Young Dong Kim v. Eric H. Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1626

YOUNG DONG KIM,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General of the United States

Respondent.

On Petition for Review of a Final Order of

the Board of Immigration Appeals.

A099 061 763.

ARGUED NOVEMBER 1, 2012 — DECIDED DECEMBER 16, 2013

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit

Judges.

ROVNER, Circuit Judge. Young Dong Kim petitions for

review of a final order of removal issued by the Board of

Immigration Appeals (“BIA” or “Board”). The Board deter-

mined that Kim was ineligible to adjust his status to that of

lawful permanent resident because he failed to maintain

2 No. 12-1626

continuous lawful nonimmigrant status prior to applying for

adjustment. We conclude that Kim’s petition must be denied.

I.

Kim, his wife Jung O. Ko, and their two children are

citizens of South Korea who were admitted to the United States

on August 6, 2003, as nonimmigrant visitors for pleasure. Their

B-2 visas allowed them to remain in the United States until

February 2, 2004. They received an extension of this temporary

period until August 2, 2004. On April 21, 2004, Kim’s wife, Ko,

applied to change her status to that of a nonimmigrant student

and her F-1 visa was granted on June 28, 2004. As a beneficiary

of his wife’s application, Kim’s status was changed to that of

the spouse of a nonimmigrant student, also known as F-2

status. Kim’s F-2 status was valid so long as his wife main-

tained her F-1 status.1

On January 16, 2006, Ko’s F-1 status and, consequently,

Kim’s F-2 status, were terminated for reasons that will become

apparent below. On May 9, 2006, Ko applied to reinstate her F-

1 status with the United States Citizenship and Immigration

Services (“USCIS”). On June 5, 2006, USCIS denied Ko’s

application. Citing 8 C.F.R. § 214.2(f)(16), the Acting District

Director explained:

1

At that time, Kim’s status and that of his children depended on Ko’s

status as a student. After Kim applied for adjustment of status, his case was

consolidated with those of his wife and children in the agency below. The

BIA’s final order of removal applied to Kim, Ko and their children, and our

ruling on Kim’s petition also applies to the entire family.

No. 12-1626 3

You are deemed ineligible to file for a reinstatement

of status to F-1 because you failed to establish to the

satisfaction of the Service, that the violation of status

resulted from circumstances beyond your control.

You claimed that your failure to maintain your F[-]1

status was caused by circumstances beyond your

control because of a serious illness. The letter from

your doctor shows that you had been under his care

starting December 17, 2005 through January 13,

2006. On June 2, 2006, your previous school was

contacted and informed the Service that you

stopped attending classes starting November 6,

2005. The school also stated that they do not know

the reason why you stopped attending your classes.

You have failed to inform your school DSO about

your illness and as a result, your status was termi-

nated by Goal Training, Inc. due to subject failure/s.

Therefore, there is no other alternative than to deny

the application for reinstatement.

Administrative Record (“A.R.”) at 292-93.2

2

A “DSO” is a “Designated School Official.” In order for a school to be

certified for the Student and Exchange Visitor Program (“SEVP”), the school

must have dedicated employees for assisting and overseeing enrolled

students holding F and M visas. DSOs must have an office at the school and

be accessible to the F and/or M students at their school. They must also

update and maintain student records in the Student and Exchange Visitor

Information System (“SEVIS”). See 8 C.F.R. § 214.3(l);

http://studyinthestates.dhs.gov/schools/dso (last visited November 8, 2013).

4 No. 12-1626

On July 7, 2006, Ko filed a motion to reopen or reconsider

the June 5, 2006 decision. The District Director denied Ko’s

motion on May 15, 2008:

The motion allegedly indicates that the student,

Jung O. Kim, has not been out of status for more

than 5 months at the time of filing the request for

reinstatement. To reiterate, the previous DSO,

Tatiana Hamilton, was contacted on June 2, 2006.

