U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOS

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Los Angeles, CA 90010

606 S. Olive Street, 8th Floor

Los Angeles, CA 90014

Name: CHUNG, CHUNGRIM

A 095-583-753

Date of this notice: 10/31/2014

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

DOrutL ca.AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Chungrim Chung, A095 583 753 (BIA Oct. 31, 2014)

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Steve S. Chang, Esquire

Decision of the Board of Immigration Appeals

u.s. Department of Justice

Executive O (fice for Immigration Review
Falls Church, Virginia 20530

File: A095 583 753 - Los Angeles, CA

Date:

OCT 312014

In re: CHUNGRIM CHUNG

APPEAL AND MOTION

ON BEHALF OF RESPONDENT:

Steve S. Chang, Esquire

CHARGE:
Notice: Sec.

237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law

APPLICATION: Adjustment of status

The respondent, a native and citizen of South Korea, appeals an Immigration Judge's June 12,
2013, decision finding her removable as charged and denying her application for adjustment of
status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). The
respondent's brief includes a motion to remand. The Department of Homeland Security has not
responded. The record will be remanded for further proceedings.
We review findings of fact for clear error, but questions of law, discretion, and judgment, and
all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii).
The respondent entered the United States in April 1998 as a non-immigrant religious worker
(R-1) with authorization to stay in the United States for a temporary period not to exceed April 1,
2004 (Exh. 1; Exh. 21 at 2). The record before the Immigration Judge revealed that on
December 14, 2005, an Immigrant Petition for Alien Worker (Form 1-140) was filed on the
respondent's behalf by CHS Hollywood Presbyterian Medical pursuant to section 203(b)(3)(A)
(Skilled workers, professionals, and other workers) (Exh. 4). The Form 1-140 was approved
February 26, 2006, with a priority date of December 14, 2005 (id.; 1.J. at 13). The Immigration
Judge denied her renewed application for adjustment of status under several provisions of section
245 of the Act because she had not maintained a lawful immigration status since entry into the
United States (l.J. at 2-3).
On appeal, the respondent argues that she did, in fact, maintain a lawful immigration status
since entry into the United States such that she could benefit from the exemption provided in
section 245(k) of the Act, which permits certain employment-based adjustment applicant to
adjust although otherwise barred from adjustment of status under a provision of 245(c) of the Act.
In support of her argument, she provides a copy of Form I-797 indicating that on May 8, 2004,
United States Citizenship and Immigration Service received a Form 1-140 filed on her behalf by
Gotham Per Diem, Inc., and an accompanying Application to Register Permanent Resident or
Cite as: Chungrim Chung, A095 583 753 (BIA Oct. 31, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A095 583 753

Adjust Status (I-Form 485) (Respondent's Br. Attachment at 3, 7). See Matter of Rajah, 25 l&N
Dec. 127, 138 (BIA 2009) (stating that the requirements for a motion to remand are essentially
the same as the requirements for a motion to reopen); Matter of Coelho, 20 l&N Dec. 464,
471 (BIA1992); 8 C.F.R. 1003.2(c)(4).

ORDER: The respondent's motion to remand is granted, the Immigration Judge's June 12,
2013, decision is vacated, and the record is remanded for further proceedings consistent with the
foregoing decision.

2
Cite as: Chungrim Chung, A095 583 753 (BIA Oct. 31, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

The Board does not consider new evidence presented for the first time on appeal. 8 C.F.R.
1003.l(d)(3)(iv); Matter ofHaim, 19 l&N Dec. 641 (BIA1988); Matter of Fedorenko, 19 l&N
Dec. 57, 73-74 & n.10 (BIA 1984). Applicable regulations provide that a motion to reopen
"shall not be granted unless it appears to the Board that evidence sought to be offered is material
and was not available and could not have been discovered or presented at the former hearing."
8 C.F.R. 1003.2(c)(l). In light of the significance of the evidence that the length of time that
the respondent was out of lawful status may have been fewer than 180 days, we find it
appropriate to remand the record for the Immigration Judge to consider the new evidence of the
respondent's eligibility for adjustment of status. See 8 C.F.R. 1003.l(d)(3)(iv) (stating that the
Board may not engage in fact finding in the course of deciding appeals except for taking
administrative notice of commonly known facts; Matter of S-H-, 23 I&N Dec. 462 (BIA 2002)
(in light of Board's limited fact-finding ability on appeal, a remand is appropriate when the
record is inadequate for review). Accordingly, the following order will be entered.

U N ITED STATES DE PART ME NT O F J U ST I CE

EXE C UT IVE O F F ICE FOR IMM I G RAT I O N REV IEW
U N ITED STATES I M MIGRAT I O N C O U RT
LOS ANG ELES, CAL I F O R N IA

In the Matter of

)
)
)
)

CH U N G R I M CH U N G
RE S P O NDE NT

I N REMOVAL P ROCEED I NG S

CHA R G E S:

Section 237(a)(1)(B) remained longer than permitted.

