U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesb11rg Pike. S11i1c 2000 Falls Clmrc/1, Virginia 22041

Chang, Steve S. 3600 Wilshire Blvd., #832 Los Angeles, CA 90010

OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

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Name: KEE, HYEON HEE Riders:098-447-978 098-447-487 098-447-489

A 097-876-943

Date of this notice: 9/12/2013

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

Don.rtL CtYVLJ
Donna Carr Chief Clerk

Enclosure
Panel Members: Mullane, Hugh G.

williame Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Yong Chul Kim, A098 447 978 (BIA Sept. 12, 2013)

U.S. Department of Justice . Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

Files: A098 447 978-Los Angeles, CA A097 876 943 A098 447 487 A098 447 489 In re: YONG CHUL KIM HYEON HEE KEE YOUNG JI KIM HYUN JI KIM IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENTS: ON BEHALF OF DHS:

Date:

SEP l 2 2013

Immigrant & Refugee Appellate Center | www.irac.net

Steve S. Chang, Esquire Tasha Gailys Assistant Chief Counsel

APPLICATION:

Adjustment of status; remand

, 1 The respondents appeal from the Immigration Judge s decision dated December 20, 2010, denying adjustment of status and granting them voluntary departure. remanded for further proceedings. On April 15, 2013, the Board requested supplemental briefing from the parties addressing the , respondents eligibility for adjustment of status. The respondents filed a supplemental brief and requested a remand. The Department of Homeland Security filed a non-opposition to the respondents' motion to remand. Accordingly, the following order will be entered. ORDER: The unopposed motion to remand is granted and the record is remanded to the The record will be

Immigration Court for further proceedings.

the lead respondent.

Before the Immigration Judge the respondent Yong Chui Kim (A098 447 978) was listed as , However, as noted by the respondents on appeal (Respondents

Supplemental Brief on Appeal, at 3), respondent Hyeon Hee Kee (A097 876 943) is the primary applicant for adjustment of status and the remainder of the respondents are derivatives to her application.

Cite as: Yong Chul Kim, A098 447 978 (BIA Sept. 12, 2013)

U. S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Los Angeles, California

File A 98 447 978,

et al

Date:

December 20,

2010

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

YONG CHUL KIM,

et al

Respondents

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGE:

APPLICATION:

APPEARANCES: ON BEHALF OF RESPONDENTS: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY: Tasha Gailey, Esquire

Pro se

ORAL DECISION OF THE IMMIGRATION JUDGE Based upon the Respondents' admissions to the allegations contained in the Notice to Appear, I do find

removability has been established by evidence which is clear, unequivocal and convincing. other form of relief. form of relief. Respondents have not applied for any

I do not see them eligible for any other

I will note for the record that the Respondents However, the I-140 has been

did have an I-140 available to them.

denied.

I have no jurisdiction to do any adjustments of status Furthermore, I would not have

unless the I-140 has been approved.

jurisdiction because they have been out of status and they must go back to Korea in order to adjudicate the adjustment of status, they actually had an approved I-140. status, I have no jurisdiction, if

But since they were out of

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and therefore I have no and that is what they have

jurisdiction to adjust their status, been applying for.

I will note for the record that at one point in time they had an attorney. 2010, time. They came before this Court on August 19,

and they were going to take voluntary departure at that They claim that they were in an accident. They were

supposed to write a brief on the issue of the adjustment of status. That brief was never done. I have no proof that they I did agree to reset but I said

were ever in an accident.

Nevertheless,

their case and let the attorney have additional time,

at that time at the next hearing that they would have to take voluntary departure because this has been ongoing for quite some time. They have been before me on April the 10th of 2010 when the I gave them back until August. And the

I-140 had been denied.

first appearance was back in 2008. attorney,

I gave them time to get an

and they tried to make an argument that they could But since they have been out of status, I

adjust their status.

have no jurisdiction to adjust their status. apply for 245 (k) , A 98 447 978,

They then tried to and 2010

but they are not eligible under 245 (k) , 2

et al

December 20,

again,

there is a brief on that issue.

And anyway,

at the last

hearing after the April 2010 hearing, August 19 of 2010,

they came back to court on had not

stated they had been in an accident,

had time to really look into what was going on, were supposed to bring an accident report,

and therefore they

which they never did.

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I then reset the case for August of 2010,

expecting them

to appear before me from August 10 until November 19 of 2010, expecting them to take voluntary departure. court. They came back to

That was on November 19 of 2010 and told me at that time I

that they had fired their attorney the day before the hearing.

stated that they were supposed to have taken voluntary departure on that date, and they waited until the day before the hearing to which to this Court, looked to me like they

fire their attorney,

were just trying to gain time in which to stay in the United States. And I can appreciate the fact they may want to stay in But finding an attorney and expecting this

the United States.

Court to give them a lengthy period of time to get another attorney the day before the hearing is not a proper way, when they knew they had to take voluntary departure. But I'd already made

the decision that I did not have jurisdiction to do their adjustment of status, saw no further relief available to them and

offered them voluntary departure which they were supposed to have taken back in August. Then I gave them until November, 2010. and then I

gave them until today which is December the 20th, They came before me today, A 98 447 978, et al

and they still did not have an 3 December 20, 2010

(
attorney,

'

but I did tell them at that time back in November if there would be no

they did not have an attorney to represent them, further continuances.

They would have to take voluntary departure

because that's all I see is available to them since I have no jurisdiction to do an adjustment of status, me today requesting the voluntary departure, they did go forward on their own, and they came before

Immigrant & Refugee Appellate Center | www.irac.net

have no attorney.

So

and I find that they are and there is no

statutorily eligible for voluntary departure,

other form of relief that has been presented and none other that I see. Therefore, the following orders will be enacted. I do

find that the Respondents'

application for voluntary departure is

granted provided they depart on or before February the 18th of the year 2011. If they do not depart on or before the date, the

voluntary departure without further notice or proceedings will vacate and the following alternate Order of Removal shall become effective immediately. They will be ordered removed to South I

Korea on the charges contained in the Notice to Appear.

furthermore will require the voluntary departure bond which is a statutory minimum of $500 that must be posted on or before close of business on December the 28th of 2010. official holiday, 28 of 2010. Since Friday is an

five business days would therefore be December

If the Respondents fail to depart when and as there is a civil penalty

required without any further proceedings,

for failure to depart within the voluntary departure period and A 98 447 978, et al 4 December 20, 2010

accordingly with the regulations,

the Court has set the

presumptive amount of $3, 000 per Respondent.

Immigrant & Refugee Appellate Center | www.irac.net

DOROTHY DUNKEL-BRADLEY Immigration Judge

A 98 447 978,

et al

D ecember 20,

2010

CERTIFICATE PAGE I hereby certify that the attached proceeding before DOROTHY DUNKEL-BRADLEY, in the matter of: YONG CHUL KIM A 98 447 978

Immigrant & Refugee Appellate Center | www.irac.net

He Ong He Kim A 97 876 943 Yong Xi Kim A 98 447 487 Hueng Xi Kim A98 447 489 Los Angeles, was held as herein appears, California

and that this is the original

transcript thereof for the file of the Executive Office for Immigration Review.

Janine M.

Giambalvo,

Transcriber

YORK STENOGRAPHIC SERVICES, INC. 34 North George Street York, Pennsylvania 17401-1266 (717) 854-0077

March 11,

2011

Completion Date jmg/bjn