She stated that the student stopped attending her

classes starting November 6, 2005. Additionally, the

DSO stated that the school was never informed of

the reason why the student stopped attending her

classes and as a result, her status was terminated by

Goal Training, Inc. Further, on April 15, 2008, the

new DSO of Goal Training, Inc., Helen Andrusik,

was contacted. Ms. Andrusik confirmed that the

information provided by the previous DSO’s [sic] is

highly accurate. She also stated that the student[’]s

failing grades are likely caused by the attendance

problems. Therefore, based on these facts, it was

concluded that you fell out of status for over 5

months before your request for reinstatement was

filed.

A.R. at 294-95.

While Ko’s motion to reopen or reconsider was still

pending, Kim became the beneficiary of an approved immi-

grant visa petition for an alien worker, also known as a Form

I-140 visa petition. In August 2007, Kim moved to adjust his

status to that of lawful permanent resident based on his

No. 12-1626 5

approved I-140 visa petition. In July 2009, the USCIS denied

Kim’s application to adjust his status, finding that he was

ineligible because he had failed to maintain continuous lawful

status since entering the United States. In particular, the USCIS

noted that Kim’s F-2 status was terminated in January 2006

when Ko lost her F-1 status. And, of course, Ko’s request for

reinstatement of student status had been denied on June 5,

2006. Because Kim had failed to maintain lawful status for

more than 180 days before applying to adjust his status, the

USCIS deemed him ineligible to adjust his status under

8 U.S.C. § 1255(I). See also 8 U.S.C. § 1255(k)(2).

In October 2009, the Department of Homeland Security

(“DHS”) issued Kim a Notice to Appear, charging him with

being removable because he had overstayed his visa. See

8 U.S.C. § 1227(a)(1)(B). At a May 20, 2010 hearing before an

immigration judge (“IJ”), Kim acknowledged that he was

admitted to the United States on August 6, 2003 as a non-

immigrant B-2 visitor, that he was granted F-2 status on June

29, 2004, and that his F-2 status was terminated on January 16,

2006. But he denied that he remained in the United States

without authorization after that date and denied that he was

removable as charged. At this hearing and at another hearing

in August 2010, Ko testified regarding the circumstances of the

termination of her student status. Ko said that she stopped

attending classes in February 2006 after the school wrongfully

terminated her status for non-payment of tuition. She also

testified that she became ill in January 2006 and could not

attend school for that reason. Kim argued that his failure to

maintain legal status from January 2006 through May 2008 was

due to circumstances beyond his control and should be

6 No. 12-1626

excused for that reason. He also maintained that his failure to

maintain legal status was due to technical reasons, a failure

which could also be legally excused.

The IJ found Kim removable and determined that he was

ineligible for adjustment of status. Noting that Kim’s F-2 status

terminated on January 16, 2006, the IJ found that Kim’s status

was not reinstated or extended at any time by the DHS, and

thus he had not maintained continuous lawful status as

required. The IJ rejected Kim’s argument that Ko was dropped

from the school register for technical reasons or through no

fault of her own, and that the USCIS should have reinstated

her. The IJ noted that he lacked the authority to reinstate Ko’s

student status because the decision was within the sole

discretion of the USCIS. Moreover, the IJ determined that Ko

did not maintain her status during the time she was seeking

reopening or reconsideration of the initial decision, distin-

guishing her case from that of In re L-K, 23 I&N Dec. 677 (BIA

2004). The IJ also concluded that the circumstances presented

did not fall within the “technical reasons” exception that Kim

sought to apply. 8 U.S.C. § 1255(c) and (k). Because Kim’s

status was dependent on that of Ko, Kim was therefore subject

to removal as charged. In addition to being removable as

charged, Kim was not eligible for adjustment of status due to

his failure to continuously maintain lawful nonimmigrant

status. The IJ granted Kim, Ko and their children voluntary

departure.