A P PL ICAT ION S:

Adjustment of status under Section 245(i) or other provisions of the

I NA.

O N BEHAL F O F RE S P O NDE NT: STEVE CHA NG

O N BEHAL F O F OH S: C I NDY YU

ORAL DEC I S I O N O F THE I M M IG RAT I ON J UD GE

The respondent is a 56-year-old native and citizen of the Republic of Korea. She
has twice applied for adjustment of status. However, for reasons explained below, I
must deny her application.
Removability
The respondent was placed in these removal proceedings when the Notice to
Appear (Exhibit 1) was filed with the Immigration Court on March 7, 2008. The Notice to
Appear charges her with coming as a nonimmigrant religious worker on April 1, 1998

Immigrant & Refugee Appellate Center | www.irac.net

June 12, 2013

File: A095-583-753

and remaining longer than permitted. This charge was sustained by a previous
Immigration judge and I concur in that finding the evidence in the record that her R-1
status expired April 1, 2004 (Exhibit 2) Ithus, I find that she is removable as charged

Legal Standard for the Relief Sought

To qualify for adjustment of status under Section 245(a) of the Act, the
respondent must show that she was inspected and admitted or paroled and that a visa
is immediately available to her. In this case, the respondent is the beneficiary of an
approved 1-140 employment-based visa petition (Exhibit 4). This petition shows that
she has been sponsored as a skilled worker by Hollywood Presbyterian Medical. It
contains a priority date of December 14, 2005 which is current. However, the
respondent is not eligible for adjustment of status under Section 245(a) because her
nonimmigrant R-1 status expired on April 1, 2004. Thus, she is ineligible to adjust her
status under Section 245(a) because she has failed to maintain her nonimmigrant status
as required and is therefore ineligible for adjustment under Section 245(c).
In the alternative, the respondent seeks adjustment under Section 245(i). The
respondent could conceivably qualify for adjustment of status under Section 245(i) if she
had been the beneficiary of an immigrant visa petition or application for labor
certification filed prior to April 1, 2001. This respondent was the beneficiary of a
previous immigrant visa petition. Specifically, she was the beneficiary of an 1-360
special immigrant religious worker petition which was filed by the Abbey of St. Walburga
for her on August 14, 2001 (See Exhibit 5). Unfortunately, this petition was filed several
months too late to grandfather the respondent under Section 245(i) thus she is not
eligible to pay the penalty fee and qualify for adjustment of status under Section 245(i).
Her previous immigrant visa petition was simply filed too late.

A095-583-753

June 12, 2013

Immigrant & Refugee Appellate Center | www.irac.net

and designate Korea (the Republic of Korea) as the country of removal, if necessary.

In conjunction with the special immigrant visa petition, the respondent also filed a
previous application for adjustment of status. This previous application for adjustment
of status is also documented in Group Exhibit 5. This shows that she initially sought

status. Thus, the Court has considered whether she might conceivably remain eligible
for adjustment of status because she was, in fact, in status at the time she filed her first
application for adjustment of status.
Unfortunately, however, the respondent is not renewing that initial application for
adjustment of status. That is, she does not appear to be currently sponsored by the
Abbey of St. Walburga as a religious worker as she was under her first application for
adjustment of status. Rather, the respondent is now seeking to adjust on another basis
that is on the basis of the 1-140 petition filed for her by Hollywood Presbyterian Medical.
Thus, as she is not renewing the initial adjustment application, I am not able to consider
her eligible for adjustment of status.
Finally, the Court has also considered whether the respondent might qualify for
adjustment of status under Section 245(k) because she is seeking to adjust under an
employment-based category. However, unfortunately, the gap between the end of her
nonimmigrant status and the filing of her current application for adjustment of status was
too long to allow her to benefit from 245(k). Thus, I am unable to conclude that this
respondent is presently eligible for adjustment of status under any of the provisions of
Section 245 of the Immigration and Nationality Act.
The Court notes that the respondent has remained in the United States for many
years since April 1, 1998 and I am not unsympathetic to the respondent, who appears to
be a good person who has sought for many years to obtain permanent residence here
in the United States. She has been sponsored by two different employers under two

A095-583-753

June 12, 2013

Immigrant & Refugee Appellate Center | www.irac.net

adjustment of status on September 20, 2002. At that time, she was still in valid R-1

different procedures and has been subjected to very lengthy and protracted procedures.
Nevertheless, for the reasons explained above, I am unable to conclude that the
respondent is eligible today for adjustment of status. Thus, I am compelled to deny her

O RDE R
The respondent's application for adjustment of status is hereby denied.
The respondent has not applied for any other relief before this Court.
The respondent is therefore ordered removed to the Republic of Korea.

Please see the next page for electronic

signature

MA U R E E N O'S ULL IVA N

Immigration Judge

A095-583-753

June 12, 20 13

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application.

,_

/Isl/
Immigration Judge MAUREEN O'SULLIVAN
osullivm on September

19,

2013 at 7:32 PM GMT

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A095-583-753

June 12, 20 13