Wroblewska v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1618

A LICJA K ANIA W ROBLEWSKA,

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review from an Order of the

Board of Immigration Appeals.

No. A 077 646 892

S UBMITTED F EBRUARY 7, 2011 Œ —D ECIDED A UGUST 24, 2011

Before

R OVNER and W OOD , Circuit Judges, and

G OTTSCHALL, District Judge. ŒŒ

W OOD , Circuit Judge. Alicja Kania Wroblewska, the

petitioner, is a citizen of Poland who came to the

Œ

After an examination of the briefs and the record, we have

concluded that oral argument is unnecessary. Thus the appeal is

submitted on the briefs and the record. F ED . R. A PP . P. 34(a)(2).

ŒŒ

The Honorable Joan B. Gottschall, of the Northern District

of Illinois, sitting by designation.

2 No. 10-1618

United States on a visitor’s visa in 1994. She overstayed

her visa and was caught allegedly trying to bribe an

immigration officer in November 1999 in Operation

Durango, a sting operation with which we have become

quite familiar. See Pawlowska v. Holder, 623 F.3d 1138

(7th Cir. 2010); Mozdzen v. Holder, 622 F.3d 680 (7th Cir.

2010); Krasilych v. Holder, 583 F.3d 962 (7th Cir. 2009);

Skorusa v. Gonzales, 482 F.3d 939 (7th Cir. 2007); Pieniazek

v. Gonzales, 449 F.3d 792 (7th Cir. 2006).

Before her removal proceedings began, Wroblewska

married Boguslaw Kania, a U.S. citizen. Kania filed a

petition for an alien relative visa; in it, he named

Wroblewska as the beneficiary. In October 2006, shortly

after the petition was approved, Wroblewska filed an

application to adjust her status under section 245 of the

Immigration and Nationality Act, 8 U.S.C. § 1255. She

then appeared in the Immigration Court for the first

time and admitted that she was removable as a non-

immigrant visitor present in the country beyond the

time allowed by her visa. See 8 U.S.C. § 1227(a)(1)(B). At

the same time, she moved to suppress all of the adverse

evidence that had been collected in 1999 through Opera-

tion Durango, and she asked the Immigration Judge (IJ)

to terminate the removal proceedings because of her

application for an adjustment of status. The IJ found

Wroblewska removable, denied her motion to suppress,

and decided that she was not entitled to adjust her sta-

tus. In the IJ’s opinion, adjustment was not warranted

because the evidence from Operation Durango showed

that Wroblewska had bribed an immigration official,

and that behavior outweighed all of the equities in favor

No. 10-1618 3

of relief. The Board of Immigration Appeals dismissed

Wroblewska’s appeal, and this petition followed.

Wroblewska faces an uphill battle because of limita-

tions to the court’s jurisdiction in this area. Although

we might have been inclined to weigh the equities more

charitably than the IJ did, Congress has not granted us

that authority. Any challenge to the IJ’s denial of

Wroblewska’s application for an adjustment of status

had to be based on legal or constitutional arguments. In

that regard, Wroblewska’s lawyer—Reza Baniassadi—

seriously hampered her chances. In Wroblewska’s peti-

tion, Attorney Baniassadi presented a single, underdevel-

oped legal argument: that evidence gathered during

Operation Durango should have been suppressed

because the operation itself was an egregious violation

of Wroblewska’s right to due process. Worse yet, this

argument was foreclosed by Krasilych v. Holder, supra,

a decision that was issued more than a year before

Wroblewska’s opening brief was filed in this case. Ac-

cordingly, we deny Wroblewska’s petition for review.

We will have more to say about Attorney Baniassadi’s

performance shortly.

I

Given the extensive treatment of Operation Durango

in our previous decisions, we can be brief with the de-

tails. It was a sting designed by three federal agencies

to catch “brokers” who were helping to procure immigra-

tion benefits for aliens illegally. The brokers would take

aliens who hoped to become permanent residents of the

4 No. 10-1618

United States to a storefront on the north side of Chi-

cago. There they would meet with undercover immigra-

tion agents who held themselves out as corrupt officials

ready to help with the adjustment of status. The brokers

sometimes told the aliens that the process was real and

legal. See, e.g., Skorusa, 482 F.3d at 940. Still, the agencies

that ran the operation maintain that they took steps to

make sure that neither aliens nor brokers caught in

their net would later assert that they had been confused

about the legality of the transactions taking place. The

government points out that there were no signs on

display in the store that would have given the impres-

sion that it was a government office, nor did the under-

cover immigration officials who worked the sting wear

INS uniforms.

Apart from decor and dress code, however, the proce-

dure used in Operation Durango looked a lot like the

normal adjustment-of-status process. In most cases,

including the one now before us, Clarence Robinson

was the immigration officer working undercover. Robin-

son would meet the alien; he would help her to fill out

an I-485 application for adjustment of status; and he

would interview her as he would any other person who

might have applied for a change in status through

regular channels. At the conclusion of the meeting, Robin-

son would place a genuine I-551 stamp in the alien’s

passport. This stamp usually signifies that a person’s

application for adjustment of status has been approved

and that she is awaiting a green card. But see Mozdzen,

622 F.3d at 684 (holding that stamps obtained through

Operation Durango do not change an alien’s legal status).

