Petition for Writ of Certiorari — Kim v. Mukasey (No. 07-923)

Su The

Supreme Court of the Anited States

o

TAE KYONG JKIM.

Petitioner,

Vv

MICHAEL IB. MUKASEY, Atrrorney GENERAL,

Respondent.

4».

Ww

Petition For A Writ Of Certiorari

To The United States Court of

Appeals For The Sixth Circuit

}

PETITION FOR A WRIT OF CERTIORARI

with Appendix

~.

Vv

* Marshal KE. Hyman

Russell R. Abrutyn

MARSHAL E. HYMAN & ASSOCIATES

3250 W. Big Beaver

Suite $29

Troy, MI 48084

Fax 643-0798

248-643-0642

Attorneys for Petitioner

*Counsel of Record

J anuary, 2008

LEGAL ADVANTAGE © 432 Walnut Street © Cincinnati, OH 45202

(800) 581-2252

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Sixth Circuit had jurisdiction to

consider a lawful permanent resident's statutory

and constitutional challenges to the administrative

denial of his cancellation of removal application.

2. Whether Petitioner was convicted of a “crime

of domestic violence” where the state statute

punishes conduct broader than that proscribed by

18 U.S.C. § 16(a).

TABLE OF CONTENTS

pages

Questions Presented ....... ®.

a

Ce PRINCE tt ec ct eee ete

Opinions Below

Jurisdiction

Statement

Reasons For Granting The Writ

I. The Decision of the Sixth Circuit

Conflicts With Those Of Other

Circuits Finding Jurisdiction To Review

Statutory And Constitutional

Challenges To Denials Of Cancellation

~ Of Removal Applications

Il. Petitioner Has Not Been Convicted

Of A Crime Of Violence . .

Conclusion

Appendix

A — Order Denying Rehearing (10/10/07)

B — Circuit Court Opinion (5/31/07)

C — Decision of the Board of Immigration

Appeals (6/16/06)

D — Amendment to Oral Decision of the

Immigration Judge (12/10/04)

E — Decision of the Board of Immigration

Appeals (7/23/02)

F — Oral Decision of the Immigration

Judge (10/11/01)

TABLE OF AUTHORITIES

Cases

Abu-Khaliel v. Gonzales,

436 F.3d 627 (6 Cir. 2006)

Alaka v. Attorney General of U.S.,

456 F.3d 88 (34 Cir. 2006)

Cabrera-Alvarez v. Gonzales,

423 F.3d 1006 (9 Cir. 2005)...... 9,

Flores v. Ashcroft,

350 F.3d 666 (7 Cir. 2003)

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).... 1

Klein v. Long, 275 F.3d 544 (6 Cir. 2001)

Larin-Ulloa v. Gonzales,

462 F.3d 456 (5'* Cir. 2006)

Leocal v. Ashcroft, 543 U.S. 1 (2004)

Mathews v. Diaz, 426 U.S. 67 (1976)

Matter of C-V-T,

22 1.&N. Dec. 7 (BIA 1998)

Matter of Farias-Mendoza,

211.&N. Dec. 269 (BIA 1996)

Matter of Lashkevich,

121. &N. Dec. 22 (BIA 1966)

Morales-Morales v. Ashcroft,

384 F.3d 418 (7 Cir. 2004)

Ortega-Mendez v. Gonzales,

450 F.3d 1010 (9 Cir. 2006)

People v. Terry, 217 Mich. App. 660,

553 N.W.2d 23 (Mich. Ct. App. 1996).... 18

Pickering v. Gonzales,

465 F.3d 263 (6% Cir. 2006)

Popal v. Gonzales,

416 F.3d 249 (34 Cir. 2005)

Santana-Albarran v. Ashcroft,

393 F.2d 699 (G™ Cir. 2005) .....:.... 9, 10

Shepard v. United States, 544 U.S. 13 (2005)... 17

Solano-Chicas v. Gonzales,

440 F.3d 1050 (8'* Cir. 2006) 8, 10, 16

Tran v. Gonzales,

447 F.3d 937 (6™ Cir. 2004)

U.S. v. Landeros-Gonzales,

262 F.3d 424 (5% Cir. 2001)

Statutes

Pages

8 U.S.C. § 1227(aX2E)ai)........ 1, 4,6, 9, 16, 17

8 U.S.C. § 1229a(cK 3A)... 2...

8 U.S.C. § 1229b(a)

8S U.S.C.-$ 1262laX2XB)..........

yth Cee Sy» ©)» ) 1!)

I I gn on os bk wea o 00 08

18 U.S.C. § 16(a)

18 U.S.C. § 16(b)

— Lh SoM De”? ) Ian

Panes ee COU.0na)..........5,6, §

Regulations

8 C.F.R. § 1003.1(d) 3x4) . .

8 C.F.R. § 1003.1(d)(3)iv)

Other Authorities

Pub. L. No. 107-296, 116 Stat. 2135

Tervsee ce:

ere

os Kae eee 5

i, 1,6, 8, 14-15

Pages

.11

-

Pages

PETITION FOR WRIT OF CERTIORARI

Petitioner Tae Kyong Kim _ respectfully

petitions that a writ of certiorari issue to review the

opinion and order of the United States Court of

Appeals for the Sixth Circuit entered in this case on

May 31, 2007, and October 10, 2007, respectively.

The Sixth Circuit, in conflict with the Third,

Seventh, Eighth, and Ninth Circuits, held that it

lacked jurisdiction to review Petitioner’s legal and

constitutional challenges to the denial of his

application for cancellation of removal as a lawful

permanent resident under 8 U.S.C. § 1229b(a).

Moreover, Petitioner’s conviction is not a

“crime of domestic violence,” as defined by 8 U.S.C.

§ 1227(aX2KE)G) and 16 U.S.C. § i6(a) ana,

accordingly, he is not subject to removal.

OPINIONS BELOW

The opinion and orders of the Sixth Circuit

Court of Appeals, App., infra, Al and Bl, are

unreported. The opinions of the Board of

Immigration Appeals, App., infra, Cl and E1, are

unreported. The oral decisions of the Immigration

Judge, App., infra, D1 and F1, are unreported.

STATEMENT OF JURISDICTION

The judgment of the United States Court of

Appeals for the Sixth Circuit, App., infra, B1, was

entered on May 31, 2007. The court denied

Petitioners timely petition for rehearing on

October 10, 2007, App., infra, Al. The jurisdiction

of the Supreme Court is invoked under 28 U.S.C. §

1254(1).

STATUTES INVOLVED

The Immigration and Nationality Act

(“INA”) grants the Attorney General the discretion

to cancel the removal of a lawful permanent

resident who:

(1) has been an alien lawfully admitted for

permanent residence for not less than 5

years,

(2) has resided in the United States

continuously for 7 years after having been

admitted in any status, and

(3) has not been convicted of any aggravated

felony

8 U.S.C. § 1229b(a).

The INA circumscribes judicial review over

agency decisions concerning cancellation of removal

as follows:

2

(B) Denials of Discretionary Relief

Notwithstanding any other provision of law

(statutory or nonstatutory), including section

2241 of Title 28, or any other habeas corpus

provision, and sections 1361 and 1651 of

such title, and except as provided in

subparagraph (D), and regardless of whether

the judgment, decision, or action 1s made in

removal proceedings, no court shall have

jurisdiction to review -

(i) any judgment regarding the granting of

relief under section 1182(h), 1182(i), 1229b,

1229c, or 1255 of this title.

(D) Judicial review of certain legal claims

Nothing in subparagraph (B) or (C), or in any

other provision of this chapter (other tha..

this section) which lhmits or eliminates

judicial review, shall be construed as

precluding review of constitutional claims or

questions of law raised upon a petition for

review filed with an appropriate court of

appeals in accordance with this section.

8 U.S.C. §§ 1252(aX2)(B), (D).

Noncitizens who commit the following types

of crimes are removable:

Any alien who at any time after admission is

convicted of a crime of domestic violence, a

crime of stalking, or a crime of child abuse,

child neglect, or child abandonment is

deportable. For purposes of this clause, the

term “crime of domestic violence” means any

crime of violence (as defined in section 16 of

Title 18) against a person committed by a

current or former spouse of the person, by an

individual with whom the person shares a

child in common, by an individual who is

cohabiting with or has cohabited with the

person as a spouse, by an_ individual

similarly situated to a spouse of the person

under the domestic or family violence laws of

the jurisdiction where the offense occurs, or

by any other individual against a person who

is protected from that individual's acts under

the domestic or family violence laws of the

United States or any Stzte, Indian tribal

government, or unit of local government.

