.
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Cite as: Mi Jung Kim, A098 768 574 (BIA Sept. 19, 2014)
A098 768 574
In removal proceedings, the respondent requested tat the Immigration Judge review de novo
her initial For I-485, which was fled in January 2005, while she was still in a valid
nonimmigrat sttus. The DHS fled a motion to preterit the application, argng that she did
not have a visa imediately available to her at te time of her initial application ad tat her
accrual of unlawl status renders her ineligible fr adjustment of status uder section 245( c) of
the Act. The Immigration Judge concluded tat he is limited to reviewing the most recently
denied adjustment of status application, not the initial application (l.J. at 4). He held that the
most recent application was properly denied because the respondent is not cur ently in lawfl
status ad has accrued a period of unawl presence that may not be waived under section
245(k) of te Act (I.J. at 4-5).
On appeal, the respondent argues tat the Immigration Judge cited no legal authority fr his
fnding that he must review te most recently denied 1-485 application. Furer, she agues that
under 8 C.F.R. 1245.2(a)(5)(ii) te Immigration Judge should have reviewed her initial I-485
fled in 2005, which was properly fled, and should have considered it to be a renewed,
continuing adjustent application rater tha a new application. According to te regulation,
when an applicant renews an adjustent application in removal proceedings, te applicant does
not need to meet the satutory requirement of section 245( c) of the Act [continuous lawfl
status], or 1245.l(g) [visa availability], if, in fct, those requirements were met at te time te
renewed application was initially fled wt the director." 8 C.F.R. 1245.2(a)(5)(ii).
We agree with the respondent's appellate argument. We will remand the case fr the
Immigration Judge to consider wheter the respondent ca beneft fom 8 C.F.R.
1245.2(a)(S)(ii). To beneft fom tis regulation, te respondent must establish tat she is
"renewing" her adjustment application in removal proceedings. We have held that a application
may be considered "renewed'' only when it is based on the sae fcts ad reviewed according to
circumstances a they existed when the original application was fled. Matter of Laik, 17 I&N
Dec. 445 (BIA 1980); see also Matter of Huang, 16 I&N Dec. 362.1 (BIA 1978) (holding that
when an alien renews a adjustment application in proceedings the resubmited application must
be based on te same fcts ad circumstances as existed with te original application). We
explained that a adjustment application will be treated as new, not renewed, ifte applicant was
stattorily ineligible fr adjustment based on te circumstances as they existed when te
application was originally denied by USCIS; ad if the present application is based on
circumstaces which have occured since the denial. See also Brito v. Muksey, 521 F.3d 160
(2d Cir. 2008) (fr purposes of 8 C.F.R. 1245.2(a)(l)(ii), fnding that te Immigration Judge
had no jurisdiction over aving alien's adjustment application because it was a new application,
rather tha renewed, a it was predicated on a visa petition fled by a diferent United States
citizen spouse). On remand, te Immigration Judge should mae specifc fndings of fct as to
wheter the renewed application should be teated as a new application or a renewed one.
In this case, the respondent's adjustent application was originally denied because she was
fud inadmissible uder section 212(a)(S)(C) of the Act fr fng to submit the requisite
certifcation. Te Immigration Judge determined that, despite te DHS' contary assertion,
a visa was available to the respondent at the time as required by 8 C.F.R. 1245.l(g)
(l.J. at 5 n.6). The respondent has provided a cerifcation. See Respondent's Pre-hearing Brief
at Exhibit H. Unlike Laike and Huang, supra, there is no idication that te respondent was
2
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Cite as: Mi Jung Kim, A098 768 574 (BIA Sept. 19, 2014)
A098 76.8 574
ineligible fr the visa classifcation sought. Moreover, the respondent was in a valid
nonimmigrat status when the frst 1-485 was fled. Unlike Brito v. Muksey, supra, tere is no
indicaton tat the resubmitted adjustment application was predicated on a new visa petition.
Rater, her ineligibility fr adjustment was based on her inadmissibility under section 212(a) of
te Act.
