* This amended decision was originally issued as an “unpublished amended decision” filed on

April 13, 2011. On May 16, 2011, the court designa ted the amended opinion as one recommended for fulltext publication. RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0136a.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

M YRON K UKALO

, G ANNA K UKALO

, Petitioners,

v.

E RIC H. H OLDER

, J R ., United States Attorney

General,

Respondent. X - - - -

> , - - - - N Nos. 09-3338/4289

On Petition for Review of an Order from the

United States Board of Immigration Appeals.

Nos. A070 865 956; A070 865 957.

Decided and Filed: April 13, 2011 *

Before: MARTIN, GIBBONS, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Margaret Wong, MARGARET WONG & ASSOCIATES CO., LPA,

Cleveland, Ohio, fo r Petitioners. Christopher McGreal , James A. Hunolt, Jonathan

Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington , D.C., for

Respondent.

_____________________

AMENDED OPINION

_____________________

JULIA SMITH GIBB ONS, Circuit Judge. In this consolidated action,

petitioners–appellants Myron and Ganna Kuk alo appeal a final order of the Board of

Immigration Appeals (“BIA”), denying their applications for asy lum, withholding of

removal, and protection under the Convention Against Torture (“CAT”), as well as an

1Nos. 09-3338/4289 Kukalo, et al. v. Holder Page 2

order of the BIA denying their motion to reopen foran adjustment of status. For the

reasons that follow, we deny the Kukalos’ petitions for review.

I.

Myron and Ganna Kukalo (collectively, the “Kukalos”) are husband and wife and

citizens of the Ukraine. They entered the United States on February 10, 1994, on B-1

non-immigrant visas with authorization to remain for a temporary period not to exceed

August 9, 1994. After the expiration of their visas, Myron timely filed an application

for asylum on October 3, 1994, and Ganna w as included on the application as a

derivative. On July 28, 2004, the Department of Homeland Security (“DHS”) served the

Kukalos with Notices to Appear before the Immigration Court, charging them as subject

to removal from the United States pursuant to Immigration and Nationality Act (“INA”)

§ 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), and INA § 101(a)(15), 8 U.S.C. § 1101(a)(15).

With this action, DHS referred the Kukalos’ asylum case to the Immigration Court.

During their removal hearings, both Myron and Ganna conce ded removability but

requested relief based on asylum, withholding of removal, and CAT. In the meantime,

Myron’s employer, Piper Plumbing, Inc., filed an I-140 immigrant petition for alien

workers with a priority date of January 13, 2003. The petition was approved on January

30, 2007, and indicated “that [Myron Kukalo] is in the United States and will apply for

adjustment of status.” The Notice of Action approvi ng the petition stated that the

information submitted with the petition showed that Myron was “not eligible to file an

adjustment of status application at this time.” The Kukalos later filed I-485 applications

for adjustment of status.

On May 25, 2007, Imm igration Judge William Evans, Jr. (“IJ”) heard both

Myron and Ganna’s application for asylum, withholding of removal, and relief under

CAT. Myron testified for both of the Kuka los, and the IJ found Myron’s testimony

credible. In his testimony Myron revealed several grounds on which he felt the court

could find evidence of past persecution as well as a well-founded fear of future

persecution. First, a former KGB worker who lived in Myron’s village allegedly

threatened Myron on three occasions. Myron testified, “He said that people like meNos. 09-3338/4289 Kukalo, et al. v. Holder Page 3

should not live in this world,” a threat Myron attributed to his “political thinking.”

Second, Myron testified that because he owned land, he received pho n e calls and one

visit from people he suspected to be associated with mafia groups. These calls largely

involved requests for money, but Myron never provided them with any money. Myron

suffered no instances of physical harm. Myron also testified that his futu re in the

Ukraine “would be same thing that i t was before,” indicating a fear of similar threats

from the people who had threatened him before.

