Grazyna Pawlowska v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3790
G RAZYNA E WA P AWLOWSKA, et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A077-773-720, A077-776-306 & A077-776-307
A RGUED S EPTEMBER 9, 2010—D ECIDED O CTOBER 22, 2010
Before W OOD , E VANS, and T INDER, Circuit Judges.
E VANS, Circuit Judge. “Operation Durango” was a sting
operation conducted jointly by the former Immigration
and Naturalization Service (INS), the FBI, and the
Social Security Administration from 1998 to 2001.
Briefly put, some individuals seeking permanent
resident status in the United States were brought to a
storefront that appeared to be a travel agency by a “bro-
2 No. 09-3790
ker,” who then introduced them to an undercover
agent posing as a corrupt immigration officer. In ex-
change for a fee considerably higher than normal (here,
$5,000 compared to around $200 for a regular applica-
tion), the undercover agent would place stamps in the
individuals’ passports indicating legal permanent
resident status. Usually, the brokers caught up in the
operation were prosecuted criminally, while the indi-
viduals who sought permanent resident status were
referred for removal proceedings. See generally Mozdzen v.
Holder, ___ F.3d ___ , 2010 WL 3463705, at *1 (7th Cir.
Sept. 7, 2010) (describing Operation Durango). The peti-
tioner, Grazyna Ewa Pawlowska, a native and citizen
of Poland, was one of the latter individuals.1
Upon being charged with removability, Pawlowska
requested a continuance to pursue adjustment of status
based on an approved visa petition filed by her brother,
a U.S. citizen, about ten years previously. In the alterna-
tive, she requested voluntary departure. After an eviden-
tiary hearing, the immigration judge (IJ) refused to grant
a continuance, finding that it would be futile because
he would ultimately deny the request for adjustment of
status based on Pawlowska’s attempt to illegally obtain
an immigration benefit in conjunction with Operation
Durango. The IJ also denied Pawlowska’s request for
voluntary departure, again based on her participation in
1
Pawlowska’s sons, Bartlomiej and Szymon Pawlowski, are
also petitioners here but make no separate arguments. Thus,
we will continue to refer to Pawlowska individually.
No. 09-3790 3
the operation. The Board of Immigration Appeals (BIA)
affirmed, and Pawlowska filed a petition for review.2
Back in 1997, Pawlowska was admitted to the U.S. as
nonimmigrant visitor. Shortly thereafter, her two sons
were also admitted. All three failed to depart when their
visas expired. In 1999, Pawlowska came to the atten-
tion of the INS through her participation in Opera-
tion Durango. At the evidentiary hearing before the IJ,
Pawlowska testified that she was duped by the opera-
tion. In other words, she thought that she had obtained
permanent resident status legally from an actual immi-
gration officer. The requested fee of $5,000 3 did not strike
her as unusual, as the officer said it would make the
process go faster. Pawlowska knew, however, that she
faced a ten-year wait for adjustment of status through
her brother’s petition. This amount of time, she said,
was “too long for me.”
Randy Beckwith, a special agent with the Depart-
ment of Homeland Security (DHS), also testified at the
hearing. In addition to providing background on Opera-
tion Durango, Beckwith described two memoranda
2
Although the IJ and BIA granted voluntary departure to
Pawlowska’s sons, who were not involved in Operation
Durango, those grants automatically terminated when they
joined their mother’s petition for review. See 8 C.F.R.
§ 1240.26(i).
3
Interestingly, the Polish immigrants in Mozdzen paid
$12,000, but that was to cover a total of three permanent
residency seekers.
4 No. 09-3790
prepared by the previous case agent, which generally
stated that Pawlowska paid $5,000 for passport stamps
and was told that, if she were ever questioned, she
should falsely say that she obtained permanent resident
status legally through her U.S. citizen brother. Clarence
Robinson, another DHS agent, testified that he posed as
a corrupt immigration officer in connection with Opera-
tion Durango. Robinson stated that, in that capacity, he
did not identify himself as an immigration officer or
wear a uniform and that there was nothing about the
storefront indicating that it was an official government
office. According to Robinson, Pawlowska paid him
$5,000 for a passport stamp, and he provided her with
a “cover story” consistent with the one described in
the case memoranda.
