Kim v. Holder

Bd. did not err in ordering alien’s removal after his petition to adjust his status to that of lawful permanent resident had been denied due to alien’s failure to establish that he had been in lawful immigration status for 180-day period prior to his application to adjust his status. Record showed that alien’s F-2 status had been terminated on January 16, 2006, when United States Citizenship and Immigration Services (USCIS) terminated F-1 status of alien’s wife due to her non-attendance at school, and alien did not file his petition for change of status until August of 2007. While alien contended that USCIS mistakenly terminated his wife’s F-1 status, Bd. lacked jurisdiction to review USCIS’s discretionary denial of wife’s motion to reinstate her student status. Ct. also rejected alien’s claim that Bd. should have used prosecutorial discretion under 8 CFR section 1003.1(b) and (d) instead of ordering that he be removed because he no longer had valid visa to remain in country.