Opinion
21-696
06-21-2023
HEEJA JEONG, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted June 9, 2023 [**] Honolulu, Hawaii
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A203-113-439
Before: BADE, BUMATAY, and SANCHEZ, Circuit Judges.
MEMORANDUM [*]
Heeja Jeong ("Jeong"), a native and citizen of the Republic of Korea, petitions for review of the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") determination that she is removable under 8 U.S.C. § 1227(a)(1)(A) and 8 U.S.C. § 1182(a)(6)(C)(i). This Court has jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.
1. Jeong fails to demonstrate that her 2016 airport interview lacked adequate safeguards. The 2016 interview was conducted under oath, transcribed, and every page contains the date of the interview along with signatures from the interviewing officer and Jeong. Jeong requested that the interview be conducted in English and the transcript contains no indication that Jeong was tired, confused, or reluctant to answer any questions. See Matter of J-C-H-F-, 27 I. &N. Dec. 211, 214 (BIA 2018). Although the last page of the sworn statement contains an incorrect date, Jeong fails to explain how this error renders the entire interview unreliable under the totality of the circumstances. In addition, the government made a reasonable effort to obtain the interviewing officer who was on medical leave, and Jeong has not demonstrated that the failure to procure the signing witness was prejudicial.
2. A noncitizen is statutorily removable if "by fraud or willfully misrepresenting a material fact," the noncitizen "seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States." 8 U.S.C. § 1182(a)(6)(C)(i); 8 U.S.C. § 1227(a)(1)(A). A statutory bar, unlike a discretionary factor, renders a noncitizen removable even after adjustment of status. See Choe v. INS, 11 F.3d 925 (9th Cir. 1993).
Jeong admitted during the 2016 airport interview that she intended to marry a United States citizen and adjust status when she entered the United States on July 8, 2010, but "told the officer [she] was here for vacation only." She agreed that she "knowingly and willfully misrepresented [her] true intent . . in order to gain admission." Substantial evidence therefore supports the agency's conclusion that Jeong sought to procure admission into the United States through willful misrepresentation. Materiality is a legal question we review de novo. See Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995). We find Jeong's misrepresentation of her intent to immigrate material because it "had a natural tendency to influence the decisions" of immigration officials. Id. at 443.
Jeong's reliance on a trio of BIA cases is unavailing. All three cases dealt with the question of whether preconceived intent could serve as a discretionary factor at the adjustment of status stage. See Matter of Cavazos, 17 I. &N. Dec. 215, 217 (BIA 1980); Matter of Ibrahim, 18 I. &N. Dec. 55, 56 (BIA 1981); Matter of Battista, 19 I. &N. Dec. 484, 485 (BIA 1987). This case concerns a statutory bar at the post-adjustment of status stage.
In Choe, we held that a noncitizen who enters the United States as a visitor and later adjusts status to permanent resident cannot be deported on the basis that the person's preconceived intent to remain rendered their nonimmigrant visa invalid under 8 U.S.C. § 1182(a)(20) (current version 8 U.S.C. § 1182(7)(A)(i)). See 11 F.3d at 930. We made clear that our holding would not prohibit an alien's deportation "for other immigration violations-violations that are statutory bars to adjustment of status in the first place," such as willful misrepresentation of a material fact at the time of entry. Id.
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).