Hyuk Lim v. Eric H. Holder Jr.
FILED OPINION (DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT and RICHARD R. CLIFTON) DENIED. SST Authoring,. FILED AND ENTERED JUDGMENT. 
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HYUK JOON LIM ,
ERIC H. HOLDER, JR., Attorney
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 6, 2013*
Filed March 26, 2013
Before: Diarmuid F. O’Scannlain, Stephen S. Trott,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Trott
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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LIM V . HOLDER
The panel denied Hyuk Joon Lim’s petition for review of
the Board of Immigration Appeals’ decision finding him
ineligible for cancellation of removal for failure to establish
the requisite continuous physical presence in the United
The panel held that Lim did not qualify for the continuous
presence exception available to aliens who served in active
duty in the United States Armed Forces, under 8 U.S.C.
§ 1229b(d)(3), because he was absent from this country while
completing mandatory military service in the South Korean
armed forces. The panel held that Congress had a rational
basis for limiting the exception to aliens serving in our
Michael S. Cabrera, Law Offices of Michael S. Cabrera,
Huntington Park, California, for Petitioner.
Susan Bennett Green, United States Department of Justice,
Office of Immigration Litigation, Washington, D.C., for
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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LIM V . HOLDER
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TROTT, Circuit Judge:
Hyuk Joon Lim, a native and citizen of South Korea,
petitions for review of a decision by the Board of
Immigration Appeals (“Board”) ordering his removal from
the United States because he violated the terms of his student
Lim contends the Board erred in concluding he was
statutorily ineligible for cancellation of removal because he
did not have the required ten years of continuous presence in
the United States immediately preceding his application for
relief, as required by 8 U.S.C. § 1229b(b)(1), (d)(1).
We have jurisdiction over this timely petition pursuant to
8 U.S.C. § 1252(a)(1), which we deny.
Lim claims he first entered the United States in 1989, at
the age of 18. He returned to South Korea from December
1994 to August 1998 and served in its military from May
1995 to May 1998. He came back from South Korea in 2001
on a visitor’s visa, which he converted to a student visa on
July 16, 2004. By not staying in school and by taking a job
at a store in Los Angeles, he violated the terms of his status.
Lim was served with a Notice to Appear on February 27,
2006, and proceedings commenced on March 2, 2006. Lim
concedes the truth of these facts. To have accrued ten years
of continuous physical presence before being served with the
Notice to Appear, he would have needed to be in the United
States since February 27, 2006.
LIM V . HOLDER
Lim conceded that he could not satisfy the “continuous
presence” demands of this statute because he had been out of
the country from 1994 to 1998 while completing mandatory
military service in the South Korean armed forces. In an
attempt to overcome this deficiency, he argued that his
absence should not count against him because of “the unique
military relationship between the United States and South
Korea,” citing a 1953 mutual defense treaty between the two
allies. In support of his contention, he invoked “due process”
and by implication the right to equal protection under the law.
He asserted that he qualified for the special continuous
presence exception available to honorably discharged aliens
who have served for twenty-four months “in active duty
status in the Armed Forces of the United States.” See
8 U.S.C. § 1229b(d)(3).
Cancellation of removal is a form of discretionary relief
which does not give rise to a “substantive interest protected
by the Due Process Clause.” Munoz v. Ashcroft, 339 F.3d
950, 954 (9th Cir. 2003). Insofar as Lim asserts that
Congress somehow violated constitutional commands when
it limited the exception upon which he relies to aliens serving
in the U.S. military, we review congressional policy only to
determine whether it rationally advances a legitimate
government purpose. Reno v. Flores, 507 U.S. 292, 305–06
(1993). Moreover, the Supreme Court has stated that “over
no conceivable subject is the legislative power of Congress
more complete than it is over” the admission of aliens.
Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320,
339 (1909); accord Shaughnessy v. United States ex rel.
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LIM V . HOLDER
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Mezei, 345 U.S. 206, 210 (1953) (“[T]he power to expel or
exclude aliens [is] a fundamental sovereign attribute . . .
largely immune from judicial control.”). Lim asserted that
service in a foreign military “controlled by the U.S. should
count as service in the U.S. military.” The Board was not
persuaded by Lim’s novel theory.
The government advances an unassailable argument in
support of the rational basis of the statute’s limitation to
aliens serving in our military. The government points out that
aliens serving in our military are available for deployment
wherever they are needed, whereas an alien serving in the
South Korean military — or for that matter any other military
— has not been shown to be available for deployment at will
by our government. Thus, the limited exception fashioned by
Congress functions as a valuable quid pro quo in return for
assistance in our national defense. The rule advocated by
Lim would not. In this vein, the government directs us to
8 U.S.C. §§ 1439 and 1440, which make naturalization
available on preferential terms to persons who have served in
our armed forces. The Supreme Court has indicated that this
preference expresses “the gratitude of the country toward
aliens who render service in its armed forces in its defense.”
Tak Shan Fong v. United States, 359 U.S. 102, 107 (1959).
We suppose that Congress as a policy matter could extend the
privilege Lim seeks to persons serving in the armed forces of
our allies, but the short and conclusive answer is that it has
not done so.
In what amounts to tortured logic, Lim asserts that our
opinion in Daberkow v. United States, 581 F.2d 785 (9th Cir.
1978), supports his argument. We held in Daberkow that
LIM V . HOLDER
United States citizen-relatives of a German officer killed in
joint military exercises with the United States could not use
the Federal Tort Claims Act (FTCA) to sue the United States
government. Id. at 788. In so holding, we pointed out that
not even United States military personnel can follow this
legal path against our government. Lim illogically claims
that it follows from Daberkow that he, as a foreign citizen
who was formerly in another nation’s military, is entitled to
equal constitutional footing with aliens in our armed forces
who are not able to sue our government using the FTCA, and
that therefore, he is entitled to the same immigration benefit
as his supposed counterparts — all as a matter of
constitutional imperative. Suffice it to say that we find this
fanciful argument to be unconvincing.
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