In addition to Myron’s testimony, the Kukalos submitted a letter from a friend

in the Ukr aine detailing the unrest and violence in the country, the Ukraine Country

Reports on Human Rights Practices 2006, and a number of published reports regarding

crime and corruption in the Ukraine. Myron also submitted a written statement with his

asylum application discussing the same information offered in his testimony before the

IJ.

Based on the testimony and the exhibits, the IJ found that the evidence was

insufficient “to demonstrate either past persecution or a well-founded fear of future

persecution based on race, religion, nationality, membership in a particular social group

or political opinion.” The IJ found that the evidence proved Myron had experienced

“attempts at extortion” and that the Ukraine was “experiencing some degree of

lawlessness,” but “[n]either the general condition of lawlessness nor criminal extortion

or harassment or threats []rise to the level of persecution.” The IJ found no evidence that

the Kukalos had been victims of persecution in the past or that the Kukalos had a wellfounded fear of persecution in the future “because the only fears expressed by the

[Kukalos] are that they will be subject to the same treatment on their return to Ukraine

as they’ve experienced.” The IJ found the Kukalos failed to sustain the burden of

establishing their claim for asylum and thus necessarily failed to meet the burden for

withholding of removal. They also failed to provide any evidence that they would be

subject to torture required for their CAT protection claim. Furthermore, the IJ held that

the Kukalos failed to establish their eligibility for voluntary departure.Nos. 09-3338/4289 Kukalo, et al. v. Holder Page 4

The BIA issued a separate opinion on March 20, 2009, dismissing the Kukalos’

appeal of the IJ decision. The BIA rejected Myron’s c ontention that he suffered past

persecution or had a well-founded fear of future persecution. The BIA found that “the

unfulfilled threats from an individual in his neighborhood and the extortionist demands

from persons [Myron] believes were affiliated with the mafi a were not severe enough

t o qualify as persecution.” Moreover, the BIA held that because Myron failed to

establish eligibility for asylum, he necessarily could not establish withholding of

removal or protection under CAT. The BIA went on to say, “In any event, the

respondent has failed to meaningfully appeal the Immigration Judge’s denial of his

withholding of removal and CAT applications.”

On March 31, 2009, the Kukalos filed a motion to reopen to apply for adjustment

of status, claiming eligibility for adjustment under INA § 245(a), 8 U.S.C. § 1255(a).

This motion was based on the I-140 that was filed by Piper Plumbing, Inc., on behalf of

Myron with a priority date of January 13, 2003, and was approved by DHS on January

30, 2007. Immigrations and Customs Enforcement (“ICE”) opposed the motion, arguing

that the Kukalos had failed to make a prima facie showing of el igibility for relief in

order to qualify for reopening. The BIA denied the Kukalos’ motion on September 30,

2009, on the grounds that they were “unable to establish prima facie eligibility for

adjustment of status.” The BIA noted: (1) the Kukalos’ lawful nonimmigration status

expired on August 9, 1994; (2) their asylum application was not filed until October 3,

1994; and (3) a visa petition under INA § 203(b)(3)(A)(iii) with a priority date of

January 13, 2003, was approved in January 2007. The BIA found that the Kukalos had

“not adequately explained why they believe that a government delay in processing an

asylum application which they concede was filed after their lawful nonimmigrant status

e xpired provides an exception to the continuous lawful status requirement forsection

245 of the [INA].” Thus, the BIA denied their motion.

The Kukalos now appeal the Mar ch 20, 2009, and September 30, 2009, BIA

decisions. After briefing, these cases were consolidated on July 29, 2010.Nos. 09-3338/4289 Kukalo, et al. v. Holder Page 5

II.

We first address the appeal of the BIA’s March 20, 2009, denial of the Kukalos’

applications for asylum, withholding of removal, and CAT protection. Where the BIA

reviewed the IJ’s decision de novo and issued a separate opinion, we review the BIA’s

opinion as the final agency determination. M organ v. Keisler

, 507 F.3d 1053, 1057 (6th

Cir. 2007) (citing G rijalva v. Gonzalez

, 212 F. App’x 541, 547 (6th Cir . 2007)).