Kim filed a timely appeal to the BIA, arguing that the

termination of his lawful status in January 2006 was improper,

and that his failure to maintain legal status was due to excus-

able technical reasons. The BIA dismissed the appeal. The

No. 12-1626 7

Board noted that neither the IJ nor the BIA have the authority

to review the decision by USCIS denying Ko’s application to

reinstate her student status. The BIA also agreed with the IJ

that Ko and Kim’s failure to maintain lawful status could not

be characterized as being through no fault of their own or for

technical reasons under 8 U.S.C. § 1255(c)(2) and 8 C.F.R.

§ 1245.1(d)(2). Accordingly, the BIA concluded that Kim was

ineligible to adjust his status, and the appeal was dismissed.

Kim now petitions for review of the Board’s order.

II.

In his petition for review, Kim contends that the BIA’s

review should have included consideration of a June 17, 2011

Memorandum issued by the Director of U.S. Immigration and

Customs Enforcement (“ICE”) setting forth guidance on the

exercise of prosecutorial discretion. He also contends that the

BIA erred when it agreed with the IJ’s findings because the

findings of the IJ and USCIS were in conflict. A more thorough

review of the facts, Kim argues, would reveal that the DSO

made a mistake and that Ko’s status was terminated through

no fault of her own.

“When the Board agrees with the decision of the immigra-

tion judge, adopts that decision and supplements that decision

with its own reasoning, as it did here, we review the immigra-

tion judge's decision as supplemented by the Board.” Cece v.

Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review

the findings of fact for substantial evidence and reverse only if

the evidence compels a different result. Cece, 733 F.3d at 675-76.

We review questions of law de novo, deferring to the Board's

reasonable interpretation set forth in precedential opinions

8 No. 12-1626

interpreting the statute. Chevron, U.S.A., Inc. v. Natural Re-

sources Def. Council, Inc., 467 U.S. 837, 842–43 (1984); Cece, 733

F.3d at 668-69.

A.

In June 2011, the ICE Director issued a Memorandum

setting forth guidance on the exercise of prosecutorial discre-

tion in immigration enforcement actions. See

www.ice.gov/doclib/secure-communities/pdf/prosecutorial-

discretion-memo.pdf (last visited Nov. 22, 2013) (hereafter

“Memorandum”). The Memorandum acknowledged that ICE

has limited resources to remove those who are in the United

States illegally, and that the agency should therefore use its

resources to ensure that enforcement priorities are met. In

particular, the Memorandum specified that the agency’s

limited resources should be used to promote national security,

border security, public safety, and the integrity of the immigra-

tion system. In civil immigration enforcement actions, the

Memorandum encouraged authorized ICE personnel to

exercise prosecutorial discretion in a manner that promoted the

stated goals. The Memorandum defined the broad range of

enforcement decisions to which this discretion could be

applied, set forth the particular agency personnel authorized

to exercise that discretion, and provided an extensive list of

factors to consider in exercising prosecutorial discretion.

Kim first faults the BIA for failing to consider the issue of

prosecutorial discretion. Citing 8 U.S.C. § 1252(d)(1), the gov-

ernment contends that we should not reach this issue because

Kim failed to raise it before the Board. But section 1252(d)(1)

applies to the exhaustion of “administrative remedies available

No. 12-1626 9

to the alien as of right,” and the Memorandum, by its own

terms, does not “create any right or benefit, substantive or

procedural, endorsable at law by any party in any administra-

tive, civil or criminal matter.” Memorandum, at 6. See also 8

U.S.C. § 1252(d)(1) (“A court may review a final order of

removal only if—(1) the alien has exhausted all administrative

remedies available to the alien as of right”). Moreover, the

Memorandum by its terms allows for an exercise of prosecuto-

rial discretion at virtually any stage of a removal action,

including on appeal.

But there are at least two other reasons that Kim’s claim for

an exercise of prosecutorial discretion by the BIA must fail.

First, the BIA does not possess the prosecutorial discretion

detailed in the Memorandum. See 8 C.F.R. § 1003.1(b) and (d)

(setting forth the appellate jurisdiction of the BIA and the

Board’s powers generally). Indeed, the Memorandum itself

lists the ICE employees who possess prosecutorial discretion

and the members of the Board are not among those listed.

