Beata Zarzecki v. Merrick B. Garland

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-3267

BEATA ZARZECKI,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General

of the United States,

Respondent.

____________________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A089-783-701

____________________

SUBMITTED SEPTEMBER 4, 2024 — DECIDED JANUARY 3, 2025

____________________

Before ROVNER, BRENNAN, and LEE, Circuit Judges.

ROVNER, Circuit Judge. Beata Zarzecki unsuccessfully peti-

tioned the Attorney General, through the immigration courts

of the Department of Homeland Security, to use his discretion

to adjust her status from “removeable” to “lawful permanent

resident,” and now asks for our review. Appellate courts are

accustomed to evaluating decisions from lower courts using

either a de novo standard of review, or some form of review

2 No. 21-3267

that grants deference to the decisions of those courts—such as

clear error or abuse of discretion. In the field of immigration

law, however, Congress has opted to place discretionary de-

cision-making regarding adjustment of status in the hands of

the immigration courts alone. Consequently, the Immigration

and Nationality Act strips jurisdiction from this court to re-

view any discretionary determination that the immigration

courts make regarding whether or not to grant adjustment of

status. There is, however, an exception: this court can review

the decisions of the immigration judge and Board of Immigra-

tion Appeals (Board) for legal error, including constitutional

error. Zarzecki argues that the Board erred legally when it de-

nied her adjustment of status, but we find otherwise. We

therefore must dismiss her petition for review for lack of ju-

risdiction.

I.

Zarzecki, a Polish national, entered the United States on

April 28, 1989, on a six-month tourist visa, but has remained

in this country ever since. In 1998, she married her husband,

Janusz Zarzecki, who is now a United States citizen, as is their

daughter, Katarzyna, who was born in 1996. Zarzecki also has

a son from a previous marriage who remained in Poland

when Zarzecki left and was raised by Zarzecki’s parents. On

February 28, 2013, the government began removal proceed-

ings against Zarzecki who then applied for adjustment of sta-

tus based on an immigrant visa petition filed by her citizen

spouse, Janusz.

Zarzecki’s actions leading up to, and conviction following,

a fatal drunk driving accident took center stage at her adjust-

ment of status hearing held in October 2013. At that hearing,

the following facts emerged: On July 26, 2005, Zarzecki began

No. 21-3267 3

drinking at the house where she worked as a caregiver. She

called her husband to pick her up, but then decided to drive

home after she tired of waiting for him. On her way home,

while driving an estimated 80 miles per hour in a 55 mile per

hour zone, she struck a car from behind, killing Charlotte Ry-

mark and severely injuring her husband, Robert. Toxicology

testing revealed that Zarzecki had a blood alcohol serum level

of 254 mg/dl (0.254 BAC. The legal limit for intoxication is 80

mg/dl or .08 BAC). In a negotiated plea deal, Zarzecki pled

guilty to “felony aggravated driving under the influence” and

was sentenced to nine years in prison, of which she served

eight years and three months.

The immigration judge also considered two other contacts

with law enforcement. In 2003, police arrested and charged

Zarzecki with aggravated assault following an argument with

her husband which occurred when he arrived home from

work to find her drinking. The charges were later dropped.

And in 2004, Zarzecki was charged (but not convicted) of

driving without insurance.

Although the fatal accident laid the heaviest weight on the

scale against adjustment of status, Zarzecki hoped that evi-

dence about her mental health treatment would be one of the

mitigating factors favoring adjustment. At her hearing before

the immigration judge, Zarzecki testified about her mental

health. She stated that she was first diagnosed with depres-

sion at the age of seventeen in Poland, but she did not receive

any treatment until 1996, when she was in the United States

and a medical provider prescribed Prozac. She testified that

sometimes, because she felt better, she would stop taking the

medication for two to three months at a time, and then would

use alcohol to help her cope with the symptoms of depression

4 No. 21-3267

as they arose because it “worked faster.” R. 122. According to

Zarzecki, approximately a year and a half after she was re-

leased from prison, she started having suicidal thoughts and

admitted herself to a hospital for two weeks. She submitted

no documents or other evidence regarding that hospitaliza-

tion.

