Young Dong Kim v. Eric H. Holder, Jr.
737 F.3d 1181
| 7th Cir. | 2013Background
- Kim (and family) entered U.S. on B-2 visas in 2003; wife Ko later obtained F-1 status and Kim obtained derivative F-2 status in 2004.
- Ko’s F-1 (and thus Kim’s F-2) was terminated in January 2006 after the school reported she stopped attending in November 2005; Ko’s reinstatement request was denied by USCIS in June 2006.
- Kim applied to adjust status based on an approved I-140 in August 2007; USCIS denied adjustment because he had not maintained continuous lawful status and was out of status for more than 180 days prior to filing.
- DHS issued a Notice to Appear charging Kim with removability for visa overstay; IJ found Kim removable and ineligible for adjustment; BIA affirmed.
- Kim argued the BIA should have considered ICE’s 2011 prosecutorial-discretion memorandum and that Ko’s loss of status resulted from DSO error (i.e., through no fault or technical reasons).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA should have applied ICE prosecutorial-discretion memorandum | Kim: BIA should consider memorandum and exercise discretion | Govt: Kim failed to raise before Board; discretion not reviewable; BIA lacks authority listed in memo | Court: Jurisdiction bars review of prosecutorial-discretion decisions under 8 U.S.C. §1252(g); BIA not bound to apply memorandum |
| Whether Kim maintained continuous lawful status required for adjustment | Kim: Loss of status was due to DSO mistake/Ko’s illness; thus excusable (no fault or technical reason) | Govt: USCIS found Ko stopped attending Nov 2005; denial of reinstatement final; Kim out of status >180 days before August 2007 filing | Court: Kim was out >180 days; neither no-fault nor technical exceptions apply; denial affirmed |
| Whether IJ and BIA should defer to or independently review conflicting fact findings (USCIS vs IJ) | Kim: Conflict exists; BIA should have independently reviewed and credited IJ’s finding that Ko attended through Jan 2006 | Govt: USCIS’s discretionary reinstatement denial is not reviewable by IJ/BIA; any date discrepancy is irrelevant | Court: No meaningful conflict—both placed termination around Jan 16, 2006; USCIS reinstatement denial is unreviewable, so discrepancy immaterial |
| Whether Kim exhausted administrative remedies regarding DSO inaction/technical-violation theory | Kim: Raised now on review as basis for excusing status lapse | Govt: Issue not raised before BIA; exhaustion required under 8 U.S.C. §1252(d)(1) | Court: Kim failed to exhaust this argument before the Board; claim forfeited |
Key Cases Cited
- Cece v. Holder, 733 F.3d 662 (7th Cir.) (standard of review and deference when BIA adopts IJ decision)
- Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837 (1984) (deference to reasonable agency statutory interpretations)
- Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999) (prosecutorial discretion in immigration enforcement generally not judicially reviewable)
- Arobelidze v. Holder, 653 F.3d 513 (7th Cir.) (failure to exhaust administrative remedies normally bars raising issue in federal court)