Memorandum, at 3. Second, exercises of prosecutorial discre-

tion by the DHS generally are immune from judicial review.

See Reno v. American-Arab Anti-Discrimination Committee, 525

U.S. 471, 482-92 (1999). See also 8 U.S.C. § 1252(g) (“Except as

provided in this section and notwithstanding any other

provision of law (statutory or nonstatutory) … no court shall

have jurisdiction to hear any cause or claim by or on behalf of

any alien arising from the decision or action by the Attorney

General to commence proceedings, adjudicate cases, or execute

removal orders against any alien under this chapter.”).

As the Supreme Court noted:

10 No. 12-1626

There was good reason for Congress to focus special

attention upon, and make special provision for,

judicial review of the Attorney General's discrete

acts of “commenc[ing] proceedings, adjudicat[ing]

cases, [and] execut[ing] removal orders”-which

represent the initiation or prosecution of various

stages in the deportation process. At each stage the

Executive has discretion to abandon the endeavor,

and at the time IIRIRA was enacted the INS had

been engaging in a regular practice (which had come

to be known as “deferred action”) of exercising that

discretion for humanitarian reasons or simply for its

own convenience.

American-Arab Anti-Discrimination Committee, 525 U.S. at 483-

84. Whether to exercise the prosecutorial discretion outlined in

the Memorandum plainly comes within the purview of section

1252(g) and the Supreme Court’s decision in the American-Arab

Anti-Discrimination Committee case. We therefore lack jurisdic-

tion to review this claim.

B.

The USCIS found that Ko stopped attending school on

November 6, 2005, and that she failed to inform the DSO why

she stopped attending classes. Ko claimed that she stopped

coming to class because of a serious illness but the USCIS

rejected this explanation because a letter from her doctor

demonstrated that she was under his care from December 17,

2005 through January 13, 2006, a period that began approxi-

mately five weeks after Ko stopped attending classes. The IJ

found that Ko’s non-immigrant student status was terminated

No. 12-1626 11

“on or about January 16, 2006,” which resulted in Kim losing

his derivative status as well. The BIA agreed with this finding.

In his petition for review, Kim contends that the finding by the

USCIS that Ko stopped attending school in November 2005

was in error. Kim asserts that he provided documentary

evidence that Ko was in class through January 2006 and that

the DSO simply made a mistake. Kim also points out that the

IJ found that Ko attended classes until January 2006, a finding

that conflicts with that of the USCIS conclusion that Ko

stopped attending classes on November 6, 2005. In light of this

discrepancy, Kim argues that the BIA should not have deferred

to the fact-findings of the IJ but should have independently

reviewed the record and concluded that Ko lost her student

status through no fault of her own, due to an error by the

school’s DSO. Because Ko lost status through no fault of her

own, Kim argues that he remained eligible to adjust his status

based on his approved I-140 visa petition.

An alien may be eligible for adjustment of status “by the

Attorney General, in his discretion and under such regulations

as he may prescribe, to that of an alien lawfully admitted for

permanent residence if (1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an immi-

grant visa and is admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately available

to him at the time his application is filed.” 8 U.S.C. § 1255(a).

However, an alien who “is in unlawful immigration status on

the date of filing the application for adjustment of status or

who has failed (other than through no fault of his own or for

technical reasons) to maintain continuously a lawful status

since entry into the United States” is not eligible for adjustment

12 No. 12-1626

of status. 8 U.S.C. § 1255(c)(2). For immigrants seeking an

employment-based adjustment of status, as Kim was seeking

here, the statute provides an exception to the requirement of

continuous lawful status if the “alien, subsequent to such

lawful admission has not, for an aggregate period exceeding

180 days—(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or (C) otherwise

violated the terms and conditions of the alien's admission.” 8

U.S.C. § 1255(k).

Kim’s lawful status was terminated as of January 16, 2006

at the latest, when Ko lost her student status. Kim does not

dispute that USCIS denied Ko’s motion to reinstate her student

status on June 5, 2006. Kim filed his application for an adjust-

ment of status more than a year later, in August 2007. The

record indisputably establishes, therefore, that Kim was out of

lawful status for more than 180 days prior to filing his applica-

tion to adjust his status.