We have long held tat an application fr adjustent of status is a continuing one, such tat
"admissibility is deterined on the bais of te fcts ad the law at the time the application is
fnally considered." Matter of Alarcon, 20 I&N Dec. 557, 562 (BIA 1992). Therefre, we do
not consider the respondent's resubmited adjustent application as new solely because of
a chage in circumstaces related to her admissibility. Fuher, nothing in the regulations
indicates that an Immigation Judge's ordinay power and duty to receive evidence and
adjudicate applications fr adjustent of status is diminished or restricted when the application
is renewed i removal proceedings. Matter of Herrera Del Orden, 25 I&N Dec. 589, 593
(BIA 2011).
Additionally, at the time of adjustent, te applicant must show the continued existence of
a ofer of employment as set fr in te 1-140 ad must demonstate a intent to accept the
ofer of employment. Tus, we fnd it necessa to remand te record to the Immigation Judge
fr specifc fndings of fct to deterine whether the respondent's resubmitted adjustment
application fom 2005 should be teated as a renewed application, whether she can show the
continued existence of an ofer of employment as set frh in the I-140 and whether she can meet
ay other eligibility requirements. As such, we need not address the respondent's remaining
aguments on appeal.
Accordingly, the fllowing orders ae entered.
ORER: Te respondent's appeal is sustaned.
FURTR ORDER: The record is remanded fr fher proceedings consistent with the
fregoing opinion ad fr te entry of a new decision.
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Cite as: Mi Jung Kim, A098 768 574 (BIA Sept. 19, 2014)


UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
26 FEDER PLAZA
NEW YORK, NEW YORK
File No.: A098-768-574
In the Matter of:
KIM, Mi Jung,
Respondent.
CHARGE: INA 237(a)(l)(B)
IN REMOVAL PROCEEDINGS
MOTION TO PRETERMIT
Remained in the United States Longer than
Permitted
APPLICATION: INA 245(a), Adjustment of Status
ON BEHALF OF RSPONDENT
Justin J. You, Esq.
You & Associates
130 West 42n
d
Street, Suite 702
New York, New York 10036
ON BEHALF OF THE DEPARTMENT
Dara Faith Reid, Assistant Chief Counsel
DHS/ICE, Ofce of Chief Counsel
290 Broadway
New York, New York 10278
DECISION OF THE IMMIGRATION JUDGE
Mi Jung Kim ("Respondent'') seeks to adjust her status to that of a lawfl permanent
resident ("LPR") based on an approved I-140 employment petition. The Department of
Homeland Security ("the Department") moves to pretermit Respondent's application to adjust
her status, arguing that she is ineligible fr that relief For the reasons that fllow, the Court
grants the Department's motion to pretermit and issues a fnal order of removal.
I. STATEMENT OF FACTS
Respondent is a fmale native and citizen of South Korea. [Exh. l .] She was admitted to
the United States at New York, New York, as a nonimmigrant visitor on August 30, 2004, with
permission to remain until February 28, 2005. Id. She remained beyond that date.
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On September 10, 2007, the Depaent served Respondent with a Notice to Appear
("NTA"), chaging her as removable under IA 237(a)(l)(B). Id. At a hearing befre the
Immigration Court, Respondent, through counsel, admitted the fctual allegations contained in
the NT A and conceded the charge of removability. Removability has therefre been established
based on Respondent's admissions. See INA 240(c)(3); 8 C.F.R. 1240.8, 1240.lO(c).
South Korea was designated as the country of removal. See INA 24l(b)(2).
From 2005 tough 2009, Respondent fled a total of fur Form 1-485 Applications to
Adjust Status with United States Citizenship and Immigration Services ("USCIS"). Respondent,
a nurse, sought to adjust her status on the basis of on an approved Form 1- 140, Immigrant
Petition fr Alien Worker, as a skilled worker or profssional under INA 203(b)(3)(A)(i). She
fled her frst Form 1-485 on January 14, 2005, prior to the expiration of her nonimmigant visa.
On February 24, 2005, USCIS requested that Respondent submit her required Visa Screen
Certifcate, pursuant to 8 C.F.R. 212. 15{e)(l).
1
On May 20, 2005, and September 27, 2005,
Respondent requested additional time to fle this certifcate. On November 9, 2005, USCIS
denied her frst I-485 application because she filed to provide the required certifcate. As a
result, USCIS fund her inadmissible to the United States, and thus, ineligible to adjust status.
See INA 212(a)(5)(C), 245(a).
