KWANG HYEN PARK, No. 21-70623, 9th circuit
Petitioner Kwang Park is a lawful permanent resident and South Korean native and citizen.
Granted the privilege of living in the US, he decided to become a violent drug dealer. He was arrested twice in three days for numerous drug-related crimes. He was also driving around with a loaded handgun.
He possessed a variety of illegal substances and other paraphernalia evidencing drug trafficking at both arrests, and he pleaded guilty to 13 charges, including possession of cocaine for sale.
Let’s take a look at the 2 arrests:
A. First Arrest On April 3, 2018, Park was stopped by California Highway Patrol for speeding and improperly changing lanes. Officers discovered that Park was driving with a suspended license and without insurance. They also observed signs of intoxication and required Park to perform a “series of field sobriety tests,” which he failed. During a search of Park’s car, officers found a loaded handgun and a canister of cocaine in a female passenger’s purse. They also found over $2,600, including “a large amount of hundred dollar bills,” in Park’s wallet, two airsoft guns that resembled firearms, three small bags of cocaine, Xanax, numerous containers of cannabis, a scale covered “with white powdery residue,” seven .40 caliber bullets, and a lock pick set. Park admitted that the handgun was his and that “the white powdery substance was cocaine.”
The officers arrested Park, and he was charged with numerous drug or firearm-related offenses, including unlawful possession of a controlled substance with a firearm. B. Second Arrest Three days later, Park posted bail and retrieved his car from police impoundment in the morning.
Why he was given bail is another story. That night, with no fear of the US authorities, Park was stopped again for speeding and for driving without a front license plate and with an improperly obstructed rear license plate. During the stop, Park admitted that there was a bag of cocaine under his seat. Officers again searched Park’s car and found the bag under Park’s seat, which contained 0.8 grams of cocaine, as well as four more small bags in the center console that each
contained between 1.2 and 1.4 grams of cocaine. An officer also noticed that Park’s car radio appeared to have been tampered with, and after removing the cover plate, the officer discovered a bag with 16.8 grams of cocaine, three bags containing a total of 137 Xanax pills, a bag with 95 Ecstasy pills, a bag with a single Ecstasy pill, and a scale covered in cocaine residue. During a later inventory of the car, officers also found a ledger showing “quantities of unknown substances” and “total value of these items,” a bag containing a small amount of marijuana, a methamphetamine pipe, two beverage containers modified “to conceal illegal narcotics” covered in cocaine residue, numerous containers thatwere “consistent with the use to conceal/transport illegal narcotics,” a box of latex gloves, and a
bulletproof vest.
Thankfully, Park was again arrested and ultimately charged with, among other things, possession and transportation of cocaine for sale. Park was questioned at the jail, and he admitted that the drugs and other contraband were his but asserted that they must have been in the car since his first arrest because he “would not be driving around with that much weight” and he “stoppedcarrying product” after his previous arrest. He also stated that no one else had driven his carsince he retrieved it from the impound lot, but some friends had ridden in it. Park pleaded guiltyto 13 charges a rising from his two arrests. At sentencing, he received concurrent 674-day jail terms and five years’ probation. The Government sought to remove Park from the United States based on his convictions, and he applied for withholding of removal and protection under the Convention Against Torture (“CAT”), among other relief, speculating that he would be persecuted and tortured by the South Korean government if removed. He would rather stay in the US and continue to sell drugs, carry loaded weapons and burglary tools.
Specifically, he claimed that South Korea would (1) re-prosecute and severely punish him for his drug crimes committed in this country and (2) force him to serve in the South Korean military consistent with its military-conscription policy. The immigration judge denied his request to stay in the US and the Board of Immigration Appeals (“BIA”) and the 9th circuit court of appeals agreed. Now there is one less violent drug dealing criminal off the streets. Park v. Garland (9th Cir. 2023)
Pregnant Women and Visa Applications 04/02/2020
I am pregnant and I want a visitor visa now!