Questions of law are reviewed de novo

, but we give substantial deference to the BIA’s

interpret ations of the INA and its accompanying regulations. K halili v. Holder

, 557

F.3d 429, 435 (6th Cir. 2009). The BIA’s factual findings are reviewed under the

deferential substantial evidence standard and “must be upheld if supported by

reasonable, substantial, and probati v e evidence on the record considered as a whole.”

Mikhailevitch v. I.N.S.

, 146 F.3d 384, 388 (6th C ir. 1998) (internal quotation marks

om itted) (quoting I .N.S. v. Elias-Zacarias

, 502 U.S. 478, 481 (1992)). Under this

standard, we will reverse if the evidence presented “‘not only supports a contrary

conclusion, but indeed compels it.’” I d. (quoting Klawitter v. I.N.S.

, 970 F.2d 149, 152

(6th Cir. 1992)). We do not reverse simply on the grounds that we would have decided

the matter differently. K oliada v. I.N.S.

, 259 F.3d 482, 486 (6th Cir. 2001). Rather, we

look to the ev idence presented to determine if “a reasonable factfinder would have to

conclude” that the Kukalos established their claims for asylum, withholding of removal,

or protection under CAT. See Elias-Zacarias , 502 U.S. at 481.

A.

An applicant for asylum bears the burden of establishing that he is a “refugee”

as defined by the INA. 8 U.S.C. § 1158(b)(1)(B); K oliada

, 259 F.3d at 486–87. In order

to qualify for asylum, the Kukalos must establish that they qualify as refugees “‘either

because [they have] suffered actual past persecution or because [they have] a wellfounded fear of future persecution.’” K oliada

, 259 F.3d at 487 (quoting 8 C.F.R.

§ 208.13(a)–(b)).

Establishing that harassment rose to the level of “persecution” is not an easy task.

See Gilaj v. Gonzales

, 408 F.3d 275, 285 (6th Cir. 2005) (“The numerous decisionsNos. 09-3338/4289 Kukalo, et al. v. Holder Page 6

rendered by the various panels of this c ourt upon review of BIA decisions on

applications for asylum make clear that the conduct on which the application for asylum

is based must go beyond what might reasonably be characterized as mere harassment in

order to rise to the level of persecution.”). Furthermore, demonstrating that the evidence

compels this court to find that persecution occurred is even more difficult. We conclude

that the Kukalos failed to present evidence of such persecution, past or future.

To determine whether past persecution occurred, we evaluate the overall context

of the applicant’s situation and view t he evidence in the aggregate. H aider v. Holder

,

595 F.3d 276, 287 (6th Cir. 2010) (citing Gilaj

, 408 F.3d at 285; Stenaj v. Gonzales

, 227

F. App’x 429, 433 (6th Cir. 2007)). “Persecution must rise above the level of

harassment or discrimination without physical punishment, infliction of harm, or

significant deprivation of liberty.” Mohammed v. Keisler , 507 F.3d 369, 371 (6th Cir.

2007) (citing Mikhailevitch

, 146 F.3d at 390). Furthermore, “persecution . . . ‘requires

more than a few isolated incidents of verbal harassment or intimidation, unaccompanied

by any physical punishment, inflicti on of harm, or significant deprivation of liberty.’”

Pilica v. Ashcroft , 388 F.3d 941, 950 (6th Cir. 2004) (quoting Mikhailevitch

, 146 F.3d

at 390). In H aider

, this court noted, “Typicall y, though, the ‘[t]ypes of actions that

might cross the line from harassment to persecution include: detention, arrest,

interrogation, prosecut ion, imprisonment, illegal searches, confiscation of property,

surveillance, beatings, or tortu r e.” H aider

, 595 F.3d at 286–87 (quoting Zacarias v.

Gonzales

, 232 F. App’x 458, 462 (6th Cir . 2007)). Although the court gave no

indication that this was an exhaustive list, Myron’s factual allegations do not resemble

any of these examples, n or do they rise beyond mere harassment. Furthermore, the

Kukalos must establish that the previ o us abuse was a result of their membership in a

protected category, which is only tenuously suggested by the record. M ohammed

, 507

F.3d at 371.

