Eugeniusz Wojciechowicz v. William Barr ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 8, 2020
Decided July 13, 2020
Before
DIANE P. WOOD, Circuit Judge
AMY C. BARRETT, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-3460
EUGENIUSZ WOJCIECHOWICZ, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A 029-604-552
WILLIAM P. BARR,
Attorney General of the United States,
Respondent.
ORDER
Eugeniusz Wojciechowicz, a 62-year-old citizen of Poland who moved to the
United States more than three decades ago, sought a waiver of inadmissibility under
8 U.S.C. § 1182(h) after he was denied admission in 2019 for having been convicted of a
crime involving moral turpitude. The immigration judge denied Wojciechowicz’s
application because he did not show extreme hardship and he failed to demonstrate
that he merited a favorable exercise of discretion. The Board of Immigration Appeals,
without reaching the question of hardship, upheld the decision to deny his application
No. 19-3460 Page 2
as a matter of discretion. Because we lack jurisdiction to review Wojciechowicz’s
challenge to the Board’s discretionary determination, we dismiss his petition.
I. Background
Wojciechowicz came to the United States in 1987 on a tourist’s visa and has lived
here ever since, working in construction. He married Irena Anchim in 1999 and became
a lawful permanent resident in 2004. After the financial crisis in 2008, while working as
a subcontractor for companies that sell windows (which he installed), Wojciechowicz
double-billed for his work, stealing at least $100,000. In 2011, he pleaded guilty to two
counts of theft by deception, 720 ILCS § 5/16-1(a)(2), (b)(6); theft by unauthorized
control, 720 ILCS § 5/16-1(a)(1), (b)(6); and forgery, 720 ILCS § 5/17-3(a)(1), (d)(1). The
court sentenced him to two years of probation and paid $87,000 in restitution.
In March 2019, after returning from a trip to Poland for his sister’s funeral,
Wojciechowicz was stopped at O’Hare International Airport and deemed inadmissible
for having been convicted of a crime involving moral turpitude. 8 U.S.C.
§ 1182(a)(2)(A)(i)(I). He then sought a waiver of inadmissibility under 8 U.S.C.
§ 1182(h). Under § 1182(h)(1)(B), the Attorney General may waive the ground of
inadmissibility applicable to Wojciechowicz (the crime of moral turpitude) if denial of
admission would result in extreme hardship to a lawfully resident family member.
See Palma-Martinez v. Lynch, 785 F.3d 1147, 1149 (7th Cir. 2015).
At a hearing before the immigration judge in June 2019, Wojciechowicz and his
wife (a United States citizen) testified about his application for a waiver of
inadmissibility, describing the extreme hardship that she and their two children (also
United States citizens) would suffer if he were removed. Wojciechowicz testified that he
was the sole income-earner for his family. Irena had stopped working when she
married him in 1999, choosing to raise their children, manage the family’s finances, and
care for her physically and mentally disabled brother who lived nearby. She also
suffered depression, for which she took medication. Wojciechowicz, who paid for his
daughter’s college tuition, opined that her studies “would be over” if he were removed.
Also, his family could not follow him to Poland because his children do not speak
Polish. Indeed, the family had “nothing” in Poland; he had only one surviving sister
there and no property.
After a hearing, an immigration judge denied Wojciechowicz’s application for a
waiver. The judge explained first that, although she was sympathetic to
No. 19-3460 Page 3
Wojciechowicz’s concerns, neither a “change in the family’s standard of living” nor the
emotional hardship commonly experienced by separated families rose to the requisite
level of “extreme hardship.” The judge added that she had “considered all of the
proposed hardship factors in Respondent’s case in aggregate.” In the alternative, the
judge also denied the waiver as a matter of discretion based on the seriousness of
Wojciechowicz’s financial crime. She acknowledged his positive equities—his lengthy
stay in the United States, the hardship that his three United States citizen family
members would experience, and the fact that he had completed his criminal sentence—
but found these “heavily” outweighed by the seriousness of his scheme that lasted at
least three years and bilked a construction company of more than $100,000. See 8 C.F.R.
§ 1212.7(d) (“[D]epending on the gravity of the alien’s underlying criminal offense,”
even extreme hardship might not warrant a favorable exercise of discretion.).
The Board of Immigration Appeals upheld the immigration judge’s decision to
deny Wojciechowicz’s application as a matter of discretion and dismissed the appeal.
Like the immigration judge, the Board noted the considerations that weighed in his
favor (his 30 years living in the United States, his business ownership, his marriage to a
United States citizen and their two United States citizen children, as well as the sentence
he already had served and the $87,000 in restitution he had paid) but found these
outweighed by his years-long fraudulent scheme that ended only when he was
confronted by the construction company’s owner. This was a “very serious adverse
factor.” The Board did not reach the issue of hardship.
II. Analysis
In this petition, Wojciechowicz challenges the denial of his application for a
waiver on two bases. First, he argues that the immigration judge’s decision, as
supplemented by the Board’s, 1 was flawed because she failed to apply “required”
discretionary factors in denying his application as a matter of discretion. Second, he
argues that the immigration judge failed to weigh cumulatively the hardship factors,
including his age, his clean postconviction record, his family’s ties to the United States,
and his wife’s depression.
As a threshold matter, we lack jurisdiction to consider the agency’s discretionary
denial of a request for a waiver of inadmissibility under 8 U.S.C. § 1182(h). Id.1
When, as here, the Board dismisses an appeal from an immigration judge’s decision and supplements
that decision, this court reviews both decisions together. Simental-Galarza v. Barr, 946 F.3d 380, 383 (7th
Cir. 2020) (per curiam).
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§ 1252(a)(2)(B)(i); Cisneros v. Lynch, 834 F.3d 857, 861–62 (7th Cir. 2016). Indeed, unless a
constitutional or legal question is present, we lack authority to review the Attorney
General’s discretionary denial of this waiver. Simental-Galarza, 946 F.3d at 383; Cisneros,
834 F.3d at 861–62.
Neither of Wojciechowicz’s arguments raises a legal question. First, his argument
that the Board did not apply requisite discretionary factors boils down to an argument
that just one factor weighs against him and many weigh in his favor, and that is
tantamount to asking this court to reweigh the discretionary factors. See Papazoglou
v. Holder, 725 F.3d 790, 794–95 (7th Cir. 2013); Khan v. Mukasey, 517 F.3d 513, 517
(7th Cir. 2008); see also Quito v. Barr, 948 F.3d 83, 93–94 (2d Cir. 2020).
Second, Wojciechowicz cannot manufacture a legal argument by asserting that
the immigration judge (and the Board, by not reaching the question) failed in the
hardship analysis to consider certain material facts—such as his rehabilitation and
restitution or his wife’s depression. Although Wojciechowicz tries to cast this issue as a
legal error, it is in essence a challenge to the agency’s exercise of discretion and thus one
that the panel may not review. Cisneros, 834 F.3d at 866. An immigration judge (or the
Board for that matter) is not required to evaluate each factor in checklist fashion. Id.
While a “wholesale failure to consider evidence” would be a legal error, id. (citations
omitted), the immigration judge did not ignore “wholesale” his evidence of hardship.
And even though the Board declined to reach the issue of hardship (having found the
overall discretionary determination dispositive), it highlighted several of the factors that
Wojciechowicz insists it should have considered—his residence in the United States
since 1987, his longstanding business ownership, his 20-year marriage to a United States
citizen, his two United States citizen children, and his payment of $87,000 in restitution.
For these reasons, we DISMISS the petition for lack of jurisdiction.