8 U.S.C. § 1227(aX 2) Ei).

A crime of violence means

(a) an offense that has as an element the use,

attempted use, or threatened usc of physical

force against the person or property of

another, or

(b) any other offense that is a felony and

that, by its nature, involves a substantial

risk that physical force agezinst the person or

property of another may be used in the

course of committing the offense.

18 U.S.C. § 16.

Michigan law provides that

(2) Except as provided in subsection (3) or

(4), an individual who assaults or assaults

and batters his or her spouse or former

spouse, an individual with whom he or she

has or has had a dating relationship, an

individual with whom he or she has had a

child in common, or a resident or former

resident of his or her household, is guilty of a

misdemeanor punishable by imprisonment

for not more than 93 days or a fine of not

more than $500.00, or both.

M.C.L. § 750.81(2).

STATEMENT

(i) Nature of the Case

This case presents two important and

recurring questions. The first is to what extent the

courts of appeals have jurisdiction to review the

statutory and constitutional issues raised in a

lawful permanent resident’s challenge to the

administrative denial of his application for

cancellation of removal. The second is whether a

state statute punishing simple assault or assault

and battery is a “crime of violence” under 18 U.S.C.

§ 16(a).

(ii) Factual Background

Mr. Tae Kyong Kim is a 52-year-old citizen of

Korea. He was admitted to the United States as an

immigrant on November 11, 1978 and has since

continuously resided here as a lawful permanent

resident. His four children are native-born United

States citizens.

On March 27, 2000, Mr. Kim pled guilty to

simple assault - domestic violence, in violation of

M.C.L. § 750.81(2). On July 24, 2000, the

Immigration and Naturalization Service (“INS”)!

placed him in removal proceedings by issuing a

Notice to Appear (“NTA”) alleging that he was

subject to removal under 8 U.S.C. § 1227(a)(2)E)(i).

This offense subjected Mr. Kim to removal only

because of the identity of his victim and if it had

1 The Hlomeland Security Act abolished the INS effective

March 1, 2003 and transferred its functions to various

agencies within the Department of Homeland Security. Pub.

L. No. 107-296, 116 Stat. 2135, 2192. The BIA and the

Immigration Court remain part of the Vepartment of Justice.

This petition refers to the INS with respect to actions it took

during its existence and to the appropriate agencies for events

occurring after March 1, 2003.

been committed against a stranger, it would not

have subjected him to removal or inadmissibility.

(iii) Agency Proceedings

In removal proceedings conducted in Detroit,

Michigan, Mr. Kim conceded removability and

applied for cancellation of removal under 8 U.S.C. §

1229b(a). On October 16, 2001, following a merits

hearing, the Immigration Judge (“IJ”) denied his

applications for relief. The JJ found Mr. Kim

statutorily eligible for cancellation of removal and

concluded that he presented considerable positive

equities and had an otherwise approvable case.

App., infra, F1. Still, she denied his claim based on

perceived inconsistencies in the testimony and

what she concluded was Mr. Kim’s false testimony.

Id.

Mr. Kim timely appealed to the Board of

Immigration Appeals (“BIA”). On July 23, 2002,

the BIA remanded the case to the IJ because one of

the hearing tapes was almost completely blank.

App., infra, E1.

The IJ conducted an additional merits

hearing on remand. On December 10, 2004, the IJ

again denied Mr. Kim’s cancellation of removal

application and ordered him removed to Korea.

She noted that she would have granted his

application but for what she perceived was Mr.

Kim’s false testimony. App., infra, D1.

Mr. Kim timely appealed to the BIA. The

BIA adopted and affirmed the IJ’s decision. App.,

infra, C1. The BIA cited Mr. Kim’s 2000 conviction,

his lack of candor at the October 16, 2001 hearing

concerning the state of his marriage, and

insufficient evidence of Mr. Kim’s_” genuine

rehabilitation and remorse. ZId.

(iv) The Sixth Circuit’s Decision

The Sixth Circuit issued summary decisions

denying Mr. Kim’s petitions for review and

rehearing. App., infra, Bl and Al. The court

concluded that it lacked jurisdiction to review the

denial of Mr. Kim’s application for cancellation of

removal.

REASONS FOR GRANTING THE WRIT

The Sixth Circuit’s decision is in conflict with

decisions from the Third, Seventh, Eighth, and

Ninth Circuits. Solano-Chicas v. Gonzales, 440

F.3d 1050, 1054-55 (8t» Cir. 2006); see also Alaka v.

Attorney General of U.S., 456 F.3d 88, 103-104 (34

Cir. 2006); Cabrera-Alvarez v. Gonzales, 423 F.3d

1006, 1009 (9th Cir. 2005); Morales-Morales _v.

Ashcroft, 384 F.3d 418, 421 (7 Cir. 2004). The

court’s decision also conflicts with its own

published decisions concerning the extent of its

jurisdiction. Abu-Khaliel v. Gonzales, 436 F.3d

627, 631, 633-34 (6% Cir. 2006); Santana-Albarran

v. Ashcroft, 393 F.3d 699, 703 (6% Cir. 2005). Ina

similar context, the Court had jurisdiction under

this statute to reverse the BIA’s decision and

remand for reconsideration when the BIA applied

the wrong legal standard and held the noncitizen to

the wrong burden of proof. Tran v. Gonzales, 447

F.3d 937, 943-44 (6th Cir. 2004).

Moreover, Mr. Kim’s conviction for violating

M.C.L. § 750.81(2) is not a “crime of violence” and

therefore does not subject him to removal under 8

U.S.C. § 1227(aX2)E)G). The Michigan statute is

not a crime of violence under 18 U.S.C. § 16(a)

because it can be violated by an unlawful touching

and does not require the use of physical force.

I. The Decision Of The Sixth Circuit

Conflicts With Those Of Other Circuits

Finding Jurisdiction to Review Statutory And

Constitutional Challenges To Denials of

Cancellation Of Removal Applications

Congress has_ specifically provided for

judicial review of the legal and constitutional

questions raised by the denial of Mr. Kim’s

application for cancellation of removal. 8 U.S.C. §

1252(a)(2)(D); Abu-Khaliel, 436 F.3d at 631, 633-34;

Santana-Albarran, 393 F.3d at 703. Thus while 8

U.S.C. § 1252(a)(2)B) deprived the Sixth Circuit of

jurisdiction to review the discretionary denial of

Mr. Kim’s application, section (D) granted the court

the jurisdiction to “consider the predicate legal

question whether the [BIA] properly applied the

law to the facts in determining an individual’s

eligibility” for cancellation of removal. Solano-

Chicas, 440 F.3d at 1054-55 (internal citations

omitted); see also Alaka, 456 F.3d at 103-104

(whether the BIA applied the wrong legal standard

is a question of law); Cabrera-Alvarez, 423 F.3d at

1009 (interpretation of cancellation of removal

statute is a question of law); Morales-Morales, 384

F.3d at 421 (jurisdiction to determine whether the

BIA reviewed a cancellation of removal application

under the correct interpretation of the law).

The agency committed several serious legal

errors in denying Mr. Kim’s application for

cancellation of removal. These legal errors were

material and prejudiced Mr. Kim. The Sixth

Circuit had jurisdiction to review these claimed

errors. The BIA’s ability to deny an application for

cancellation of removal as a matter of discretion is

not boundless and is constrained by Congress, the

regulations, and the BIA’s own precedent.

The BIA, as an appellate body, cannot make

its own findings of fact, other than to take

administrative notice of commonly known facts. 8

C.F.R. §§ 1003.1(d)(3)G), (iv). However, the BIA

went beyond the LJI’s decision to make its own

findings concerning Mr. Kim’s eligibility for

cancellation of removal. The Sixth Circuit had

jurisdiction to review whether the BIA engaged in

impermissible fact-finding and = whether it

evaluated the findings of fact under the proper legal

standard.

The BIA gave three reasons for denying his

application. First, the BIA noted that Mr. Kim’s

conviction is an adverse factor. App. infra, C1.

Second, the BIA referred to Mr. Kim’s lack of

candor over the state of his marriage when he

testified in 2001. Id. Finally, the BIA agreed with

the IJ that Mr. Kim did not submit proof of his

genuine rehabilitation or remorse. /d.