That failure to maintain lawful status could be excused if

Kim could demonstrate that it occurred through no fault of his

own or that it was due to technical reasons. 8 U.S.C.

§ 1255(c)(2); 8 C.F.R. § 1245.1(d)(2). The regulation clearly

spells out what is meant by “fault” and “technical reasons.” In

relevant part, the regulation states:

No fault of the applicant or for technical reasons.

The parenthetical phrase other than through no fault

of his or her own or for technical reasons shall be

limited to:

(I) Inaction of another individual or organization

designated by regulation to act on behalf of an

No. 12-1626 13

individual and over whose actions the individual

has no control, if the inaction is acknowledged by

that individual or organization (as, for example,

where a designated school official certified under

§ 214.2(f) of 8 CFR chapter I or an exchange program

sponsor under § 214.2(j) of 8 CFR chapter I did not

provide required notification to the Service of

continuation of status, or did not forward a request

for continuation of status to the Service); or

(ii) A technical violation resulting from inaction of

the Service (as for example, where an applicant

establishes that he or she properly filed a timely

request to maintain status and the Service has not

yet acted on that request). An individual whose

refugee or asylum status has expired through

passage of time, but whose status has not been

revoked, will be considered to have gone out of

status for a technical reason.

8 C.F.R. § 1245.1(d)(2). Neither provision could alter the

outcome here. Even if Ko’s motion to reinstate her student

status was a timely filed request to maintain status within the

meaning of 8 C.F.R. § 1245.1(d)(2)(ii), DHS took action by

denying her request on June 5, 2006. Yet Kim did not file his

request to adjust his status until August 2007, more than one

year later and well beyond the 180 day limit. And Kim did not

raise section 1245.1(d)(2)(I) until he filed this petition for

review, failing to exhaust his administrative remedies. See 8

U.S.C. § 1252(d)(1). A failure to exhaust “usually forecloses a

petitioner from raising an issue in federal court that was not

raised before the immigration tribunal.” Arobelidze v. Holder,

14 No. 12-1626

653 F.3d 513, 517 (7th Cir. 2011). No exception to that general

rule applies in this instance.

Finally, there is no real discrepancy between the findings of

the USCIS and the IJ. The USCIS determined that Ko stopped

attending classes in November 2005, and her F-1 student status

was terminated on January 16, 2006. As Ko’s spouse, Kim’s F-2

status terminated that same day. The IJ found that Ko’s student

status was terminated “on or about January 16, 2006." The IJ

also remarked that “Ko dropped out of school in January of

2006.” Any discrepancy about the date would not matter in

any case because neither the IJ nor the BIA may review the

USCIS’s discretionary denial of a motion to reinstate student

status. See 8 C.F.R. § 214.2(f)(16)(ii) (“if the Service does not

reinstate the student, the student may not appeal that deci-

sion.”). See also In re Yazdani, 17 I&N Dec. 626, 628 (BIA 1981)

(“The power, however, to reinstate student status or grant an

extension of nonimmigrant stay lies within the exclusive

jurisdiction of the District Director and neither the immigration

judge nor the Board may review the propriety of the District

Director's determinations.”). Because the IJ and the Board had

no authority to review the USCIS’s reasons for denying

reinstatement, the asserted discrepancy between the findings

of the USCIS and the IJ are irrelevant to Kim’s petition for

review. Moreover, when Ko moved for reinstatement, she

failed to demonstrate that she met the remaining requirements

for reinstatement, including the requirement that the DSO

submit a form recommending reinstatement. See 8 C.F.R.

§ 214.2(f)(16)(I). Kim offers no evidence in his petition that Ko

met that additional requirement, and any error related to the

No. 12-1626 15

date that Ko’s status was terminated could not affect the

outcome here. The petition for review is therefore

DISMISSED IN PART AND DENIED IN PART.