Other than her own testimony, the only evidence about

her mental health treatment came from a few sources, with

superficial information. First, Zarzecki submitted a three-sen-

tence letter, dated September 11, 2018, from Dr. Bindu

Gandhiraj which stated, “To Whom It May Concern: This is

to notify you that I have been seeing Beata Zarzecki at the

VNA since 08/08/2016 for treatment of depression and anxi-

ety. She has been very compliant with her treatment and fol-

lows all the recommendations. Please contact our office if you

have any questions.” R. 203. Zarzecki submitted three other

cursory pieces of evidence regarding treatment for mental

health issues. The first was a “Treatment Note” from the Illi-

nois Department of Corrections dated April 7, 2009, reflecting

a diagnosis for depression disorder, and noting that Zarzecki

wished to stop taking her medication for depression. R. 399.

The second was a notice addressed to the Immigration and

Naturalization Office from the Alcohol Drug Safety Interven-

tion Inc. and Polish American Family Services, dated March

13, 2013, shortly after her release from prison. That note

stated, “Mr. Janusz Zarzecki, husband of Beata Zarzecki con-

tacted our program to arrange treatment relating to her 2005

DUI arrest. Mrs. Zarzecki will attend and participate in the

PROGRAM FOR PROBLEMATIC USE OF ALCOHOL at our

clinic as soon as she will be released.” R. 374. Zarzecki pro-

vided no certificate of completion or any evidence that she at-

tended the program at all. Finally, the record contains a single

No. 21-3267 5

email from Dr. Poprawski of the First Chicago Neuroscience

clinic to Janusz Zarzecki confirming his wife’s appointment

on March 12, 2013. R. 376. Again, Zarzecki submitted no evi-

dence about the nature of the appointment or whether she at-

tended it.

Zarzecki testified that she did not attend group counseling

and did not seek any counseling at all until a year and a half

after her release from prison, explaining that once she got

home from prison, she “thought [she] would feel better” and

“didn’t want to hear about seeing any doctors.” R. 125. Zar-

zecki alleged, without external evidence, that she had been

diagnosed with agoraphobia and did not want to leave the

house.

When asked whether she had attended any drug and al-

cohol treatment programs, she testified that “while in jail” she

“tried to attend this kind of meeting[]” and “also once [she]

got back home, there was a facility close by” but “they made

[her] feel horrible,” she “couldn’t stand being there,” and they

were “more troublesome than they should be.” R. 118–19. On

redirect examination, Zarzecki elucidated that she prefers

one-on-one therapy to “meetings with other people” because

she can “talk about [her] stuff” and she does not “like lis-

ten[ing to] other people[’s] problems … they complain very

much, you know,” and this makes her feel “depressed.”

R. 127–28. She explained that alcohol treatment would incon-

venience her husband or daughter who would have to drive

her to the meetings, although she also testified that she has

taken an Uber to treatment.

The immigration judge also considered Zarzecki’s testi-

mony that if she were removed to Poland, she would have no

social network, nowhere to live, would have trouble finding

6 No. 21-3267

work there, and that her husband and daughter would not

accompany her, as they too would have trouble finding em-

ployment in Poland. He also considered the hardship it

would create for her daughter, Katarzyna, who had already

endured almost nine years of her childhood motherless.

Despite the sympathetic factors, the immigration judge

found that Zarzecki had not adequately addressed her mental

health issues nor demonstrated an attempt to atone for the

devastating loss of another life. In addition to noting the seri-

ous nature of the offense of driving while intoxicated, he also

noted her failure to take her medication, her use of alcohol in

lieu of the prescribed medication, her decision to drive while

intoxicated despite the offer from her husband to drive her

home, and her lack of effort to address her mental health is-

sues following her release from prison. He thus denied her

application for adjustment of status and ordered her removed

to Poland.

Upon the Board’s de novo review, it concluded that the

extremely egregious circumstances surrounding the drunk

driving accident were not outweighed by any countervailing

factors, including Zarzecki’s family ties, her long residence in

the United States, and familial and financial difficulties that

would result from her removal. The Board concluded that, de-

spite Zarzecki’s arguments to the contrary, the immigration

judge did indeed consider her mental health issues. The

Board concluded that Zarzecki’s brief did “not refer to any

particular testimony or documentary evidence relating to her

mental health that the Immigration Judge disregarded.” R. 4.

Nor did she explain how her “mental health constitutes an

equity that weighs in favor of an exercise of discretion.” R. 4.

The Board concluded that Zarzecki neglected to establish

No. 21-3267 7

“equities that outweigh the serious adverse factors present in

this case” and thus, did not satisfy her burden of proof of

demonstrating that she merited relief in the exercise of discre-

tion. R. 5. Zarzecki timely filed a petition for review in this

court, arguing that the Board did not appropriately apply de

novo review and failed to consider the expert medical evi-

dence.

