Immigration — status adjustment

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United States Court of Appeals For the Seventh Circuit

Civil

Immigration — status adjustment

Where an alien was a nonimmigrant spouse of a nonimmigrant student, he could not obtain permanent resident status after his wife’s status was revoked.

“[T]here 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 decision.’). 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 date that Ko’s status was terminated could not affect the outcome here.”

Petition Denied.

12-1626 Kim v. Holder

On Petition for Review of a Final Order of the Board of Immigration Appeals, Rovner, J.