The Department of Homeland Security

(“DHS”) twice noted that on paper, Mr. Kim’s case

appeared to be a “slam dunk grant.” His case is

stronger than the one confronted by the BIA in

Matter of C-V-T, 22 I. & N. Dec. 7 (BIA 1998). Mr.

Kim had a longer period of residency (23 years

versus 15 years), had been convicted of a less

serious offense (domestic violence versus drug

possession), and had substantial family ties to the

United States. See C-V-T, 22 1. & N. Dec. at 13-14.

The IJ misstated the seriousness of Mr.

Kim’s' conviction. She believed that he was

App.,

infra, F1. This is incorrect. Although Mr. Kim was

>

convicted of “aggravated domestic violence.’

charged with assault with a deadly weapon, he pled

guilty to the reduced charge of domestic violence in

violation of M.C.L. § 750.81(2).

Mr. Kim had problems remembering dates

and details or understanding the questions during

his testimony. For example, he did not remember

when he was divorced and repeatedly testified that

he believed it was in 2002, when the objective

evidence showed that it was in 2001. At his second

merits hearing, he did not remember why his wife

was absent from his first hearing, even though he

previously testified, and her passport showed, that

it was because she was in Korea. Being a poor

witness is different from being a poor lawful

permanent resident.

Given his obvious difficulty in testifying, Mr.

Kim clearly did not intend to deceive the IJ about

that state of his marriage at the time of his October

2001 hearing. He and his ex-wife both testified

that although he moved out of the house after she

filed for divorce, he continued to spend a

considerable amount of time there. They tried to

reconcile during that period. His ex-wife testified

that while they were “applying for divorce,” they

briefly got back together.

In violation of its own precedents, the BIA

required Mr. Kim to show rehabilitation or

remorse. See C-V-T, 22 I. & N. Dec. at 12. The

applicant in C-V-T did not’ prove _ actual

rehabilitation or remorse but the BIA noted that he

had only been convicted of one crime in the United

States and he promised to not break the law again.

Id. Mr. Kim was convicted of only one crime in the

United States. He completed 36 weeks of anger

management class and learned to manage and

control his anger and tone. He feels very sorry

about what happened and had learned from his

mistake and promised that he would not hurt

someone else. For the BIA to require additional

evidence is a _ substantial and unreasonable

departure from its prior precedent.

As a long-term lawful permanent resident,

Mr. Kim has a due process right to a full and fair

hearing. Mathews v. Diaz, 426 U.S. 67, 77 (1976).

Mr. Kim has been a lawful permanent resident

since 1978, has four United States citizen children,

including one who is serving in the military, most of

his family lawfully resides in the United States,

and he has been a successful entrepreneur who

created numerous employment opportunities for

American workers. Congress has granted him

eligibility for cancellation of removal.

One of the overriding purposes of American

immigration law is to encourage family unity. “The

plain congressional purpose’ in providing

preferential status for entry of immigrants closely

related to American citizens was to facilitate and

foster the maintenance of families, such as here

involved.” Matter of Lashkevich, 12 I. & N. Dec. 22,

26 (BIA 1966).

The principle of narrow construction of the

civil provision of the INA developed

contemporaneously, but independently, of the rule

of lenity applicable to federal criminal! statutes.

The Court “resolve[s] the doubts in favor of that

[narrow] construction because deportation is a

drastic measure and at times the equivalent of

banishment or exile. It is the forfeiture for

misconduct of a residence in this country. Such a

forfeiture is a penalty. To construe this statutory

provision less generously to the alien might find

support in logic. But since the stakes are

considerable for the individual, we will not assume

that Congress meant to trench on his freedom

beyond that which is required by the narrowest of

several possible meanings of the words used.” Fong

Haw Tan v. Phelan, 333 U.S. 6, 10 (1948); see also

Leocal v. Ashcroft, 543 U.S. 1, 12 n.8 (2004); Matter

of Farias-Mendoza, 211. & N. Dec. 269 (BIA 1996).

The Sixth Circuit’s decision is in conflict with

decisions from the Third, Seventh, Eighth, and

Ninth Circuits. The court had jurisdiction to

consider the statutory and constitutional issues

raised in Mr. Kim’s petition. Solano-Chicas, 440

F.3d at 1054-55; see also Alaka, 456 F.3d at 103-

104; Cabrera-Alvarez, 423 F.3d at 1009; Morales-

Morales, 384 F.3d at 421.

II. Petitioner Has Not Been Convicted Of A

Crime Of Violence

Mr. Kim is not removable under the only

charge contained in the Notice to Appear, 8 U.S.C.

§ 1227(a)(2)E)(i), because he has not been

convicted of a “crime of violence.” The DHS alleged

that his conviction for “domestic violence” in

violation of M.C.L. § 750.81(2), is a crime of

domestic violence. The Michigan statute is not a

crime of violence under 18 U.S.C. § 16(a) because it

can be violated by an unlawful touching and does

not require the use of physical force.

The DHS has the burden of proving by “clear

and convincing evidence” that Mr. Kim is

removable. 8 U.S.C. § 1229a(c)(3)(A); Pickering v.

Gonzales, 465 F.3d 263, 268-69 (6% Cir. 2006). In

satisfying this burden, the DHS is limited to the

record of conviction, which is the “statutory

definition, charging document, written plea

agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which

the defendant assented.” Shepard v. United States,

544 U.S. 13, 16 (2005). The eiements of 18 U.S.C. §

16 require courts to look at the elements and

nature of the offense of conviction and not the

particular facts of the crime. Leocal, 543 U.S. at 7

A noncitizen who is convicted of a crime of

domestic violence after admission is subject to

removal. 8 U.S.C. § 1227(aX2XE Xi). A “crime of

violence” is “an offense that has as an element the

use, attempted use, or threatened use of physical

force against the person or property of another.” 18

U.S.C. § 16(a).2 “Force” is “synonymous with

destructive or violent force.” U.S. v. Landeros-

Gonzales, 262 F.3d 424, 426 (5% Cir. 2001)

(internal citations omitted); see also Flores v.

Ashcroft, 350 F.3d 666, 672 (7“ Cir. 2003) (the force

must be violent in nature). Slight force is

inconsistent with destructive or violent force.

An “individual who assaults or assaults and

batters his or her spouse ... is guilty of a

misdemeanor.” M.C.L. § 750.81(2). Michigan law

2 The second prong of this definition, in 18 U.S.C. § 16(b), does

not apply to this case because Mr. Kim was convicted of a

misdemeanor, not a felony

defines “simple assault” as “either an attempt to

commit a battery or an unlawful act that places

another in reasonable apprehension of receiving an

immediate battery.” People v. Terry, 217 Mich.

App. 660, 662, 553 N.W.2d 23 (Mich. Ct. App.

1996). A battery is “the consummation of an

assault.” Id. Michigan defines battery as the

“willful touching of the person of another by the

aggressor or by some substance put in motion by

him.”

2001). The statute can be violated by spitting.

Terry, 217 Mich. App. at 662.

A person can violate the Michigan statute by

a mere “willful touching,” including spitting.

Violation of the statute does not require the use,

attempted use, or threatened use, of “physical

force.” Intentionally causing physical contact

where great bodily harm can result is not a “crime

of violence” because “physical contact is not the

equivalent of physical force.” Larin-Ulloa _ v.

Gonzales, 462 F.3d 456, 466 (5% Cir. 2006). To

qualify as a crime of violence, the statute must

require that a defendant intend to injure or use

force on the victim or that the physical contact

itself be violent, harmful, or offensive. Id.; see also

Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9 Cir.

2006) (simple battery is not a crime of violence

where that statute can be violated by “mere

offensive touching”); Popal_ v. Gonzales, 416 F.3d

249 (34 Cir. 2005) (simple assault is not a crime of

violence); Flores, 350 F.3d 666 (common law

battery conviction is not a crime of violence because

although the statute requires an intent to touch, it

does not require an intent to injure and the statute

can be violated by any contact, however slight).

A person can violate M.C.L. § 750.81(2)

without using “physical force” against the person or

property of another. It can be violated through any

unlawful contact, including spitting, and does not

require the use of physical or violent force.

Therefore, the DHS cannot sustain the charge that

a cuouviciion of violating this statute is a crime of

violence. Mr. Kim respectfully requests that the

Court terminate his removal proceedings.