II.

As a noncitizen who illegally remained in the United

States longer than permitted, Zarzecki was subject to removal

under 8 U.S.C. §1227(a)(1)(B) of the Immigration and Nation-

ality Act. Congress, however, has given the Attorney General

(who acts through a delegation of power to the immigration

judges and the Board) discretion to forgive the illegal activity

and adjust an eligible noncitizen’s status to protect the noncit-

izen from removal, as “a matter of grace.” Patel v. Garland, 596

U.S. 328, 332 (2022) (quoting INS v. St. Cyr, 533 U.S. 289, 308

(2001)); 8 U.S.C. §1255(a). That discretionary power, however,

has been specifically reserved for the Attorney General. Sec-

tion 1252(a)(2)(B)(i) of the Act specifically precludes judicial

review of “any judgment regarding the granting of relief un-

der section … 1255,” which includes discretionary determina-

tions related to adjustment of status. 8 U.S.C. §1252

(a)(2)(B)(i); Patel, 596 U.S. at 347. Notwithstanding this provi-

sion, this court does retain jurisdiction to review claims of le-

gal or constitutional error. See 8 U.S.C. §1252(a)(2)(D); Ndlovu

v. Garland, 99 F.4th 997, 998 (7th Cir. 2024). We have inter-

preted the phrase “questions of law” in this subparagraph

narrowly, holding that legal questions are limited to those in

which the “’Board misinterprets a statute, regulation, consti-

tutional provision, or its own precedent, applies the wrong

8 No. 21-3267

legal standard, or fails to exercise its discretion at all.’” Mar-

tinez-Baez v. Wilkinson, 986 F.3d 966, 970 (7th Cir. 2021) (quot-

ing Bachynskyy v. Holder, 668 F.3d 412, 417 (7th Cir. 2011)).

Zarzecki’s primary complaint is that the Board failed to

properly consider the expert medical evidence. She is correct

that the wholesale failure to consider evidence would consti-

tute an error of law—in the sense that it would demonstrate a

failure to exercise discretion at all. Id. at 978 (citing Iglesias v.

Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)). Thus, Zarzecki’s

claim that the immigration judge and Board completely ig-

nored expert evidence would be an allegation of legal error.

Id.; see also Arej v. Sessions, 852 F.3d 665, 667 (7th Cir. 2017)

(“[T]he Board cannot make a reasoned decision to deny a mo-

tion to reopen if it ignores the evidence that a petitioner pre-

sents.”); Ward v. Holder, 632 F.3d 395, 397 (7th Cir. 2011)

(whether the Board failed to exercise discretion at all is a legal

question).

On the other hand, “the [Board] does not commit an ‘error

of law’ every time an item of evidence is not explicitly consid-

ered or is described with imperfect accuracy.” Martinez-Baez,

986 F.3d at 976 (quoting Mendez v. Holder, 566 F.3d 316, 323 (2d

Cir. 2009)). In short, only a wholesale dereliction of duties to

consider the evidence amounts to a reviewable legal error.

The immigration judge and Board do not commit legal error

simply because they do not “’expressly parse or refute on the

record each individual argument or piece of evidence offered

by the petitioner.’” Ji Cheng Ni v. Holder, 715 F.3d 620, 625 (7th

Cir. 2013) (quoting Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

2008)).

Zarzecki does not argue that the immigration judge and

Board excluded her expert evidence wholesale. Instead, she

No. 21-3267 9

complains that the immigration judge and Board “fail[ed] to

accord the requisite weight to expert evidence concerning the

Petitioner’s medical treatment for her mental health condi-

tions.” Zarzecki Brief at 18 (emphasis ours). She also argues

that the immigration judge and Board did not “fully embrace”

the medical evidence, give the facts their “due significance,”