The IJ determined that Pawlowska’s testimony was
incredible and that she “deliberately and intentionally
sought to obtain an Immigration benefit by paying a
bribe to an Immigration officer.” Although she was not
statutorily barred from voluntary departure, the IJ
held that Pawlowska did not merit that relief as a dis-
cretionary matter because her participation in Operation
Durango outweighed any positive equities, such as “the
duration of her presence in the United States or gain-
ful employment, [or] the lack of any other criminal
record.” The IJ also refused to grant a continuance, ex-
plaining that he would “deny an application for adjust-
ment of status, even if visa numbers were current, in
the exercise of discretion because . . . Pawlowaska[ ]
has paid a bribe to an Immigration official in order
to obtain permanent residence.” He distinguished our
No. 09-3790 5
holding in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.
2004), because there, the only reason for the continuance
denial was that certain administrative requests had
not been processed.
The BIA affirmed, holding that there was no error in the
IJ’s decision to deny voluntary departure as a matter
of discretion because Pawlowska lacked credibility in
asserting that she had been duped into participating
in Operation Durango. The BIA also held that there
was no error in the IJ’s decision to deny a continuance
because an adjustment of status application would
not merit a favorable exercise of discretion. The
BIA agreed with the IJ that Pawlowska’s case was dis-
tinguishable from Subhan because she was not simply
waiting for administrative paperwork to be approved.
Where, as here, the BIA agrees with the IJ’s decision
but supplements his reasoning, we review the IJ’s deci-
sion as supplemented by the BIA. Juarez v. Holder, 599
F.3d 560, 564 (7th Cir. 2010). Before we reach the merits,
however, we must first determine whether we have
jurisdiction to consider Pawlowska’s claims. The gov-
ernment contends that we do not because she is chal-
lenging discretionary determinations, which are unre-
viewable. Pawlowska, on the other hand, argues that
our precedent allows for an exception regarding con-
tinuances and that the decision regarding voluntary
departure involves a reviewable question of law.
We begin with the IJ’s denial of Pawlowska’s request
for a continuance to pursue adjustment of status. To
repeat, the IJ refused to grant a continuance because
6 No. 09-3790
he found that, even if a visa were immediately available
to Pawlowska, he would deny her request for adjust-
ment of status as a discretionary matter because she
intentionally sought to bribe an immigration officer in
conjunction with Operation Durango. As Pawlowska
admits, we generally have no jurisdiction to review
denials of discretionary relief from removal, pursuant
to 8 U.S.C. § 1252(a)(2)(B). Subpart (i) of that section
specifically prohibits review of “any judgment re-
garding the granting of relief under section 1182(h),
1182(i), 1229b [cancellation of removal], 1229c [voluntary
departure], or 1255 [adjustment of status] of this title.” 4
Furthermore, we held in Leguizamo-Medina v. Gonzales,
493 F.3d 772, 775 (7th Cir. 2007), that § 1252(a)(2)(B)(i)
bars judicial review of a denial of a continuance, where
the continuance was ancillary to a contemplated applica-
tion for cancellation of removal. Because § 1252(a)(2)(B)(i)
“puts the [cancellation of removal] decision beyond
review, . . . any opinion one way or the other on the
propriety of the steps that led to that decision would be
an advisory opinion.” Id. As we previously noted, in
addition to cancellation of removal, § 1252(a)(2)(B)(i)
also expressly precludes judicial review of a decision
regarding adjustment of status. Leguizamo-Medina there-
fore dictates that a continuance decision ancillary to an
4
The Supreme Court’s recent decision in Kucana v. Holder, ___
U.S. ___, 130 S. Ct. 827 (2010), is inapplicable because the
government opposes jurisdiction under § 1252(a)(2)(B)(i),
not § 1252(a)(2)(B)(ii). See Jurarez, 599 F.3d at 564 n.4.
No. 09-3790 7
adjustment of status application, such as the one at
issue here, is also out of reach.
