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Keywords

summary judgmentburden of proofnaturalizationrescission
summary judgmentburden of proofnaturalizationrescission

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Shoo Hwan Kim v. Meese

Facts

Kim, a citizen of the Republic of Korea, was admitted to the United States in 1972 as a nonimmigrant visitor for business. He invested $36,000 in a retail store and applied for an adjustment of status based on his investor status. The INS later discovered that he had sold his business interest before the adjustment was granted and initiated rescission proceedings, arguing that he was ineligible for the investor exemption.

Kim, a citizen of the Republic of Korea, was admitted to the United States in 1972 as a nonimmigrant visitor for business. He invested $36,000 in a retail store and applied for an adjustment of status based on his investor status. The INS later discovered that he had sold his business interest before the adjustment was granted and initiated rescission proceedings, arguing that he was ineligible for the investor exemption.

Issue

Whether the INS properly rescinded Kim's permanent resident status based on his ineligibility for the investor exemption and whether the burden of proof shifted to Kim to demonstrate his lack of intent to work in the United States.

Whether the INS properly rescinded Kim's permanent resident status based on his ineligibility for the investor exemption and whether the burden of proof shifted to Kim to demonstrate his lack of intent to work in the United States.

Rule

In rescission proceedings under section 246 of the Immigration and Naturalization Act, the INS bears the burden of proving that the alien was not eligible for the adjustment of status granted, which must be established by clear, unequivocal, and convincing evidence.

In rescission proceedings under section 246 of the Immigration and Naturalization Act, the INS bears the burden of proving that the alien was not eligible for the adjustment of status granted, which must be established by clear, unequivocal, and convincing evidence.

Analysis

The court found that the INS had met its burden of proof by demonstrating that Kim was ineligible for the investor exemption at the time his adjustment of status was granted. The court held that once Kim conceded his ineligibility for the investor exemption, the burden shifted to him to prove that he had no intent to work in the United States, which he failed to do.

The court found that the INS had met its burden of proof by demonstrating that Kim was ineligible for the investor exemption at the time his adjustment of status was granted. The court held that once Kim conceded his ineligibility for the investor exemption, the burden shifted to him to prove that he had no intent to work in the United States, which he failed to do.

Conclusion

The court affirmed the district court's grant of summary judgment in favor of the government, concluding that the INS had proven Kim's ineligibility for the investor exemption and that Kim did not provide sufficient evidence to support his claim of lack of intent to work.

The court affirmed the district court's grant of summary judgment in favor of the government, concluding that the INS had proven Kim's ineligibility for the investor exemption and that Kim did not provide sufficient evidence to support his claim of lack of intent to work.

Who won?

The government prevailed in the case because it successfully demonstrated that Kim was ineligible for the investor exemption and that he failed to meet his burden of proof regarding his intent to work.

The government prevailed in the case because it successfully demonstrated that Kim was ineligible for the investor exemption and that he failed to meet his burden of proof regarding his intent to work.

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