“provide a comprehensive review,” or provide a “meticulous

factual … analysis.” Id. at 19–21. These are complaints about

the depth and weight the agency gave to the evidence and

testimony. The balancing of evidence, however, is at the very

core of the discretionary authority of the agency, over which

we lack jurisdiction. Kiorkis v. Holder, 634 F.3d 924, 928 (7th

Cir. 2011), as amended (Mar. 10, 2011) (noting that an appellate

court is prohibited from reviewing the discretionary methods

the agency uses to weigh various factors). And as we noted,

although the Board may not disregard relevant evidence, it

also need not itemize and explain thoroughly each piece of

evidence offered. Salazar-Marroquin v. Barr, 969 F.3d 814, 818

(7th Cir. 2020); see also Bernardo-De La Cruz v. Garland, 114

F.4th 883, 893 (7th Cir. 2024) (it is not legal error simply be-

cause the immigration judge’s consideration “of the evidence

could have been more thorough”); Martinez-Baez, 986 F.3d at

976 (“the [Board] does not commit an ‘error of law’ every time

an item of evidence is not explicitly considered or is described

with imperfect accuracy.”); Meza v. Garland, 5 F.4th 732, 737

(7th Cir. 2021) (The brevity of the judge’s analysis alone does

not amount to a legal error.).

But there is a more fundamental problem with Zarzecki’s

argument about the expert testimony. It is not clear to what

expert testimony she is referring. Despite Zarzecki’s brief stat-

ing that she submitted “extensive medical documentation,”

no expert proffered a report or affidavit or testified on her

10 No. 21-3267

behalf. Zarzecki Brief at 19. She offered but one medical rec-

ord with a diagnosis—one page from an Illinois Department

of Corrections Mental Health Diagnostic and Treatment Note

which lists a diagnosis of “depression disorder,” but also

noted her desire to cease medication for depression—the very

behavior for which the immigration judge faulted her. R. 399.

She did not present any other medical records regarding her

diagnosis, specific treatment plans, or prognosis. Her brief in-

cludes only the most minimal references to anything that

could be considered expert evidence. Dr. Gandhiraj wrote a

letter stating that she had been seen between August 2016

(three years after her release from prison) and September 2018

for treatment of depression and anxiety and had been “very

compliant with her treatment and follows all the recommen-

dations.” R. 203. Zarzecki, however, provided no evidence re-

garding his qualifications or expertise, what treatment she

had been receiving, how often she received it, what it meant

that she was “compliant,” or any other evidence that she was

on track to remedy the problems that had contributed to the

fatal accident. The only other reference to any treatment came

in the form of two attempts by Zarzecki’s husband to make

appointments for his wife, with no accompanying evidence

that she attended those appointments. One email dated

March 12, 2013, addressed to her husband indicated that Zar-

zecki had an appointment scheduled with a Dr. Poprawski at

the First Chicago Neuroscience Clinic on March 27, 2013.

R. 376. Zarzecki submitted no documents indicating that Dr.

Poprawski ever treated or saw Zarzecki. Likewise, Zarzecki

produced no documentary evidence indicating that she re-

ceived any treatment from the Alcohol Drug Safety Interven-

tion Inc. and Polish American Family Services despite the

March 13, 2013 letter from her husband to the organization

No. 21-3267 11

attempting to arrange treatment. R. 374. And it seems unlikely

that she did, given her testimony that she did not attend any

therapy for at least a year and a half after her release from

prison and did not like to attend group therapy. And alt-

hough Zarzecki’s brief states that she was diagnosed with ag-

oraphobia, she did not submit a single piece of medical evi-

dence reflecting this diagnosis. In short, Zarzecki has ap-

pealed because “the Board of Immigration Appeals erred

when it failed to properly consider the expert medical evi-

dence,” (Zarzecki Brief at 5) but she does not tell us what ex-

pert medical evidence in the record the Board failed to con-

sider.

In an effort to be exceptionally generous to Zarzecki, we

could interpret her claim that the Board failed to consider ex-

pert medical evidence as a claim that the Board failed to con-

sider any of her own self-reports about her mental health and

treatment. 1 But, in fact, both the immigration judge and the

Board did consider this evidence. The immigration judge con-

sidered her unverified evidence that she was hospitalized for

1 An immigrant’s own testimony indeed can be sufficient to sustain

an applicant’s burden without corroboration. See 8 U.S.C. §1158 (b)(B)(ii).

“Where the trier of fact determines that the applicant should provide evi-

dence that corroborates otherwise credible testimony, such evidence must

be provided unless the applicant does not have the evidence and cannot

reasonably obtain the evidence.” Id. In this case, it would have been rea-

sonable for the immigration judge to expect that Zarzecki would have rec-

ords of her health diagnoses and treatment because both those things

would have been recent and they occurred within the United States where

health records would have been readily obtainable. In any event, the im-

migration judge and Board considered Zarzecki’s own testimony about

her mental health, but ultimately concluded nevertheless that she did not

adequately explain how her “mental health constitut[ed] an equity that

weigh[ed] in favor of an exercise of discretion.” R. 4.

