Filed: Aug. 26, 2015
Latest Update: Mar. 02, 2020
Summary: 14-154 Blaszczyk v. Lynch BIA A099 882 834 A088 229 878 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
Summary: 14-154 Blaszczyk v. Lynch BIA A099 882 834 A088 229 878 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 ..
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14-154
Blaszczyk v. Lynch
BIA
A099 882 834
A088 229 878
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 26th day of August, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 REENA RAGGI,
10 CHRISTOPHER F. DRONEY,
11 Circuit Judges.
12
13
14 KRZYSZTOF WOJCIECH BLASZCZYK,
15 AGNIESZKA ANNA BLASZCZYK,
16 Petitioners,
17
18 v. 14-154
19 NAC
20 LORETTA E. LYNCH,* UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23
24
25 ________________________________________________________
26 *Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
27 Attorney General Loretta E. Lynch is automatically
28 substituted for former Attorney General Eric H. Holder, Jr.
29
30
1
2 FOR PETITIONERS: Michael E. Piston, Law Offices of
3 Allen E. Kaye, P.C., New York, NY.
4
5 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
6 General; Shelley R. Goad, Assistant
7 Director; Monica Antoun, Trial
8 Attorney, Office of Immigration
9 Litigation, United States Department
10 of Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Krzysztof Wojciech Blaszczyk (“Krzysztof”) and
17 Agnieszka Anna Blaszczyk (“Agnieszka”) (collectively, “the
18 Blaszczyks”), natives and citizens of Poland, seek review of
19 the December 23, 2013, decision of the BIA denying their
20 motion for reconsideration. In re Blaszczyk, Nos. A099 882
21 834, A088 229 878 (B.I.A. Dec. 23, 2013). We assume the
22 parties’ familiarity with the underlying facts and
23 procedural history in this case.
24 Our review is limited to the BIA’s denial of
25 reconsideration because the Blaszczyks did not petition for
26 review of the BIA’s underlying dismissal of their appeal
27 from the IJ’s denial of Krzysztof’s application to adjust
28 status. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d
2
1 Cir. 2006). We review the BIA’s denial of a reconsideration
2 motion for abuse of discretion. Id. Because a motion to
3 reconsider must specify errors of fact or law in the BIA’s
4 decision, 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.
5 § 1003.2(b)(1), the BIA does not abuse its discretion in
6 denying such a motion when it merely repeats arguments that
7 the BIA has previously rejected, see Jin Ming Liu,
439 F.3d
8 at 111.
9 Here, the BIA did not abuse its discretion in denying
10 the Blaszczyks’ motion to reconsider its prior decision. In
11 its first decision, the BIA declined to revisit Matter of
12 Legaspi, 25 I. & N. Dec. 328 (BIA 2010), under which
13 Krzysztof was ineligible to adjust status to lawful
14 permanent resident pursuant to 8 U.S.C. § 1255(i). And in
15 declining to reconsider, the BIA rejected the Blaszczyks’
16 argument that Matter of Estrada, 26 I. & N. Dec. 180 (BIA
17 2013) was a continuation of the flawed reasoning in Matter
18 of Legaspi, and concluded that Matter of Estrada would not
19 change the result in their case.
20 Section 1255(i) makes adjustment of status available to
21 certain applicants who are ineligible to adjust status
22 pursuant to § 1255(a), such as those, like Krzysztof, who
3
1 fail to maintain continuous lawful status since entering the
2 United States. See 8 U.S.C. § 1255(c)(2). In order to
3 adjust status under § 1255(i), the applicant must be a
4 “grandfathered alien,” which the statute and agency
5 regulations define as the beneficiary of a visa petition or
6 application for labor certification filed on or before April
7 30, 2001 (the principal grandfathered alien), or the child
8 or spouse of the principal beneficiary (the derivative
9 grandfathered alien). 8 U.S.C. § 1255(i)(1)(B); 8 C.F.R.
10 § 1245.10(a)(1)(i). In Matter of Legaspi, the BIA held
11 that an alien, such as Krzysztof, cannot obtain
12 grandfathered status from a spousal relationship with a
13 derivative grandfathered alien (here, Agnieszka, who derived
14 that status from her father) because the statute “makes
15 clear that it applies only to the beneficiary of the visa
16 petition and to that principal alien’s spouse or child.” 25
17 I. & N. Dec. at 329-30 (emphasis in original). In Matter
18 of Estrada, the BIA held that the spouse or child of a
19 principal grandfathered alien cannot qualify as a derivative
20 grandfathered alien when the spouse or child relationship
21 was established after April 30, 2001. 26 I. & N. Dec. at
22 184-85.
4
1 Insofar as the Blaszczyks argued that Matter of
2 Estrada was a continuation of the legal error made in
3 deciding Matter of Legaspi, they merely repeated previously
4 rejected arguments and the BIA did not abuse its discretion
5 in denying their motion to that extent. See Jin Ming Liu,
6 439 F.3d at 111. Furthermore, the BIA reasonably concluded
7 that Matter of Estrada would not change the result in the
8 Blaszczyks’ case because Estrada applies only to spouses
9 and children of principal grandfathered aliens, and not to
10 spouses of derivative grandfathered aliens, such as
11 Krzysztof. 26 I. & N. Dec. at 184-85.
12 Finally, contrary to the Blaszczyks’ arguments here,
13 both 8 U.S.C. § 1255(i) and the Supplementary Information to
14 the interim rule amending the relevant regulations
15 explicitly include only “a spouse or child of the principal
16 alien” as a grandfathered alien. 8 U.S.C. § 1255(i)
17 (emphasis added); see Adjustment of Status to That Person
18 Admitted for Permanent Residence; Temporary Removal of
19 Certain Restrictions of Eligibility, 66 Fed. Reg. 16383,
20 16384 (Mar. 26, 2001).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
5
1 removal that the Court previously granted in this petition
2 is VACATED, and any pending motion for a stay of removal in
3 this petition is DISMISSED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
6
