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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0505%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

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

F-13

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

F-14

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

F-15

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

F-16

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

F-17

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

F-18

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

F-19

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

F-20

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

F-21

$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

F-23

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0505%3A1. Public record. Not legal advice.