Myron presented credible testimony of a few instances of threats and requests for

money. These encounters do nothing to show that he was “specifically targeted” and not

“merely a victim of indiscriminate treatment.” G ilaj

, 408 F.3d at 285. In fact, it appearsNos. 09-3338/4289 Kukalo, et al. v. Holder Page 7

that these incid ents were a result of merely random criminal acts. S ee Lumaj v.

Gonzales

, 462 F.3d 574, 577–78 (6th Cir. 2006) (noting that because an incident was

isolated, with “no evidence

. . . that the attack was in any way more than a random

criminal act,” it was less likely to be suff icient for a finding of persecution). He and

Ganna experienced no physical harm or threats of any specific consequence. Because

something more is required to prove past persecution, the Kukalos have failed to

establish that this court should be compelled to find that they experienced past

persecution as a result of their political beliefs. We uphold the decision of the BIA with

respect to this prong and find that the Kukalos experienced no past persecution for the

purposes of their asylum application.

Because the Kukalos have failed to establish pas t persecution, they must

independently establish a well-founded fear of future persecution. I d. at 578. A wellfounded fear of future persecution is esta blished by: (1) a fear of persecution in one’s

home country on account of race, religion, nationality, membership in a particular social

group, or political opinion; (2) a reasonable possibility of suffering persecution should

one return; and (3) an unwillingness or inability to return to that country due to the fear.

Pilica

, 388 F.3d at 950. This “well-founded fear” must be both subjectively genuine and

objectively reasonable. Mapouya v. Gonzales , 487 F.3d 396, 412 (6th Cir. 2007).

The Kukalos rely on the same evidenc e to establish their fear of future

persecution that laid the u nstable foundation for their claim of past persecution. The

evidence presented—including a letter from a friend in the Ukraine, the Ukraine Country

Reports on Human Rights Practices, a number of published reports regarding crime and

corruption in the Ukraine, and a statement written by Myron—offers little more than an

impression of general crime and lawle ssness. Isolated incidents unrelated to any

protected status do not compel us to find that the Kukalo s had a well-founded fear of

future persecution. We therefore affirm the decision of the BIA to reject the Kukalos’

application for asylum because the record does not compel a finding of past persecution

or a well-founded fear of future persecution upon their return to the Ukraine.Nos. 09-3338/4289 Kukalo, et al. v. Holder Page 8

1 As a preliminary matter, family members are not granted derivative status with respect to

withholding of removal. Thus we do not review Ga nna Kukalo’s claim for withholding of removal. See

Castellano-Chacon v. I.N.S. , 341 F.3d 533, 545 (6th Cir. 2003) (“Unlike an application for asylum,

however, a grant of an alien’s application for withholdi ng is not a basis for adjustment to legal permanent

resident status, family members are not granted de rivative status, and it only prohibits removal of the

petitioner to the country of risk, but does not prohibit removal to a non-risk country.”). Regardless,

because her evidence and claims were the same as Myron’s, and because we decline to grant Myron’s

claim, whether derivative status extended to her cl aims for withholding from removal and CAT protection

is irrelevant. B.

The BIA held that Myron “failed to meaningfully appeal the Immigration Judge’s

denial of his withholding of removal and CAT applications.” Furthermore, the BIA

determined that “[b]ecause of the respondent’s failure to establish eligibility for asylum,

he necessarily cannot ‘satisfy the more on erous burden[s] for withholding of removal

[and] . . . the Convention Against Torture.” 1

The BIA did not explain how Myron failed to meaningfully appeal his

withholding of removal and CAT protection claims. In the Kukalos’ brief in support of

their appeal of the IJ’s decision, for their claims for withholding of removal and CAT

prote ction, they simply rely on the evidence presented under their claim for asylum,

stating “[f]or the reasons set forth herein, Respondents have met the higher standard for

withholding of removal

. . . . [and] relief under the Convention Against Torture is also

warranted.” Whether these statements of re liance on earlier arguments present a

meaningful appeal is questionable, but answering this question is unnecessary because

the evidence fails to compel us to f ind that Myron was entitled to relief under either

withholding of removal or CAT.