CONCLUSION

Petitioner respectfully submits that the

Sixth Circuit erred in the following respects:

The court had jurisdiction to consider

Petitioner’s legal and constitutional challenges to

the denial of his application for cancellation of

removal. Petitioner is not removable because he

has not been convicted of a “crime of violence.”

Therefore, Petitioner respectfully prays that

the Court grant his petition for writ of certiorari

and reverse the decisions of the Sixth Circuit Court

of Appeals and the BIA.

Respectfully Submitted,

Marshal E. Hyman

Counsel of Record

Russell Reid Abrutyn

APPENDIX

SIXTH CIRCUIT COURT APPEALS FILINGS:

Order Denying Rehearing,

I ee ea Al - A2

Opinion,

T° SE Aiea ase a gra senna Bi- B3

BOARD OF IMMIGRATION FILINGS:

Decision of the Board of

Immigration Appeals,

a tg akg ye Gs ko we C1 - C6

Amendment to Oral Decision

of the Immigration Judge,

SU hae hab as so eww 8 D1 - D10

Decision of the Board of

Immigration Appeals,

on ea kw ac ke wes El - E3

Oral Decision of the

Immigration Judge,

STN 50555 ony sb ode ee eee F1 - F28

No. 06-3991

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TAE KYONG KIM,

Petitioner,

Vv. ORDER

ATTORNEY GENERAL OF

THE UNITED STATES,

Respondent.

BEFORE: GILMAN, GIBBONS, and

GRIFFIN, Circuit Judges.

The court having received a petition for

rehearing en banc, and the petition having been

circulated not only to the original panel members but

also to all other active judges of this court, and no

judge of this court having requested a vote on the

suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

A-]

petition were fully considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

LEONARD GREEN, CLERK

MS. FLORENCE P. EBERT

(513) 564:7026

(FAX) 564-7098

www.ca6.uscourts. gov

Filed: May 31, 2007

Marshal E. Hyman

3250 W. Big Beaver

Suite 529

Troy, MI 48084

Margar.et K. Taylor

U.S. Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington. DC 20044

RE: 06-3991

Kim vs. Gonzales

District Court No. A36 511 667

Dear Counsel:

Enclosed is a copy of an order which was entered

¥

today in the above styled case.

Very truly yours,

/s/ Florence P. Ebert

Florence P. Ebert

Case Manager

Enclosure

Case No: 06-3991

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ORDER

TAB KYONG KIM

Petitioner

Vv.

ALBERTO GONZALES

Respondent

BEFORE: GILMAN, GIBBONS and

GRIFFIN, Circuit Judges

This cause having come on to be heard upon

the record, the briefs and the oral argument of the

parties, and upon due consideration thereof,

Itis ORDERED that this petition for review

is AFFIRMED for the reasons stated from the bench.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green|

Leonard Green, Clerk

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 200

Falls Church, Virginia 22041

Owen, Charles S., Esquire

25899 West 12 Mile Road, #120

Southfield, MI 48034-0000

Office of the District Counsel/DE

333 Mt. Elhlott St., Rm. 204

Detroit, Ml 48207

Name: KIM, TEA KYONG A36-511-667

Date of this notice: 06/16/Z006

Enclosed is a copy of the Board's decision and order in

the above-referenced casc.

Sincerely,

/s/ Frank Krider

Frank Krider, Chief

Clerk

Enclosure

Panel Members:

HESS, FRED

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision fo the Board of Immigration Appeals

File: A36 511 667 - Detroit Date: June 16, 2006

In re: TEA KYONG KIM a.k.a Tae Kyong Kim

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Charles S.

Owen,

Esquire

ON BEHALF OF DHS: Michael B. Dobson

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(2)(E)(i), I&N Act [8 U.S.C.

§1227(a)(2)(E)Q@)]-Convicted of crime of

domestic violence, stalking, or child abuse,

neglect, or abandonment

APPLICATION: Cancellation of removal

ORDER:

PER CURIAM. We adopt and affirm the

December 10, 2004, decision of the Immigration

Judge.' See Matter of Burbano, 20 I&N Dec. 872, 874

(BIA 1994) (noting that adoption or affirmance of a

decision of an Immigration Judge, in whole or in part,

is "simply a statement that the Board's conclusions

upon review of the record coincide with those which

the Immigration Judge articulaled in his or her

decision"). The Immigration Judge properly found the

respondent to be ineligible for a discretionary grant

of cancellation of removal based on a balancing of the

positive and negative factors in his case, including

his 2000 conviction for domestic violence against his

former wife which resulted in her physical injury.”

' This case was last before us on July 23, 2002, when

we remanded because of a defective transcript. The

Immigration Judge issued a second oral decision on

December 10, 2004, amending her original oral

decision of October 16, 2001.

*An additional significant negative factor mentioned

by the Immigration Judge is the respondent's . lack

C-3

Matter of C-V- T-, 22 1&N Dec. 7 (BIA 1998); Matter

of Sotelo, 23 1&N Dec. 201 (BIA 2001). In addition,

we agree with the Immigration Judge that the record

does not contain sufficient evidence of genuine

rehabilitation or remorse which would tip the balance

of the equities in the respondent's favor.

On appeal, counsel alleges, without any

citations to relevant supporting Board or circuit case

law, that the respondent was not properly placed

under oath in the Korean language at the hearing,

and he appears to suggest that the Immigration

Judge was holding the respondent criminally

responsible for perjury and providing false testimony.

However, we note that immigration proceedings are

civil in nature, and not criminal, and that it does not

appear that the Immigration Judge was suggesting

of candor at the October 16, 2001, hearing because he

suggested that be and his wife had reconciled and

were living together when, in fact, divorce

proceedings had been initiated in January ZOO1, and

the divorce became final on October 30, 2001.

C-4

in any fashion that the respondent had committed

the elements necessary for a criminal conviction for

pelury. Furthermore, we observe that the respondent

was represented at the hearing by the same counsel

who represents him on appeal, and that counsel

initially proceeded with his direct examination of the

respondent without the assistance of an interpreter

before the Immigration Judge requested an

interpreter at the hearing. Finally, we note that the

respondent, who is a 50-year-old successful

businessman and who has been in the United States

since 1978, was placed under oath before his direct

examination (Tr. at 15), he answered in the

affirmative in English that he agreed to testify

truthfully, and therefore it appeared he fully

understood his obligation to testify truthfully. Upon

review, counsel's arguments on appeal do not

persuade us that the [Immigration Judge's decision

should be reversed. Accordingly, the appeal is

dismissed.

/s/_ Frederick D. Hess

FOR THE BOARD

oF

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW UNITED STATES IMMIGRATION

COURT

Detroit, Michigan

File No.: A 36 511 667 December 10, 2004

In the Matter of

TAE KYONG KIM } IN REMOVAL

PROCEEDINGS

Respondent

CHARGE: Section 237 (a) (2) (Eof the

Immigration and Nationality

Act, as amended.

Section Z40A(a) of the

Immigration and Nationality

Act, as amended - cancellation of

removal for a permanent

resident.

ON BEHALF OF RESPONDENT:

Charles S. Owen

Attorney at Law

25899 West 12 Mile Road

Suite 120

Southfield, Michigan

ON BEHALF OF DHS:

Michael B. Dobson

Assistant Chief Counsel

3331 Elhott

Detroit, Michigan 48207

AMENDMENT TO ORAL DECISION AND

ORDER

OF THE IMMIGRATION JUDGE

This case comes before the Court upon a

remand from the Board of Immigration Appeals. One

of the tapes in the proceedings apparently did not

record, and the Court has taken a new application

(see Exhibit R-l, with attached exhibits tabbed 1

through 12), reflecting the divorce decrees of

Respondent as well as payments of child support,

copy of a military identification for his oldest child

and tax returns (Exhibit R-1). The Court has also

permitted additional testimony from Mr. Kim

concerning the hearing, and direct examination with

his counsel, as well as attempts to reconcile some of

the inconsistencies and false statements in the

earlier hearing.

