In Gun Choe v. Immigration & Naturalization Service

specially concurring in part and dissenting in part.

In this matter, the Immigration and Naturalization Service (INS) issued an order to show cause against Reverend In Gun Choe charging that he was deportable on the basis that he was excludable at his time of entry into the United States because (1) he had obtained an adjustment of immigration status to permanent resident as a special immigrant minister by fraud or willful misrepresentation of a material fact; and (2) at the time of his entry into the United States as a visitor, he intended to remain permanently and to seek employment. The Immigration Judge (“IJ”), after weighing the evidence and evaluating the credibility of the witnesses, terminated the deportation proceedings against Reverend Choe because the INS had “not met its burden of deportability by evidence which is clear, convincing and unequivocal[.]” The INS appealed to the Board of Immigration Appeals (“BIA”). The BIA reversed the IJ’s decision. The BIA ordered the deportation of Reverend Choe.

The BIA found that Reverend Choe’s preconceived intent at the time of entry to remain indefinitely had been proven by clear, convincing and unequivocal evidence. The BIA…

Reverend In Gun Choe has lived in the United States as a legal permanent resident since 1982. In 1988, however, the Immigration and Naturalization Service (“INS”) began deportation proceedings against Choe. The Immigration Judge terminated the proceedings; the Board of Immigration Appeals (“BIA”) reversed the decision of the Immigration Judge and ordered Choe deported.

The INS claimed that when Choe entered the United States as a nonimmigrant he had a preconceived intent to remain in the country permanently. The BIA found that this preconceived intent rendered Choe excluda-ble at his time of entry; the BIA also held that Choe’s adjustment of status did not affect this improper entry.

Choe petitioned us for review of the BIA decision. Because we find that adjustment of status bars later deportation for initial entry with preconceived intent to remain, we grant the petition for review and remand the action to the BIA for termination of deportation proceedings.

I

A. Choe’s Immigration History

Reverend In Gun Choe is the Pastor of Philippi Presbyterian Church in Seattle, Washington. Choe is a native of Korea and attended theological seminary in Korea. In December 1981, the…

11 F.3d 925 62 USLW 2389 In Gun CHOE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 91-70443. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 1993. Decided Dec. 14, 1993. Stephen A. Johnston, and Daniel H. Smith, MacDonald, Hoague & Bayless, Seattle, WA, for petitioner. Francesco Isgro, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent. Petition to Review a Decision of the Board of Immigration Appeals. Before: WRIGHT, ALARCON, and BEEZER, Circuit Judges. BEEZER, Circuit Judge: 1 Reverend In Gun Choe has lived in the United States as a legal permanent resident since 1982. In 1988, however, the Immigration and Naturalization Service ("INS") began deportation proceedings against Choe. The Immigration Judge terminated the proceedings; the Board of Immigration Appeals ("BIA") reversed the decision of the Immigration Judge and ordered Choe deported. 2 The INS claimed that when Choe entered the United States as a nonimmigrant he had a preconceived intent to remain in the country permanently. The BIA found that this preconceived intent rendered Choe excludable at his time of entry; the BIA also…