Piotrowski v. Holder , 547 F. App'x 77 ( 2013 )

13-114-ag
Piotrowski v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of December, two thousand thirteen.
PRESENT:
JOSÉ A. CABRANES,
ROBERT D. SACK,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
KRZYSZTOF PIOTROWSKI,
Petitioner,
v. No. 13-114-ag
ERIC H. HOLDER, JR., United States Attorney
General
Respondent.
_____________________________________
FOR PETITIONER: Glenn T. Terk, Wethersfield, CT.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General
(David V. Bernal, Assistant Director, Dara S.
Smith, Trial Attorney, on the brief) Office of
Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the petition for review is DISMISSED.
Krzysztof Piotrowski, a native and citizen of Poland, seeks review of a December 19, 2012,
decision of the BIA, affirming the June 28, 2011, decision of an Immigration Judge (“IJ”) denying
his application for a waiver based on the existence of a good faith marriage under 8 U.S.C.
§ 1186a(c)(4).1 In re Krzysztof Piotrowski, No. A047 842 391 (B.I.A. Dec. 19, 2012), aff’g No. A047 842
391 (Immig. Ct. Hartford, CT, June 28, 2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
DISCUSSION
Where, as here, “the BIA. adopts the decision of the IJ and merely supplements the IJ’s
decisions . . . we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). Because Piotrowski challenges the denial of a discretionary waiver,
our jurisdiction is limited to constitutional claims and questions of law. See 8 U.S.C. §1252(a)(2)(B)
(limiting jurisdiction to review discretionary denials); id. §1252(a)(2)(D) (stating exceptions for
constitutional claims and questions of law); §1186a(c)(4) (committing to the Secretary of Homeland
Security sole discretion to make credibility determinations and the weight to be afforded to the
evidence). See also Contreras-Salinas v. Holder, 585 F.3d 710, 713-14 (2d Cir. 2009) (holding that
§ 1186a(c)(4) precludes review of credibility and evidentiary weight determinations).
Piotrowski argues that the IJ ignored his explanation that the inconsistencies between his
testimony and statements during a prior agency interview were the result of the lack of an interpreter
at his interview. To the contrary, both the IJ and the BIA explicitly considered that explanation and
rejected it in their respective decisions. The record, therefore, does not support Piotrowski’s
contention that the agency ignored evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
337 n.17 (2d Cir. 2006) (“[W]e presume that an IJ has taken into account all of the evidence before
him, unless the record compellingly suggests otherwise.”).
Piotrowski also contends that the IJ erred by relying solely on the inconsistencies in his
evidence regarding his and his ex-wife’s residences to deny his application, rather than considering
their intent to establish a life together at the time they were married. Although, as Piotrowski
asserts, the central issue in determining whether a marriage is bona fide is the couple’s “inten[t] to
establish a life together at the time of marriage,” Boluk v. Holder, 642 F.3d 297, 303 (2d Cir. 2011)
(internal citation omitted), the IJ may consider the course of the marriage thereafter, including
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To remove the conditional basis of residency, an alien spouse must either jointly petition for removal of the conditions
with his or her citizen spouse, or seek a hardship waiver of the joint petition requirement. 8 U.S.C. § 1186a(c)(1), (4). A
waiver may be granted if the marriage was entered into in good faith and the alien spouse was not at fault in his or her
failure to jointly petition pursuant to paragraph (1). Id. § 1186a(c)(4)(B).
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whether the couple cohabitated, 8 C.F.R. § 1216.5(e)(2)(ii). The IJ did not, therefore, err in
considering whether Piotrowski and his ex-wife resided together during their marriage to determine
his eligibility for a waiver. See id.
Piotrowski’s arguments go solely to the IJ’s determination of “what evidence is credible and
the weight to be given that evidence,” 8 U.S.C. § 1186a(c)(4), and do not raise a colorable
constitutional claim or question of law. See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008)
(“[W]e lack jurisdiction to review any legal argument that is so insubstantial and frivolous as to be
inadequate to invoke federal-question jurisdiction.”). Accordingly, we lack jurisdiction to review his
petition. See 8 U.S.C. § 1186a(c)(4); Contreras-Salinas, 585 F.3d at 713-14.
CONCLUSION
For the foregoing reasons, the petition for review is DISMISSED. As we have completed
our review, any stay of removal that the Court previously granted in this petition is VACATED, and
any pending motion for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
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