Respondent today has testified that although

he had a slight problem with his heart sometime

between 2001 and 20038, it required only one visit to

the doctor, and he has testified that he has taken no

medication, prescription or otherwise and has no

mental disability or illness or personality disorder

which affects his memory

The Respondent further’ testrfiied on

cross-examination by Government counse?. The

Government counsel questioned the Respondent

concerning inconsistencies in the first application

wherein the Respondent claimed io have been

married only twice before. Today the Respondent

asserts he has been married three times. The

Respondent was also questioned concerning his prior

testimony about his third wife. The Court notes that

Exhibit 7 is a divorce decree between Respondent and

Myong Kim, dated October 30, 2001. On direct

examination, the Respondent testified that as soon as

his wife filed for divorce, some four to six months

D-3

prior to the final decree, which Respondent now on

direct examination claimed was in 2002, he moved

out of the home. Later he claimed to have returned to

see the children and stayed with the children when

his wife was not in the home. The Court notes, as

Government counse] pointed out, and the Court takes

judicial notice of the fact that Michigan law provides

that where minor children are involved in a divorce

decrec, the State of Michigan requires at least six

months pass between the filing of a petition for a

divorce and the entry of any final order. The

Respondent was given several, indeed the Court

might say numerous opportunities to reconcile his

testimony in his first hearing with his testimony

today, and the Respondent repeatedly reiterated that

he did not lie. He was not lying then. He was not

lying now. Although the Court notes the testimony at

the first hearing indicates the Respondent claimed in

2001 to have reconciled with his spouse after the

domestic violence conviction; that they were lhving

together as husband and wife with their three

children; and no mention was made of any divorce.

D-4

Testifying today was Myong Kim, who testified that

she now lives in Atlanta. She has naturalized and

become a citizen of the United States. She stated that

she filed for divorce in 2001, could not recall when,

believed that the divorce took approximately six to

seven months, and was done in October of 2001. The

witness testified that her husband had been

previously married only one time, although

Respondent today asserts two prior marriages. The

witness testified that October 11, 2001, she was not

certain where she was, although she presented a

passport showing that from October 4th until October

19th, she was in Korea. Initially questioned by

counsel concerning reconciliations, she firsi stated in

December of 2001 she sought a reconciliation with

her husband, which failed. Then, when questioned as

to whether or not her husband had stayed overnight

at the home on High Meadow between the filing of

the divorce and the divorce decree on two occasions,

she indicated that he stayed there in December of ‘01,

then she stated he stayed there prior to the filing of

the divorce; and, on the fourth questioning,

1-5

stated that it was possible that he had stayed.

The witness testified that Mr. Kim after

divorce has paid $1500 a month for the support of the

three children. She further testified that she and the

three children moved to Atlanta in August of 2004,

and that since that time, Mr. Kim pays $3,000 a

month to support the household. Mr. Kim testified

that he provided an additional $1300 or the $1500 a

month to pay for rent for his wife’s home. Ms. Kim

testified she lives with Mr. Kim’s sister Ms. Kim

testified that she moved to Georgia because her

restaurant went bad, and she is unable to work

currently because she has an injury to her arm. She

has presented no medical evidence of that.

The Court notes that it is interesting that Ms.

Kim, who acknowledged that she was aware of the

immigration proceedings against her husband in

October of 2001' Ms. Kim, for the first hearing, did

'In January of 2001, prior to the claimed filing date

of the divorce, the first notice of final hearing was

served upon Mr. Kim in open court. The date for the

first hearing was set for October 16, 2001, and was

changed on September 6, 2001, to a hearing on

D-6

not file an affidavit. She did not appear and testify,

and there was.no explanation at that time which was

credible. At that time, Mr. Kim and his witnesses

testified that the parties lived together as husband

and wife and were happily married. It is clear today

from Ms. Kim’s testimony and Mr. Kim’s testimony

and the additional evidence that the parties were

certainly separated at the time of hearing, that

divorce petitions had been filed, that a divorce was in

fact imminent, and that property divisions had been

made since Ms. Kim testified that she sold her share

of the parties’ assets, the business share of the

parties’ assets near September 11, 2001. When

questioned by the Court as to why she anneared

today to testify and whether or not there was a

monetary reason for that, Ms. Kim denied that,

stating that she came because her children love their

father, and she would be unable to raise the children

alone. However, the Court. notes that Ms. Kim has

elected to move out of the state, obtaining permission

October 11th .

from the court as required by the divorce decree, to

another state. It is also interesting to note that when

Ms. Kim left the state, her husband raised the

monies being paid to her by another $1500 a month.

Ms. Kim has stated that she has sold the house which

she was awarded free and clear and the business that

she was awarded free and clear in the divorce

settlement in 2001. The business in which she

_ invested these monies has failed, and it appears that

the financial motive in this case 1s stronger than her

children’s desire for their father to remain, since at

the earlier hearing she did not appear and does

today.

The Court finds no reason to change its earlier

decision in this case. The Respondent clearly

provided false testimony on October 11, 2001, to

obtain a benefit that is cancellation of removal from

this Court. As pointed out by Mr. Dobson, this is a

case which on its face appeared to be a virtual grant.

The Respondent has long residence in the united

States. He has four United States citizen children,

one of whom is serving in the armed forces today. He

D-8

is a business owner and clearly has supported the

three minor children since his divorce in amounts

over and above that ordered by the court. There was

no reason for this Respondent to le about the state of

his marriage. If he had told the truth, relief woulé

have been his. He did not. By perjuring himself in the

testimony concerning the application, the Court finds

that that is so serious and egregious a matter that

the relief of cancellation of removal was denied, and

finds no reason to alter its order on this date. Based

on the foregoing and having considered both the prior

record and all of the evidence in this record, the

Court sees no reason to change the order denying the

Respondent's request for cancellation of removal asa

permanent resident and reinstating its order of

deportation to Korea on the charges contained in the

Notice to Appear.

__/s/ Eluzabeth A. Hacker _

ELIZABETH A. HACKER

U.S. Immigration Judge

U.S. Department of Justice

Executive Office of Immigration Review

Board of Immigration Appeals

Office of the Clerk

5201 Leesburg Pike, Suite 1300

Falls Church, Virginia 22041

Owen. Charles S . Esquire

25899 West 12 Mile Road, Suite 120

Southfield, MI 48034-0000

Office of the District Counsel/DE

333 Mt. Elliott St., Rm. 204

Detroit, MI 48207

Name: KIM, TAE KYONG A36-511-667

Date of this notice: 07/23/2002

Einclosed is a copy of the Board’s decision and order in

the above-referenced case.

Sincerely,

/s/ Lori Scialabba

Lori Scialabba

Acting Chairman

Enclosure

Panel Members:

PADLEY, ROGER

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision fo the Board of Immigration Appeals

File: A36 511667 - Detroit Date: July 23, 2006

In re: TEA KYONG KIM

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Charles S.

Owen,

Esquire

The respondent has appealed the Immigration

Judge’s decision rendered on October 16, 2001.’ A

review of the record of proceeding reveals that tape

#2 containing a portion of the testimony of the

October 16, 2001, hearing is blank. The transcriber

' The October 11, 2001, date on the transcript and

written Immigration Judge’s decision is incorrect.

The Immigration Judge held the proceedings and

rendered her decision on October 16, 2001.

E-2

notes that “there are only two sentences on tape two,

when it gets switched to tape three.” As we consider

the transcript necessary for our review of this matter,

we will return the record to the Immigration Court

for further action. Upon receipt of the record, the

Immigration Court shall take such steps as are

necessary and appropriate to enable preparati9n ofa

complete transcript of the proceedings including a

new hearing, if necessary.

ORDER: The record is returned to the

Immigration Court for further action as appropriate

and certification to the Board by the Immigration

Judge thereafter.

/s/ Ryan A. Pally

FOR THE BOARD

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW UNITED STATES IMMIGRATION

COURT

Detroit, Michigan

File No.: A. 36 511 667 October 11, 2001

In the Matter of

)

)

TAB KYONG KIM ) IN REMOVAL

) PROCEEDINGS

)

Respondent

CHARGE: Section 237(a)(2)(E) of the

Immigration and Nationality

Act, as amended-after

admission, convicted of a

crime of domestic violence,

crime of stalking, or crime of

child abuse, child neglect, or

child abandonment.

APPLICATIONS: Section 240A(a) of the

Immigration and Nationality

Act, as amended- cancellation

of removal for a permanent

resident.

ON BEHALF OF RESPONDENT:

Charles S. Owen

Attorney at Law

25899 West Twelve Mile Road

Suite 120

South Hill, Michigan 48034

ON BEHALF OF SERVICE:

Michael B. Dobson

Assistant District Counsel

333 Mount Eliot

Detroit, Michigan 48207

ORAL DECISION AND ORDER OF

THE IMMIGRATION JUDGE

The respondent is a 46-year-old male, married,

native and citizen of Korea. The Immigration and

Naturalization Service issued a Notice to Appear

charging the respondent with being subject to

removal on the grounds set forth above. The instant

proceedings were commenced by that filing of that

Notice to Appear with Immigration Court. See

Exhibit 1; 8 C.F.R. 3.14(a).

