                               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.