To establish a claim for withholding of removal, the petitioner must s h ow “a

clear probability that he will be subject to persecution if forced to return to the country

of removal.” P ilica

, 388 F.3d at 951 (citing I.N.S. v. Stevic

, 467 U.S. 407, 413 (1984)).

Becaus e the burden for establishing a claim for withholding of removal is “a more

stringent burden than what is required on a claim for asylum,” and because the Kukalos

failed to establish their claim for asylum, it follows that the Kukalos “also cannot satisfy

the more onerous burden for withholding of removal.” S ee Kaba v. Mukasey

, 546 F.3dNos. 09-3338/4289 Kukalo, et al. v. Holder Page 9

741, 751 (6th Cir. 2008) (citing and quoting Liti v. Gonzales

, 411 F.3d 631, 640 (6th Cir.

2005); Pilica , 388 F.3d at 951; Koliada , 259 F.3d at 489).

The Kukalos similarly fail to meet their heavy burden of proof under CAT. To

obtain relief under CAT, the petitioner must prove “that it is more l i kely than not that

he or she would be tortured if removed to the proposed country of removal.” P ilica

, 388

F.3d at 951 (quoting 8 C.F.R. § 208.16(c)(2)). Although it may be the case that the

inability to estab lish an asylum claim does not necessarily preclude relief under CAT,

see Kamalthas v. I.N.S.

, 251 F.3d 1279, 1293 (9th Cir. 2001), it is not easy to overcome

such a barrier. See, e.g.

, Liti , 411 F.3d at 641 (“[B]ecause the Litis failed to establish

eligibility for asylum, they also cannot meet the heightened requirements for relief under

CAT.”). The Kukalos’ brief states that they have established that there is a clear

probability that Myron would be tortured by the man who previously threatened him or

by members of local corrupt organizations upon his return to the Ukraine, but the brief

offers no evidence to support such a claim beyond that used to buttress the claim for

asyl um. Accordingly, this asser tion fails to compel us to find that the Kukalos are

entitled to relief under CAT.

We affirm the decision of the BIA and deny the Kukalos’ claims for withholding

of removal and CAT protection.

III.

Second, we address the BIA’s September 30, 2009, denial of the Kukalos’

motion to reopen. As stated above, questions of law are reviewed d e novo

, but we give

substantial deference to the BIA’s interpretations of the INA and its accompanying

regulations. K halili

, 557 F.3d at 435. The denial of a motion to reopen a removal order

is reviewed for an abuse of discretion, Denko v. I.N.S.

, 351 F.3d 7 17, 723 (6th Cir.

2003), but the BIA has broad discretion in deciding whether to grant or deny a motion

to reopen, Bi Feng Liu v. Holder , 560 F.3d 485, 489 (6th Cir. 2009) (citing I .N.S. v.

Doherty

, 502 U.S. 314, 323 (1992)). A denial of a motion to reopen will constitute an

abuse of discretion if the denial “was made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible basis such as invidiousNos. 09-3338/4289 Kukalo, et al. v. Holder Page 10

discrimination against a particular race or group.” B alani v. I.N.S.

, 669 F.2d 1157, 1161

(6th Cir. 1982).