Respondent fled her second and third 1-485 applications on March 17, 2006, and October
30, 2006, respectively. USCIS denied these applications because she had filed to continuously
maintain lawfl nonimmigrant status. See INA 245(c). USCIS frther determined that
Respondent did not qualif fr a waiver under INA 245(k), because she filed to maintain her
status fr more than the allowable 180 days.
Respondent fled her furth 1-485 application on April 25, 2008. She obtained her Visa
Screen Cerifcate in December 2008. On January 7, 2009, a diferent Immigration Judge
terminated Respondent's removal proceedings to allow USCIS to adjudicate that most recent
application. See IJ Order (Jan. 7, 2009). However, Respondent withdrew her furth 1-485
application on October 13, 2009.
2
In June 2011, the Department fled a motion to recalendar
Respondent's proceedings, and the case was referred to the undersigned.
On December 13, 2012, the Department fled a motion to pretermit Respondent's
adjustment of status application. The issue befre the Court is whether, upon de nova review of
Respondent's initial Form I-485, Respondent may adjust her status. At the close of the last
hearing, both parties agreed that Respondent was not seeking any frms of relief other than
adjustment of status.
1 A "Visa Screen Certifcate" refrs to a certifcate fom the Commission on Graduates of
Foreign Nursing Schools. See INA 212(a)(5)(C).
2 There was some confsion during the proceedings regarding a USCIS clerical error. Indeed, at
one point USCIS sent Respondent a letter identifying her as an LPR. However, afer the Court
directed the Department to produce evidence showing whether this letter was issued in error, it
ofered a letter refecting that Respondent is not now, and has never been, an LPR.
2
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II. ADJUSTMENT OF STATUS: BASIC STANDARDS
The status of an alien who was inspected and admitted or paroled into the United States
may be adjusted to that of an alien lawflly admitted fr permanent residence if she: ( 1) applies
fr adjustment; (2) is eligible to receive an immigrant visa and is admissible to the United States
fr permanent residence; and (3) an immigrant visa is immediately available to her at the time
her application is fled. INA 245(a). If eligibility is established, adjustment of status may be
granted in the exercise of discretion. Matter of Arai, 13 I&N Dec. 494 (BIA 1970). The alien
bears the burden of establishing eligibility fr adjustment of status and demonstrating that relief
is merited in the exercise of discretion. See Matter of Ibrahim, 18 l&N Dec. 55 (BIA 1981 ).
For employment-based applicants, IA 245(c) places frther restrictions on the classes
of aliens who are eligible to adjust their status. Pursuant to IA 245(c)(2), an alien "who is in
unlawfl immigration status on the date of fling the application fr adjustment of status or who
has filed (other than through no fult of her own or fr technical reasons) to maintain
continuously a lawful status since entry into the United States" is ineligible to adjust her status to
that of an LPR. See also Matter of L-K, 23 l&N Dec. 677 (BIA 2004). However, under INA
245(k), the restrictions contained in IA 245(c)(2) are inapplicable to cerain employment
based immigrants, including, inter alia, skilled workers and profssionals under IA 203(b)(3).
Section 245(k) states that, notwithstanding sections (c)(2), (c)(7), and (c)(8), an alien who is
eligible to adjust under paragraphs (1), (2), or (3) of section 203(b) may have her unlawfl
presence waived if: l) on the date of fling a application fr adjustment of status, she is present
in the United States pursuant to a lawful admission; and 2) subsequent to that lawfl admission,
she has not, inter alia, faled to maintain continuously lawfl status fr an aggregate period
exceeding 180 days. The 180-day counting period begins on the date on which the alien's status
expires, is revoked, or is violated fllowing the alien's most recent admission. See USCIS
HQDOMO 70/23. 1-P AD06-07 memorandum on Applicability of Section 245(k) to Certain
Employment-Based Adjustment of Status Applications fled under section 245(a) of the INA.
The counting of this 180-day period ceases on the date USCIS receives a properly fled
application. Id. Moreover, when a frst adjustment application is denied and a second
application is fled, the period after which the alien's nonimmigrant status expired and during
which the frst application was pending counts against the 180-day period. Id.