In a hearing before the undersigned, the

respondent, through counsel, admitted that he was

not a national or citizen of the United States but

rather a native and citizen of Korea. The respondent

admitted that he entered the united States at

Honolulu, Hawaii, on or about November 11, 1978, as

an immigrant. The respondent further admitted that

he was convicted on March 27, 2000, in the 47th

District Court in Farmington, Michigan, for the

offense of domestic violence in violence of Michigan

Compiled Laws (M.C.L. Section 750.82). The

respondent further conceded that he was subject to

removal under Section 237(a) (2) (E) (ID of the Act.

The Immigration and Naturalization Service

provided certified copies of the conviction records for

the alleged offense. See Exhibit 2. Based on the

evidence of record, the charges of removal are

sustained by the standard of clear and convincing

evidence. Section 240(c) (3) of the Act.

The respondent designated Korea as_ the

country to which removai wouid be direcied. The

alien requested an opportunity to file application for

the relhef of cancellation of removal for permanent

residence under Section 240A of the Act. No other

forms of relhef were requested.

FACTS

The evidence at hearing consisted of the

respondent’s application for cancellation of removal.

See Exhibit 3, the aforementioned conviction records,

copies of police report for this offense (see Exhibit 4);

as well as photographs of the weapon and victim (see

group Exhibit 4, tab A).' In addition, the respondent

submitted copies of the birth records for his three

united States citizen children, a copy of a marriage

certificate between the respondent and his spouse, a

copy of a letter from his social worker relating the

respondent’s treatment at a anger management

sessions which were directed by the court, a letter

from a Korean-American Women’s Association, a

letter from a Kyong Im and Sung H. Kim,

photographs of the respondent and his children,

correspondence from the children to the respondent

(tab 9, subtabs A through F), a copy of the

naturalization certificate for an Ok Kyong Stewart,

application for a vehicle title from May 19, 1993,

loans from the Madison National Bank 1992, tax

returns from 1993 to 2000, a letter from a certified

' Because of the copying of photographs, the Court

has retained original copies of the photographs which

are maintained in the record.

F-4

public accountant, Jung Lee, who is purportedly the

accountant for the respondent’s businesses, W-4s for

the employees of the Cherry Beauty Department, and

the 2000 tax returns for the Cherry Beauty

Department and New York Hair Inc., as well as a

copy of a mortgage for the respondent’s home. See

group Exhibit 5. The Immigration and Naturalization

Service, as a matter of impeachment evidence, has

submitted a copy of the respondent’s immigrant visa,

the cover page, the application, as well as underlying

conviction records. See Exhibit 6.

The respondent presented his testimony as

well as the testimony of two witnesses. The

respondent was the first individual to testify before

the Court. The respondent testified that he has been

married for 11 years. He has four children, one son

from a first marriage and then three daughters from

his current marriage. The respondent was questioned

about where his wife and children live and he

initially testified that they lived at his home. The

respondent later clarified indicating that his

13-year-old son has not resided with him since

approximately January 2000 when he sent the child

to live with the child’s grandfather in California and

has had no contact with that child since that time

period.

|

|

|

The respondent testified that he has a mother

and three brothers and four sisters who live in the

United States. The respondent testified that one

sister hves in Korea. He states that his father is

deceased. The respondent indicated that he has three

brothers who are residing Indiana, one sister in

Georgia, one in Chicago, one in Michigan, and one in

Florida. The respondent indicates that his mother

resides with his sister who resides in Florida.

The respondent testified that his three children are

10, 8, and 6. They are currently attending school. He

indicated the children speak a little Korean, however

they do not write Korean, indicating they write what

he describes as simply American.

The respondent testified that he owns a

business, the Cherry Hill Beauty Department, and

has owned that business for 11 years. He indicated

that he has four locations, one at Cherry Hill and

Inkster, one at Ten Mile and Coolidge, one on

Schaeffer, and another location. He states that he

owns allof these businesses employing 12 employees.

Each location is autonomous and he has managers at

various locations. He states that he 1s involved in the

day-to-day operation of the business indicating that

he works there for approximately 72 hours. The

respondent testified that if he were not present in the

F-6

United States his business would not be able to

operate because it would be bankrupt because there

would be no owner present. The respondent testified

that he manages the employees, the customers, and

purchases products as his part of the organization of

his business. The respondent initially claimed that

the total volume of his business per year was about

two million dollars. Questioned as to what his annual

payroll was, he indicated that he did not recall at this

time.

Under direct examination, the respondent was

questioned by his counsel as to how many times he

had been arrested. He indicated to his counsel that it

was the first time and that alcohol was not involved

in this arrest. The respondent stated that alcohol has

never been a factor, and was not a factor in this

instance of domestic violence. The respondent did

indicate that he did 36 weeks of court-ordered anger

management counseling concluding this

approximately four months ago. The respondent

testified that he learned from this how to manage his

anger and how to control his temper and live for his

family. The respondent testified that the police had

never been to his home other than this instance.

The respondent testified that on January 4,

2000, he had a fight with his wife because of his

F-7

ex-wife’s son. He said did not recall fighting with his

before that, that he occasionally had arguments but

not a fight such as this. He states that he has not had

any problems with his wife since this incident. The

respondent testified that he feels sorry about what

happened. He regrets it and that he does have a good

relationship with his wife now and with his children.

The respondent was questioned as to where

the children were today. He indicates that they are at

school and he has not informed them of the ongoing

immigration proceedings because he believes the

children are too young for this. The respondent was

then questioned about where his wife was. He

indicated that his wife was out of town, testifying

that there was a family emergency and that she was

in Korea.

The respondent testified that since he has been

in the United States for 23 years it would very

different to hive in Korea and he would not know how

to adjust to life there. He states that he believes he

should be given a second opportunity to remain in the

united States because he will do his best and he

would very much appreciate the opportunity to stay

with his wife and children. The respondent testified

that he learned from this instance that he would not

hurt anyone in the future.

F-8

The respondent testified that he is active in his

community by his participation in the Catholic

church and he does provide turkeys to people in the

inner city. The respondent has submitted a letter

from the Korean Women’s Association indicating that

he does donate funds to assist them by providing food

to inner city residents. He also claims to donate

money to various charitable groups testifying

initially that he donated $30,000 to his church to

build a school. He also indicated that he contributed

money to the school where his children attend. The

respondent testified that he 1s unable to visit with his

brothers and sisters and mother as frequently since

he is on probation now and he formerly used to visit

with them at least one time a month. But because he

is on probation as required as a result of his

probation to undergo alcohol testing once a week, he

cannot visit them.

The respondent was then presented by his

counsel several documents prepared by his children.

They are homemade cards. See Exhibit 4, tab 9, A

through F. He stated that his daughters would rather

make cards than buy them and particular indicating

that they were made this year, that is, 2001, by his

F-9

daughter for him. The respondent testified that he

spent a good deal of time with the children,

indicating that he does spend many hours with them

in swimming and going shipping. He states that he is

involved with their school activities, has attended

open houses and participated in activities there, and

went with the children when they returned to school

after this summer's vacation. He states that in the

morning he is very busy with his daughters, combing

their hair and doing things with them to get ready for

school.

Also testifying on behalf of the respondent was

the respondent’s brother-in-law, Kyong Kil Oh. The

witness testified that he has been in the United

States since approximately June 2001.* He states

that he has visited Mr. Kim in the United States on

three occasions although he could not remember the

first, indicating that he did come to the United States

in December 1999 and was here until January 2000.

The witness testified that he wascurrently staying in

Farmington in a house. He states that he resided

there with the three children and Mr. Kim and Mr.

Kim and his wife living there. The witness was

2 Examination of Mr. Oh’s passport indicates he

entered the United States on June 25, 2001, and has

authorized admission until December 25, 2001.

F-10

questioned as to where Mrs. Kim was. He testified

that she was in Korea and he-was aware of this

because she called from South Korea to speak to her

children. He stated that he answered the phone and

put the children on the phone. The witness then was

asked as to whether Mrs. Kim had said anything

about going to South Korea and he stated, on the first

occasion that he

testified about this, that she mentioned buying land

and further stating that she went to Korea on

personal business.

