Lim v. Holder

The “continuous presence exception” available to aliens who served in active duty in the United States Armed Forces is a limited exception to cancellation of removal and does not extend to another country’s military.

In 1989, Hyuk Joon Lim came to the United States on a student visa, but returned to South Korea from December 1994 to August 1998 for mandatory military service. He returned from South Korea in 2001 on a visitor’s visa, and converted to a student visa in 2004. However, Lim violated the terms of the student visa by not staying in school and taking a job. He was served with a notice to appear in 2006, where he conceded that he could not satisfy the “continuous presence” demands of the statute due to his mandatory military service in South Korea. He was therefore ineligible for cancellation of removal, and the Board of Immigration Appeals ordered Lim’s removal for violating his student visa. On appeal, Lim argued that he qualified for the “special continuous presence exception” for aliens who have serviced in active duty status in the United States’ Armed Forces for 24 months. The panel rejected Lim’s argument that his service in the Korean military falls within the limited exception created by Congress for military service, stating that the exception was created for military service members deployed for the purpose of United States national defense. The panel refused to extend this exception to another country’s military. PETITION DENIED.