If USCIS ha denied an adjustment application, the alien can obtain frther review only
by renewing the application during removal proceedings, whereupon the Immigration Judge can
conduct de novo review. See 8 C.F.R. 1245.2(a)(5)(ii). At the time of renewal of the
application, the alien does not need to meet the statutory requirements of INA 245(c) or 8
C.F.R. 245. l(g),
3
if those requirements were met at the time the renewed application was
initially fled with USCIS. k 4 Respondent argues that because she was in lawfl status at the
3 8 C.F.R. 245.l(g) requires an immigrant visa be available at the time of fling the adjustment
application.
4 8 C.F.R. 245.2(a)(5)(ii) provides: "At the time of renewal of the application, an applicant
does not need to meet the statutory requirement of section 245(c) of the Act, or 245. l(g), if, in
fct, those requirements were met at the time the renewed application was initially fled with the
director."
3
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time she fled her earliest Form 1-485, INA 245(c) does not prevent her fom adjusting her
status.
III. FINDINGS AND CONCLUSIONS OF THE COURT
A. Arguments of the Parties
Respondent seeks to renew befre the Court the frst 1-485 application she fled with
USCIS in January 2005. She argues that INA 245(c) does not render her ineligible fr
adjustment of status because she was in a valid nonimmigrant status at the time that initial
application was fled. Specifcally, she points to the language of 8 C.F.R. 1245.2(a)(S)(ii), and
contends that "if an applicant overcame all INA 245(c) bars fr adjustment of status at the time
of the initial fling, then at a de novo review of the same application, the applicant does not need
to once again meet or satisf INA 245(c) at a later date." See Respondent's Response, received
January 10, 2013, at 5. Respondent argues in the alterative that she qualifes fr INA
245(k) relief because users miscalculated her aggregate period of unlawfl presence when it
denied her second and third applications. See Respondent's Memorandum of Law, received
July 6, 2012, at 3-5. Lastly, she suggests that her initial application was properly fled with
users notwithstanding her filure to provide a Visa Screen Certifcate because 8 C.F.R.
212.15(n)(3)
5
requires only that the certifcate be provided at the time of adjustment.
The Department contends that Respondent is ineligible fr adjustment of status because
she did not have a visa immediately available to her at the time she fled her initial 1-485
application. See The Department's Motion, received December 13, 2013. The Department
frther argues that Respondent is currently ineligible fr adjustment of status befre the Court
due to her accrual of unlawfl status pursuant to INA 245(c). Id. Lastly, it characterizes
Respondent's argument that the Court is permitted to conduct a de novo review of her initial
application as "an illogical conclusion that would bring about incongruous results" allowing her
to "maintain status into perpetuity." Id. at 4.
8. Analysis
Respondent asks the Court to review de novo her frst denied 1-485 application.
However, the Court is limited in its review to the most recently denied application. That latter
application was properly denied because Respondent is not now in lawfl status and has accrued
a period of unlawul presence that may not be waived. Even if the Court could review
Respondent's frst denied application, that application was properly denied because Respondent
did not present the required Visa Screen Certifcate. To the extent Respondent asks the Court to
essentially nunc pro tune the Visa Screen Certifcate to the frst 1-485 application, the Court fnds
no authority to do so.
5 8 C.F.R. 2 l 2.15(n)(3) provides: HAn alien described in paragraph (a) of this section, who is
coming to the United States as an immigrant or is applying fr adjustment of status pursuant to
section 245 of the Act (8 U.S.C. 1255), to perfrm labor in a health care occupation described in
paragraph (c) of this section, must submit the certifcate or certifed statement as provided in this
section at the time of visa issuance or adjustment of status."
4
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1. The Court Reviews Only the Most Recently Denied I-485 Aplication
The Cour fnds that it may only review Respondent's most recently denied I-485
application. 6 While Respondent is correct that she need only meet the requirements of INA
245(c) at the time her renewed application was initially fled with USCIS, the issue here is that
Respondent has fled multiple I-485 applications with USCIS. Respondent wa in lawfl status
until November 9, 2005, when her frst I-485 application was denied. Her lawfl status was then
terminated, ad she bega to accrue unlawfl status at that point. As a result, her unlawfl
presence began to accrue on February 28, 2005, and continued though Mach 17, 2006, when
she fled her second adjustment application. Therefre, she accrued unlawfl presence in excess
of a year, rendering her ineligible to adjust status.