12 No. 21-3267

three weeks for depression, that she had been diagnosed with

depression at age 17 while in Poland, and that she had been

prescribed Prozac. He also accepted her unverified and un-

supported allegation that she attended group counseling and

individual therapy. The Board, in turn, considered her claim

that the immigration judge failed to adequately consider her

mental health issues. The Board noted that it was stymied in

any attempt to consider those claims further, as Zarzecki did

not point to any particular testimony or documentary evi-

dence relating to her mental health that the immigration

judge disregarded or explain how the respondent’s mental

health “constitute[d] an equity that weigh[ed] in favor of an

exercise of discretion.” R. 4.

Zarzecki also claims that the Board failed to review the im-

migration judge’s decision de novo. Indeed, applying the in-

correct standard of review would constitute legal error.

F.J.A.P. v. Garland, 94 F.4th 620, 638 (7th Cir. 2024). It is hard

to know, however, with what Zarzecki finds fault. She com-

plains that the Board did not apply de novo review, but in the

next sentence argues that the Board “substitute[d] its discre-

tion in areas requiring legal and factual precision.” Zarzecki

Brief at 17. Of course, de novo review means that the Board

would consider Zarzecki’s case anew—which, in a case about

discretion, would mean applying its discretion inde-

pendently. See 8 C.F.R. §1003.1(d)(3)(ii). Zarzecki does not of-

fer any citations to this court for the appropriate standard of

review when the Board reviews decisions of the immigration

judge (and her short appendix is missing the last page of the

Board’s opinion, making our review more cumbersome still).

Despite Zarzecki’s claims that the Board should consider

“both facts and legal interpretations” de novo (Zarzecki Brief

at 17), the Board reviews factual findings only for clear error

No. 21-3267 13

and not de novo. F.J.A.P., 94 F.4th at 638; 8 C.F.R.

§1003.1(d)(3)(i). This is a highly deferential standard and

means that the Board’s role was to review the immigration

judge’s findings about Zarzecki’s medical evidence for clear

error only. The Board reviews all other issues, including

“questions of law, discretion, and judgment” de novo. 8

C.F.R. §1003.1(d)(3)(ii). Consequently, “[w]hether an alien is

entitled to an adjustment of status is a question of discretion

over which the BIA exercises de novo review.” Wood v.

Mukasey, 516 F.3d 564, 569 (7th Cir. 2008) (citing 8 U.S.C.

§1255(a)). It may not, however, engage in fact-finding to do

so.

Contrary to Zarzecki’s allegations, the Board not only

stated the proper standard of review, but also applied it ap-

propriately. The Board addressed the key factual findings

made by the immigration judge, and then used those findings

to conduct its own consideration of whether Zarzecki was en-

titled to discretionary relief. The Board noted the serious na-

ture of Zarzecki’s conviction for aggravated driving under the

influence of alcohol and noted that the circumstances leading

to the accident were particularly egregious. The Board then

weighed the egregiousness of the harm against the counter-

vailing equities in favor of adjustment—such as Zarzecki’s

“family ties, particularly her United States citizen husband

and adult daughter as well as her long residence in the United

States since 1989… [and] separation from her family and fi-

nancial difficulties that accompany removal to a country she

had not resided in for over 30 years.” R. 4. After considering

all of the factors, the Board then concluded that Zarzecki

“ha[d] not demonstrated unusual or outstanding equities that

outweigh the adverse factors present here.” Id.

14 No. 21-3267

The Board “is not required to ‘write an exegesis on every

contention’ in a particular case, it must nonetheless ‘consider

the issues raised and announce its decision in terms sufficient

to enable a reviewing court to perceive that it has heard and

thought and not merely reacted.’” Guerra Rocha v. Barr, 951

F.3d 848, 853 (7th Cir. 2020) (quoting Mansour v. I.N.S., 230 F.3d

902, 908 (7th Cir. 2000)). The Board sufficiently met its obliga-

tions here and applied the proper standard of review.

In sum, both the immigration judge and Board considered

and weighed the factors Zarzecki presented in mitigation,

with the Board applying the proper standard of review. The

agency did not commit any legal or constitutional error. We

therefore lack jurisdiction to review such discretionary judg-

ments pursuant to 8 U.S.C. §1252(a)(2).

Accordingly, the petition for review is DISMISSED for

lack of jurisdiction.