“The decision to grant or deny a motion to reopen

. . . is within the discretion of

the [BIA]

. . . .” 8 C.F.R. § 1003.2(a). “A motion to reopen proceedings for the purpose

of submittin g an application for relief must be accompanied by the appropriate

application for relief and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1). The

BIA may deny a motion to reopen because “the movant has not established a prima facie

case for the underlying substantive relief sought.” I .N.S. v. Abudu

, 485 U.S. 94, 104

(1988). This was the precise ground for denial in this case. The Kukalos sought the

underlying substantiv e relief of an adjustment of status pursuant to INA § 245(a),

8 U.S.C. § 1255(a). This provision entitles the Attorney General to adjust the status of

a nonimmigrant to that of a person admitted for permanen t residence. Part of

establishing prima facie eligibility for this adjustment of status involves maintenance of

lawful status. Section 245(c)(2) of the INA, 8 U.S. C. § 1255(c)(2), states that subsection

(a) shall not be applicable to an alien “who has failed (other than through no fault of his

own or for technical reasons) to maintain conti nuously a lawful status since entry into

the U nited States.” There is an exception to this rule, however, for an alien who is

eligible to receive an immigrant visa under a labor certification; INA § 245(k)(2)(A),

8 U.S.C. § 1255(k)(2)(A), states that, “notwithstanding subsection (c)(2),” su bsection

(a) shall not be applicab le to an alien who, “for an aggregate period exceeding 180

days–(A) failed to maintain, continuously, a lawful status.” The regulations define the

parenthetical phrase “no fault of his or her own or for tec hnical reasons” found in

subsection (c)(2) to include “[a] technical viol ation 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).” 8 C.F.R.

§ 1295.1(d)(2)(ii). In addition, “[a]n individual whose refugee or asylum status has

expired through passage of time, but whos e status has not been revoked, will be

considered to have gone out of status for a technical reason.” Id.Nos. 09-3338/4289 Kukalo, et al. v. Holder Page 11

The Kukalos claim that the BIA abused it s discretion because they can adjust

their status under INA § 245 based on Myron’s approved I-140 and, thus, established a

prima facie case for the underlying substantive relief. They argue that the fourteen-year

limbo on their application for asylum (although the application was filed after their

la wful immigration status expired) constitu ted a “technical violation” resulting from

inaction and that this violation allows them to be eligible for adjustment of status. The

Kukalos contend that they “fil ed their asylum application within 180 days of the

expiration of their visas and the application remained pending either with DHS or [the

Executiv e Office for Immigration Review] until March 2009 when they filed their

applications to adjust status.” In making this argument, th e Kukalos have combined the

l anguage of INA § 245(c)(2) and (k). Both provisions “are mutually referential

provisions that operate in the context of adjustment of status under section 245(a) of the

Act.” I n re Serapio Felimon Alania-Martin

, 25 I. & N. Dec. 231, 233 (BIA 2010) (order

sustaining appeal). But “[s]ection 245(k) does nothing more than create a limited

exception from the general prohibition in section 245(c)(2 ) that bars an alien who

engaged in unauthorized employment from adjusting status under section 245(a).” I d.

We will separate our discussion of these two provisions.

Both parties cite an analogous published de cision in which the BIA addressed

whether a pending asylum application can be considered a failure to maintain lawful

status for technical reasons under INA § 245(c)(2). I n re L-K-

, 23 I. & N. Dec. 677 (BIA

2004). The Kukalos contend that L -K- is an improper reading of the INA, but they cite

no cases to support this contention. Although we review questions of law d e novo

, we

must accord substantial deference to the BIA’s interpretations of the INA. Thus, as the

only case cited on the issue, we find L-K- particularly informative.

In L-K-

, the respondent, also a citizen of the Ukraine, entered the United States

as a nonimmigrant visitor. I d. at 678. Unlike the Kukalos, she filed an application for

asylum with DHS before the expi ration of her visa. I d. The application remained

pending as her lawful status expired. I d. DHS referred the application to the

immigration court. I d. After her application for asylum was denied and during theNos. 09-3338/4289 Kukalo, et al. v. Holder Page 12

pendency of her appeal, the respondent had been app roved to receive a diversity visa,

so she submitted an application for an adjustment of status. I d. An immigration judge

granted adjustment, but the BIA reversed. I d. at 678–82. The BIA determined that it

was undisputed that the respondent was not in lawful immigration status a nd, thus,

reached the question of “whether her failure to maintain lawful status was for ‘technical’

reasons by virtue of the pendency of her asylum application that had been filed while she

was in nonimmigrant status.” I d. at 679 (citing INA § 245(c)(2), 8 U.S.C. § 1255(c)(2);

8 C.F.R. § 1245.1(d)(2)(ii)). The BIA held that “8 C.F.R. § 1245.1(d)(2)(ii) relates only

to technical violations of status due to ‘inaction of the [DHS].’