Nevertheless, Pawlowska argues that we have juris-
diction under the exception in Subhan. There, the peti-
tioner was seeking to adjust his status and requested a
continuance to allow him to obtain necessary labor certifi-
cations, but the IJ denied the continuance without ex-
planation. We held that the decision could be reviewed
because the IJ failed to “giv[e] a reason consistent with
the [adjustment of status] statute,” which effectively
precluded the petitioner from pursuing adjustment of
status. Subhan, 383 F.3d at 595. Here, in contrast, the
IJ clearly gave a reason consistent with the statute for
denying the continuance—namely, that he would ulti-
mately deny adjustment of status as a discretionary
matter because of Pawlowska’s misconduct in conjunc-
tion with Operation Durango. See Ceta v. Mukasey, 535
F.3d 639, 647 (7th Cir. 2008) (“[W]e have explained that
‘foot-dragging, criminal activity, or [an IJ’s determina-
tion as to the ultimate] lack of merit’ of an adjustment
application constitute valid reasons for denying a con-
tinuance request.”). Thus, we lack jurisdiction to re-
view the continuance decision.
We now turn to the IJ’s denial of Pawlowska’s request
for voluntary departure, which, to repeat, he refused to
grant because her participation in Operation Durango
outweighed any positive factors. Again, § 1252(a)(2)(B)(i)
appears to block our review of this issue. Jurisdiction
“over an appeal from denial of a request for an order of
voluntary departure” is also precluded by § 1229c(f).
8 No. 09-3790
Pawlowska attempts to get around these bars by charac-
terizing the issue as a question of law—namely,
whether the IJ ignored binding precedent in failing to
fully explore factors favoring relief. See 8 U.S.C.
§ 1252(a)(2)(D) (restoring jurisdiction to review “con-
stitutional claims or questions of law”).
The government argues that we need not address
the jurisdictional bars because Pawlowska’s voluntary
departure argument has been procedurally defaulted.
See id. at § 1252(d)(1) (providing that a court may
review a final order of removal only if “the alien has
exhausted all administrative remedies available to the
alien as of right”); Ishitiaq v. Holder, 578 F.3d 712, 717
(7th Cir. 2009) (finding procedural default where the
petitioner did not raise his claim before the BIA). Indeed,
at oral argument, Pawlowska’s counsel all but conceded
that his client did not argue before the BIA that the IJ
failed to explore favorable factors. But, although the
government characterizes it as a “threshold” matter, the
exhaustion requirement is not jurisdictional. Korsunskiy
v. Gonzales, 461 F.3d 847, 849 (7th Cir. 2006). So we
proceed with our analysis of that issue first.
Unfortunately for Pawlowska, this is the end of the
line, because she has not raised a reviewable legal issue
sufficient to overcome the jurisdictional bars that we
previously discussed. In his decision, the IJ mentioned
Pawlowska’s positive equities, such as her long presence
in the U.S., gainful employment, and lack of a criminal
record, but decided to deny voluntary departure any-
way because of her participation in Operation Durango.
No. 09-3790 9
Pawlowska’s claim that the IJ improperly balanced
the equities therefore is really a request to review the
merits of a discretionary judgment. And, as such, it is
unreviewable. See Khan v. Mukasey, 517 F.3d 513, 517
(7th Cir. 2008) (finding no jurisdiction where the peti-
tioner contended that the IJ improperly balanced the
equities in deciding whether to grant a waiver); see also
Ishitiaq, 578 F.3d at 716 (“[The petitioner] cannot over-
come the jurisdictional bar against reviewing dis-
cretionary decisions by cloaking rationale he does not
agree with as a legal error.”). Thus, we lack jurisdiction
to review the voluntary departure decision.
For these reasons, we must dismiss Pawlowska’s peti-
tion for review. Having said that, however, we wish to
note that her situation is not without sympathy. She
was caught up in a shady sting operation that in some
countries (even Poland, perhaps) might represent the
way that business is actually done. There is a chance,
albeit perhaps only a small one, that Pawlowska
thought that to get the relief she sought required
paying someone off. Accordingly, Pawlowska’s peti-
tion for review is D ISMISSED for lack of jurisdiction.
10-22-10