April 2,2020
By James T. Daly
Evan is a citizen of India. She is 7 months pregnant and it shows. Evan has been invited to attend her best friend’s wedding in the US. In order to attend the wedding, Evan will need to apply for a B2 visitor visa. Can the officer deny Evan’s visa application because the officer thinks that Evan just wants to enter the US so she can give birth, thereby conferring US citizenship on her child (commonly known as “birth tourism”)? Yes, the officer can deny the application.
On January 23, 2020, the US State Department addressed this issue and amended the B2 visa rules to establish a rebuttable presumption that a B2 visa applicant, who a consular officer has reason to believe will give birth during her stay in the United States, is traveling for the primary purpose of obtaining U.S. citizenship for the child. The rule requires consular officers to deny B2 visa applications to applicants who do not overcome the presumption.
The new rule retains the general rule that pleasure, for purposes of visa issuance, refers to
legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or services nature. The new rule also states that travel for the primary purpose of obtaining United States citizenship for a child by giving birth in the United States is not a legitimate visitor activity.
According to the US State Department, birth tourism poses risks to national security:
- “The birth tourism industry is also rife with criminal activity, including international criminal schemes, as reflected in federal prosecutions of individuals and entities involved in that industry.”
Under the primary purpose test, a consular officer must consider a visa applicant’s primary
(or principal) purpose of travel to evaluate the applicant’s eligibility for the requested visa classification. All of a visa applicant’s intended activities in the United States are considered in
determining the applicant’s eligibility for a visa. The US State Department’s guidance to consular officers on this point—that an ‘‘alien desiring to come to the United States for one principal, and one or more incidental, purposes should be classified in accordance with
the principal purpose’’—has remained unchanged for well over 30 years.
An entire ‘‘birth tourism’’ industry has evolved to assist pregnant women from other countries to come to the United States to obtain U.S. citizenship for their children by giving birth in the United States, and thereby entitle their child to the benefits of US citizenship. Birth tourism companies advertise their businesses abroad by promoting the citizenship-related benefits of giving birth in the United States. Companies tout a broad range of benefits for the U.S. citizen child and eventually its family, including, but not limited to, access to free education, less pollution, retirement benefits, the ability to compete for jobs in the U.S. government, and the ability for the whole family to eventually immigrate to the United States. The visa officer knows this.
So what should Evan do at the visa interview? She should bring evidence with her to the interview confirming that the primary purpose of her travel is to attend the wedding and that she will return home after the wedding is over. Evidence could include:
1. Copy of the wedding announcement;
2. All correspondence about the wedding including any scheduled parties, rehearsals, hotel recommendations/reservations, etc.;
3. Employment verification letter from Evan’s employer confirming that she has time off to attend the wedding;
4. Copies of pay stubs and tax returns;
5. Copy of Evan’s lease agreement;
6. If delivery arrangements have been made at a hospital in India, a copy of the agreement.
Under this new rule, if a pregnant woman cannot prove that having birth in the US is not the primary reason for travel, the visa application will be denied.
F1/M1 students and the online classes ban is rescinded!!
The Administration agreed to rescind a directive that would have barred F1 and M1 international college students from the U.S. if their colleges offered classes entirely online in the fall semester.
F-1 students pursue academic coursework and M-1 students pursue vocational coursework while studying in the United States.
The Administration’s initial position was that nonimmigrant students within the United States were not permitted to take a full course of study through online classes. If students found themselves in this situation, they were required to leave the country or take alternative steps to maintain their nonimmigrant status such as a reduced course load or appropriate medical leave.
Harvard University and the Massachusetts Institute of Technology sued the U.S. government in federal court two days later calling the directive "arbitrary and capricious" and seeking to have it reversed and declared unlawful. US District Court Judge Allison Burroughs stated announced that the parties came to an agreement and that the government will rescind this policy.
The administration took an unfair position which was to ban foreign students from taking online courses during the Pandemic. It is great news that the policy was rescinded.
Immigration Court Fee Increase Is Enjoined:
On January 18, 2021, a D.C. federal judge issued a partial injunction delaying implementation of increases in immigration court fees for foreign nationals in removal proceedings. The enjoined fee increases were scheduled to take effect on January 19th.