This witness testified that the respondent has

a good relationship with his children. They spend

time playing together. He states that the relationship

between Mr. and Mrs. Kim is also good. She is

planning to open a restaurant. Mr. Kim is helping

her do that.

This witness testified that he was in the united

States on January 4, 2000. He stated that he was

with Mr. and Mrs. Kim and they were all drinking.

He stated that at the time of the incident Mrs. Kim

was drinking. They got into an argument. She poured

a bottle of beer on her husband’s face and he stated

that at that point Mrs. Kim grabbed her husband’s

penis. He tried to pull her away and Mr. Kim tried to

get away from his wife and was unable to do so. He

K-11

testified that Mr. Kim then grabbed a wirecutter

which was apparently near the dining room table.

The witness testified that he took that away from Mr.

Kim and that the husband and wife struggled for

awhile. He then testified that he took Mr. Kim out of

the home and Mrs. Kim called the police. The witness

stated initially that he did not give a statement to the

police until the next day, but he did advise the police

that Mr. Kim did not actually use the wirecutters or

scissors. The witness testified he was unaware of any

other fights between Mr. and Mrs. Kim. He states

that Mr. Kim has expressed remorse for this incident.

Also testifying on behalf ofthe respondent was

a family friend of the respondent, Kyong Im. She

testified that she has known the respondent and his

wife eight, nearly nine, years socially being family

friends. She described Mrs. Kim as being very close,

like sisters. She stated that while they did not see

each other regularly, they have gone out of town on

vacations at least a couple times a year and that she

and Mrs. Kim call each other every day. She stated

that she has seen Mr. Kim with the children,

indicating that because he is a businessman when

she visits he is frequently there. She states that he 1s

very close to the children and the children love him.

She also stated that she had seen Mr. and Mrs. Kim

F-12

argue one time. However, she described them as a

regular husband and wife. She stated that she was

aware of the incident because Mrs. Kim had called

her about it and Mr. Kim stayed with her following

the arrest for a period of time although she did not

discuss this matter with him. She states that for the

last five months they have been together that she is

aware of and she has seen them together. They

appear to be very close and that their marriage is

fine.

STATEMENT OF THE LAW

Section 240A(a) of the Act provides for

cancellation of removal by the Attorney General if

the alien can establish that he has been lawfully

admitted for permanent residence for not less than

five years and has resided in the United States

continuously for a period of at least seven years after

having been admitted in any status. The alien must

further show that he has not been convicted of an

aggravated felony. Further, the respondent must

show that relief is merited in the exercise of

discretion. Section 240A(a) of the Act.

The Board of Immigration Appeals has noted

that in considering applications for relief under this

section, the Court can balance the adverse factors

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evidencing the undesirability of the alien as a

permanent resident against the social and humane

consideration factors presented on the alien’s behalf.

Matter of C-V-T-, Int. Dec. 3342 (BIA 1998); Matter

of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978).

The Board has found that factors applicable to

consideration under relief under former Section

212(c} of the Act are equally relevant to consideration

of cancellation of removal under Section 240A(a) of

the Act. Matter C-V-T-, supra. These factors include

family ties in the United States, duration of residence

(particularly when inception of residence occurred at

a young age), evidence of hardship to the respondent

and his family if deportation occurs, service in the

military, history ofemployment, existence of property

or business ties, evidence of value and service to the

community, proof of genuine rehabilitation if a

criminal record exists, and other evidence attesting

to the respondent’s good character. Matter of Marin,

Equally applicable for consideration by the

Court are adverse factors such as the nature and

circumstances of the grounds of removal, the

existence of additional significant violations of the

immigration law, the existence of a criminal record,

and, if so, the recency, nature, and seriousness, as

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well as other evidence of the respondent’S bad

character or undesirability as a permanent resident

of this country. Matter of Marin, supra. While the

existence of minimum equities may be sufficient in

some cases to establish eligibility for the relief

sought, as the negative factors grow greater and/or

more serious, it becomes incumbent on_ the

respondent to establish offsetting favorable equities.

Matter of Edwards, 21 I&N Dec. 191 (BIA 1990);

Matter of Arreauin, Int. Dec. 3247 (BIA 1995).

Where a respondent has a criminal record, he will

ordinarily be expected to establish rehabilitation in

order to merit this favorable exercise of discretion.

Matter of Buscemi, 19 I&N Dec. 628 (BIA 198B).

However, these applications must be evaluated on a

case by case basis with rehabilitation as a factor to be

considered in the exercise of discretion. Matter of

Edwards, supra.

RESPONDENT'S APPLICATION FOR

SECTION 240A (a) RELIEF

It is undisputed that the respondent meets the

minimum statutory eligibility requirements to apply

for relief under Section 240A(a) of the Act. He was

admitted as a lawful permanent resident in 1978. His

first arrest according to his testimony in the evidence

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of record occurred in 2000. The issue in this case 1s

whether the respondent has demonstrated that he

warrants the exercise of the Court's discretion.

The respondent has presented considerable

equities. He is the father of four United States citizen

children of which he has submitted three birth

records. The respondent has resided in the United

States for some 23 years. His mother and siblings are

apparently either permanent residents or citizens

although the record is devoid of evidence with the

exception of a naturalization record from what

appears to be the respondent’s mother. At the time of

his admission to the United States he was 18. The

respondent and his witnesses have stated that he is

close to his children. The respondent has testified

that he is remorseful of the events,and that he will

suffer hardship if he is deported.

On the surface of this case, as pointed out by

Government counsel in his closing argument, this

would appear to be a case where the minimum

equities might be sufficient to establish eligibility for

the relief requested. However, this case has taken a

rather serious turn during the course of the

respondent's testimony and the testimony of his

witnesses. Initially, the respondent elected to testify

in English and no request was made for an

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interpreter. However, during the course of the

testimony, it became clear that the respondent either

was having some difficulty in expressing himself or

understanding the questions asked. The Court then

contacted and obtained an interpreter in the Korean

language to provide the respondent the opportunity

to have a full and complete understanding of the

questions asked. The Court would note that the

respondent has testified that he has been in the

United States for 23 years. He has operated at least

four to five businesses depending on his testimony for

11 years and dealt with suppliers and employees in

these businesses.

He testified that he dropped out of college although

he completed high school in Korea prior to coming to

the United States and he appears to be an intelligent

individual who has an understanding of the nature

and purpose of these proceedings. I elaborate on this

because I cannot otherwise explain the nature of the

testimony which this respondent offered. The

respondent was extensively cross-examined by

Government counsel. I would note that on his initial

questioning by his own counsel, the respondent

testified initially that this was the only arrest that he

had had. He also testified that his wife was not able

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to be present because she had to fly to Korea because

of a family emergency having to do with her sister.

The respondent testified that he has not told his

children about his immigration problems because of

their tender years and offers the cards written by the

children. The respondent testified on _ direct

examination that these were written and prepared

for him by his children this year. The respondent was

questioned as to who lived with him and he stated

that he has been living with his wife and three

daughters for the last several years. All of this was

proffered on direct examination.

On cross-examination, the respondent was again

asked by Government counsel how long he had been

living with his wife. He indicated that they had lived

together for the past several years and was asked by

Government counsel on at least two occasions about

this. The respondent was then questioned as to why

his daughter Annie (see group Exhibit 4, tab 9,

subtab D) would send him a letter which was written

this year which states in pertinent part “Dear Daddy,

I love you and miss you a lot and wished you could

live with us and even wish that Mommy changed her

mind and let you live with us. But I wanted to tell

you that on your birthday can you pick us up or come

to our house because I want to give you your birthday

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present and birthday card. Don’t tell me to save it till

Sunday because I don’t want to save it till Sunday. I

want to give it to you on your birthday. Love, Annie

Kim.” The Court notes that this card is embellished

with a heart in which the child has printed “Happy

Father’s Day.” The Court would further note that

Father's Day is in June and the respondent's

birthday is in August, specifically August 15. When

questioned by this, the respondent then indicated

that he was ordered by the Court following his plea of

guilty to stay away from the family home for six

months and that the child’s letter was written during

this period. when he was confronted with the fact

that his earlier testimony was he received this from

his daughter, Annie, in 2001, then stated that his

wife drinks a lot and becomes angry and throws him

out of the house when she has PMS and that the

child may have this during that time. The respondent

came up with several facile explanations, none of

which were consistent with each other and none of

which are persuasive. The respondent’s description of

events is certainly significantly different. The

respondent testified that his wife slapped his cheeks

so he grabbed her collar then grabbed her neck. He

stated that when he grabbed his wife’s neck, she

grabbed his penis. He pushed her away. He grabbed

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her hair. They were angry so they had an argument.