. . . Thus, once the DHS

has acted upon a pending asylum application, the ‘techn ical’ reasons for the violation

cease to exist, and the applicant may no longer be consi dered to be out of status for

technical reasons.” I d. at 681. The BIA also discussed what would constitute “action”

on the part of DHS, including when asylum officers approve, deny, refer, or dismiss the

asylum application. I d. at 680 (citing 8 C.F.R. §§ 1208.14(b), (c); 8 C.F.R. § 1208.19).

In L-K-

, the BIA specifically noted that its “holding is narrow and limited to the

factual scenario at issue in this case,” specifica lly “situations in which an asylum

appl ication was filed while the alien was in nonimmigrant status, the nonimmigrant

status subsequently expired, and the asylum application was referred to the Immigration

Court by the DHS prior to the time the alien applied for adjustment of status.” I d. at 682.

The only fact distinguishing the Kukalos’ case from this narrow holding—that the

Kukalos allowed their nonimmigrant status to expire before filing their asylum

application—is ultimately inconsequential. What is material is that DHS took an action

when it referred the Kuk alos case to the Immigration Court in 2004. As the BIA held

in L-K-

, this action by DHS precludes the Kukalos’ claim that their failure to maintain

lawful status was “for technical reasons.” Moreover, simply looking to the language of

subsection (c)(2), because the Kukalos allowed their visas to expire (before filing their

applications for asylum), they should not be eligi ble to adjust their status under

subsection (a). We find that the BIA in this case did not abuse its discretion in finding

that the Kukalos were unable to make a prima facie showing eligibility for adjustmentNos. 09-3338/4289 Kukalo, et al. v. Holder Page 13

of status under INA § 245(a) because they were prec luded by their failu re to maintain

status under § 245(c)(2).

We must address the Kukalos’ claim under INA § 245(k) separately as L -Kexplicitly limited its reach to aliens subject only to INA § 245(c) restrictions. Subsection

(k) applies to aliens who are eligible to receive certain employment-based immigrant

visas. It states that those aliens “may adjust status pursuant to subsection (a) . . . and

notwithstanding subsection (c)(2)

. . . if–(2) the al ien, subsequent to such lawful

admission has not, for an aggregate period exceeding 180 days–(A) failed to maintain,

cont inuously, a lawful status.” INA § 245(k )(2)(A), 8 U.S.C. § 1255(k)(2)(A). The

Kukalos maintain that because they filed their applications for asylum within this 180-

day limit, the time during which their asylum application was pending should not count

against them because this pendancy constitutes a “technical reason” for their failure to

maintain lawful status. Subsection (k) makes no menti on of an exception for technical

reasons. Indeed this language is only used in subsection (c) of INA § 245. Presumably,

if this language was intended to apply to subsection (k) it would have been included in

the provision. Even if we excise the time of “inaction” by DHS (as is allowed under

subsection (c)), this would ex clude only the time from which the Kukalos applied for

asylum in October 1994 until DHS referred them to the Immigration Court in July 2004.

That still leaves the short time between the expiration of their visas and their application

for asylum as well as the lengthier time from the Notice to Appear in 2004 until the

eventual application for adjustment in 2009. Thus, we find that the Kukalos have clearly

missed the 180-day mark.

The Kukalos failed to establish that they maintained lawful status under either

INA § 245(c)(2) or (k) as required for an a pplication for adjustment under INA § 245(a).

For that reason, we find that the BIA did not abuse its discretion in denying the Kukalos’

motion to reopen as they were “unable to es tablish prima facie eligibility for adjustment

of status.”Nos. 09-3338/4289 Kukalo, et al. v. Holder Page 14

IV.

For the foregoing reasons, we deny the petitions for review.