7
INA 245(c)(2); See USCIS HQDOMO
70/23.1-P AD06-07 at 5-6. Moreover, Respondent cannot utilize the provisions of INA 245(k),
as the period she was out of status fr exceeds the allowable 180 days. As a result, the Cour
fnds that IA 245(c) renders Respondent ineligible to adjust status.
2. In the Alterative, Respondent's First 1-485 Aplication was Properly Denied
Even if the Court were to review de novo Respondent's January 2005 1-485 application,
that application was properly denied because she did not present the requisite Visa Screen
Certifcate despite several extensions to allow her to do so. See 8 C.F.R. 212. l 5(e)(I ).
Respondent is correct that under 8 C.F.R. 1245.2(a)(5)(ii), she is not required to meet the
requirements of INA 245(c) or 8 C.F.R. 245.l(g) at the time of renewal befre the Court if
those requirements were qet at the time the application was initially fled. However, she
remains inadmissible under INA 2 l 2(a)(5)(C) fr her filure to submit the requisite certifcate.
In fct, she did not obtain this certifcate until December 2008, well afer she fled her furth
1-485 application. Therefre, she was not eligible to adjust her status. See INA
212(a)(5)(C); 245(a).
3. The Court May Not Give Nunc Pro Tune Efect to the Visa Screen Certifcate
Respondent essentially argues that because she was lawflly present at the time she fled
her frst application, and obtained the required Visa Screen Certifcate while her furh
application was pending, she is eligible to adjust her status. The Court fnds no authority to
support this argument. To fnd that Respondent is eligible to adjust, the Court would have to
give retroactive, or nunc pro tue, efect to the Visa Screen Certifcate that Respondent obtained
6 The Cour notes that in its motion, the Department recites inaccurate fcts with regard to
Respondent's initial application. Specifcally, it states that her Form I-485 was denied due to her
filure to possess a CUtTently available visa. However, users in fct denied her frst adjustment
application fr filue to provide a Visa Screen Cerifcate, as discussed above. The Visa
Bulletin fr January 2005 indicates that Respondent's prefrence category, EB3 Skilled Worker,
was current when fled. See The Respondent's Response, received January 10, 2013, Tab B.
7 Unpublished BIA decisions provide frher support fr the proposition that unlawfl presence
begins to accrue when an alien's nonimmigrant status expires afer her frst adjustment
application is denied. See Matter of Sarmiento, A097-867-848 (BIA Dec. 22, 2010)
(unpublished); Matter of Noh, A096-148-950 (BIA Oct. 18, 2010) (unpublished).
5
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years afer she fled her initial I-485 application. The BIA has recognized instances where nunc
pro tune relief may be appropriate. See e.g., Matter of Ng, 17 I&N Dec. 63 (BIA 1979)
(involving a grant of nunc pro tune permission to reapply fr admission afer deportation); see
also Matter of G-D-, 22 I&N Dec. 1132, 1139 (BIA 1999) ("Thus, Congress and the Attorey
General have entrusted us with considerable latitude to intervene in individual cases where
fndamental firess and the interests of justice so warrant."); 8 C.F.R 1003.lO(b). However,
such equitable relief is limited to circumstances in which it is required to cure some procedural
defct tat rendered Respondent ineligible fr relief. Here, there was no procedural defect.
Rather, Respondent had the opporunity to adjust her status when she fled her frst I-485
application, but could not do so because she filed to obtain the required Visa Screen Cerifcate.
Having filed to obtain this certifcate, she proceeded to fle several new applications fr
adjustment of status, and each was properly denied. Under these circumstances, the Cour fnds
no basis to provide nunc pro tune relief.
Therefre, the Court grants the Department's motion to pretermit her application.
Because Respondent seeks no other relief, the Court orders her removed to South Korea.
Afer a caefl review of the record, the fllowing orders are entered:
ORERS
IT IS HEREBY ORDERED that the Deparment's motion to pretermit Respondent's
application fr adjustment of status is GRANTED.
IT IS FURTHER ORDERD that Respondent be removed fom the United States to the South
Korea on the sustained charge contained in the Notice to Appear.
3 k /t
r
Date:
6
J se B. Christensen
U.S. Immigration Judge
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