The respondent denied threatening to kill his wife

and he denied grabbing a fireplace poker and

swinging it. He further denied that he used a pair of

scissors, stating initially he used a bench, but then

stating 1t was not a bench, it was wirecutters. The

respondent was questioned as to the witnesses who

provided statements to the police. See Exhibit 4. The

respondent stated that the Ok Kyong Sub who gave

a statement to the police was his elder sister and

states that his wife assisted her in giving the

statement because she speaks English and his sister

did not. He states that his sister’s statement was not

true and he believes that she would provide an

untruthful statement because she has a “Korean

mindset” and she thought he should be punished and

needed to help his wife and that is why his sister

gave a statement about the events which was not

true. He stated that his sister’s husband was also

present although indicating that he did not speak

English.

The respondent was then questioned again

about why his wife was not present. The respondent

stated that she was not present because there ~as an

emergency and she had to go to Korea. Her sister was

sick. The Court would note that on questioning of the

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respondent's two witnesses, his brother-in-law stated

that he spoke to Mrs. Kim, that initially the

brother-in-law stated that she went to buy land, and

then later stated that this was a trip that followed an

earlier trip where she was unable to complete the

purchase of land. Then the witness stated that she

went to Korea because she is opening a new

restaurant which Mr. Kim is helping her with and

she went to buy dishes for this restaurant, although

he only assumed this to be the case. The second

witness testified that Mrs. Kim left on a trip to buy

dishes for her new restaurant and the restaurant was

supposed to have open October 10 but the opening

was delayed. The Court notes that there is no

affidavit from Mrs. Kim and no information on which

this Court can make any determination about the

truth of any of these assertions and only notes that

they seem to inconsistent internally and, in the

respondent's case, inconsistent between direct and

cross-examination.

The respondent claims to have donated

significant sums of money to charity. When

questioned about evidence of this, the respondent

then stated that he took a loan out and he is making

payments on it. The respondent claims that he gave

at first $30,000 and then later $20,000 and then

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$13,000 to the Catholic Church. The Court would

note that in his examined tax returns submitted by

the respondent (see Exhibit 13, tabs A through H)

and the 1998 and 1999 tax returns show the sum

together of approximately $6500 to charity. Although

it references statement 3 to determine the object of

the charity, no statement 3 is attached to the tax

return. The Court is unable ascertain what those

contributions were directed to. The respondent claims

to have donated other sums to other charities but no

evidence of this other than a generalized statement

by the Korean Women’s Association that the

respondent has participated in their support

distributing food, painting the town, and distributing

goods to inner city needy friends around

Thanksgiving and Christmas. The respondent in his

application (see Exhibit 3, question 56) states that he

is not a member of any organizations. Yet today he

testified that he is a member of the Lions and other

groups which are too numerous to mention. The

Court would note that no evidence of this has been

submitted. The respondent has submitted no

documentary evidence from the church which shows

contributions to them in the amounts which he

claims.

The respondent was questioned extensively by

Government counsel as to whether or not he had eny

other arrests. The respondent states that he did not.

He was questioned again as to whether he had any

arrests in any countries of the world. The respondent

stated that he did not on at least two occasions. The

respondent was then questioned about an arrest in

Korea December 23, 1976, under the violent force

control act (see Exhibit 8) where the respondent was

given six months probation. The respondent then

indicated that he did recall that. However it was a

false accusation. The Court would note the police

report indicated the respondent was alleged to have

joined a fight, gripped one of the combatant’s neck,

taking him to the floor, then kicking his neck and

waist several times injuring the victim. See Exhibit

8. The respondent indicated that was his only arrest

in Korea and then when his recollection was

refreshed about being fined tor violations of the

conscription act, he initially stated that he did not

remember, and then stated that his sister took care

of the matter.

The respondent was also questioned about an

event in Inkster and only after extensive questioning

and numerous denials did the respondent then

indicate that there had been an incident where he did

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go tocourt where there were charges of counterfeiting

and forgery against one of his businesses lodged.

The respondent’s two witnesses were

questioned about whether or not the respondent

resided with his wife. The respondent himself

indicated that in the last few months he had been

thrown out of the home by his wife on at least one

occasion, if not more, when his wife was drinking and

had PMS. Both the respondent’s witnesses indicate

that to their knowledge, particular Mr. Oh stating

that he has resided there since June 25 until October

1 and on no occasion during that time had’ the

respondent left the family home, although there were

cases when he came home late because of his work.

The respondent’s second witness also indicated that

this was not to her knowledge and she spoke to Mrs.

Kim on a daily basis and, although she was aware of

a prior incident, that is, prior to January 4, 2000,

where Mr.

Kim was evicted by his wife from the family home,

she was not aware of anything since that time.

The inconsistencies between the respondent's

testimony and the testimony of his witnesses were so

serious in this case. The Court can only describe

them as providing false testimony. The respondent's

testimony has been vague, nonresponsive. It has not

F-24

been consistent internally. The Court has provided

the respondent with an interpreter to assist him in

conveying information in this case. The respondent

has failed to do so and his testimony is perhaps best

described as evasive. Although not material to the

claims herein, the Court would note that on one

occasion the respondent was asked by counsel as to

the earnings of his business. He claimed that his

business earned two million dollars. When confronted

with his own tax returns which shows that the

businesses earned only $500,000 aggregating both

returns (see Exhibit 5, tabs 17 and 18), the

respondent then stated that he bought two new

businesses this year and this year the businesses are

making two million dollars. Neither the respondent’s

personal tax returns nor his business tax returns

support these assertions. The respondent’s testimony

about his wife’s failure to be here is certainly

questionable. I am deeply troubled by the fact that

the respondent’s family has _ not présented any

evidence in this case. His siblings have not written

one letter. There is no affidavit. Although his

brother-in-law traveled from Korea to testify, his

sister did not even provide an affidavit, that is, not

his sister in Korea nor any of the permanent resident

or citizen siblings. The respondent's own wife is not

F-25

present. It would appear that there is some basis to

believe that she went to Korea to conduct business.

This case has been scheduled for nine months and

there is no explanation for her failure to appear, no

viable or credible explanation for the failure to

appear. There is no doubt that the respondent has

three children. The effect of deportation on these

children is subject to question. There is no evidence

as to the effect other than the respondent and his two

witnesses which quite frankly the Court does not find

to be tremendously credible in this case. Both

witnesses appear to be willing to provide any

statements to assist the respondent and the

statements are certainly not consistent and certainly

not consistent with objective evidence submitted. See

Exhibit 4. The respondent’s own wife did not even

write an affidavit stating that she wished her

husband to remain in the United States to assist her

in the raising of their three citizen daughters. While

two of the children certainly are quite young, the

respondent does have a 10-year-old child and that

child has not written anything to indicate the effect

it would have on her should her father not be present.

Indeed, according to that child, the respondent is not

present. Despite the respondent's claims of

rehabilitation, I find that his claims of remorse and

F’-26

rehabilitation to be empty given to his otherwise

incredible testimony to this Court. Rehabilitation is

not demonstrated by an individual who provides false

testimony to a court who is considering whether or

not to permit him to remain in the United States.

This is contrary to any claims of either remorse or

rehabilitation. Rather it speaks to someone who will

do anything to achieve his ends.

The Court finds that despite the respondent’s

long residence, despite the respondent's children arid

siblings, the respondent has demonstrated to this

Court that he does not deserve the exercise of

discretion. The Court notes that the respondent pled

guilty to aggravated domestic violence, and indeed it

is not one, as Government counsel points out, of the

most. serious offenses which comes before this Court.

Nevertheless, it is a serious offense and it is clear

from the police report and the documentary evidence

(see Exhibit 4) that the respondent did inflict harm

and injury on his spouse, although he denies doing

so. The Court therefore must find that the respondent

has not established that he merits the exercise of its

discretion and his application for relief will be denied.

Based on the foregoing after having considered all of

the evidence, the Court enters the following order.

ORDER:

IT IS ORDERED that the respondent's

application for cancellation of removal under Section

240A(a} is denied and that the respondent be

removed and deported from the United States to

Korea on the charges contained in the Notice to

Appear.

Is! Elizabeth A. Hacker

ELIZABETH A. HACKER

Immigration Judge