No. 10-1618 5

To increase the appearance of authenticity, meetings

with Robinson were preceded by fingerprinting and

medical checkups—two steps required of all people

who apply for adjustment of status.

When the meetings ended, the alien would pay

Robinson a $5,000 fee, usually through the broker facil-

itating the transaction. Robinson would explain to the

alien that she should tell any official who inquired that

she had been granted adjustment of status because of a

petition filed by a U.S. citizen sibling. In Wroblewska’s

case, Robinson instructed her to tell anyone who

inquired that she had met with him at the INS offices

in downtown Chicago. During Operation Durango,

Robinson met with almost 300 aliens and their brokers.

The local U.S. Attorney’s Office prosecuted the

brokers, and the aliens—most of them from Eastern

Europe—were referred for removal proceedings.

Throughout her removal proceedings, Wroblewska

has maintained that she thought she was adjusting her

status legally in 1999, and she has always denied paying

a $5,000 bribe to Robinson. Her story is believable in

some respects. In the past, we have called Operation

Durango “a shady sting operation that in some

countries . . . might represent the way that business is

actually done,” Pawlowska, 623 F.3d at 1142, and we have

also noted that, throughout the operation, “Robinson

tried to make the process seem[] as official as possi-

ble,” Skorusa, 482 F.3d at 941. Moreover, the evidence

presented during the removal proceedings relating to

the bribe that Wroblewska allegedly paid to Robinson

6 No. 10-1618

was remarkably thin. Wroblewska testified that she

did not pay a bribe; and Robinson testified that

Wroblewska’s broker paid him $5,000 after their meeting

had ended. Robinson admitted, however, that he had

no direct evidence that Wroblewska furnished that

money—he did not see Wroblewska give the broker

$5,000 and the broker made the payment after

Wroblewska left. According to the government, a video

recording of the entire transaction was made, but we

have no idea if that is so, because the government

did not introduce it as evidence and the IJ never asked

to see it.

The IJ noted that Wroblewska satisfied two of the

three statutory factors required for adjustment of status:

she had been lawfully admitted into the United States

when she arrived, and a visa was immediately available

given her husband’s successful petition; the only open

question was whether Wroblewska’s moral character

warranted a favorable exercise of discretion. The IJ identi-

fied “strong equities” that weighed in favor of approving

Wroblewska’s application for an adjustment of status.

Wroblewska had been married happily to a U.S. citizen

for a number of years; she and her husband had

mingled their assets and had lived together without

interruption; she had no criminal record; and she was

gainfully employed. Nonetheless, the IJ ultimately con-

cluded that the balance of equities weighed against her,

solely because he found that her assertion that she

never bribed Robinson was not credible. “I do not find

the respondent’s testimony that she did not know that

she was bribing an officer to be credible,” the IJ said,

No. 10-1618 7

before continuing cryptically, “The circumstances speak

to her intent, which [sic] she actually did on Novem-

ber 1999, speaks to what she intended to do. And that

those circumstances point clearly to an effort of bribery

rather than to an innocent who is simply mislead [sic] by

a broker.” By that the IJ presumably meant that

Wroblewska must have known that $5,000 was too high

a price to pay to adjust her status legally, she should

have been suspicious of Robinson’s instruction to lie

about the location of the interview, and she must have

known that she was not eligible to adjust her status in

1999. The Board agreed with the IJ’s assessment.

The agency’s evaluation of the equities is not partic-

ularly persuasive. Were we in the IJ’s shoes, faced with

the government’s assertion that an alien had bribed a

federal immigration official, we would demand more

than weak circumstantial evidence to support that al-

legation. It is especially troubling that the government

purported to have a video recording of the entire trans-

action, but then it never produced any such thing. With

a swearing match on the stand and an objective record

of the transaction available, it is baffling why the agency

would not have been interested in seeing what actually

had occurred at the meeting between Wroblewska and

Robinson. In light of the government’s weak evidence

of bribery and Wroblewska’s happy marriage and

fruitful participation in the community, we might have

weighed the equities differently than the agency. But

that is not our role. We lack jurisdiction to review a

variety of agency decisions denying discretionary relief,

including an IJ’s decision to deny an application for

8 No. 10-1618

adjustment of status. See 8 U.S.C. § 1252(a)(2)(B)(i) (barring

review of decisions made pursuant to 8 U.S.C. § 1255,

among other provisions); Pawlowska, 623 F.3d at 1141 &

n.4 (explaining that the Court’s decision in Kucana v.

Holder, 130 S. Ct. 827 (2010), does not affect this juris-

dictional bar). The IJ’s view of Wroblewska’s credibility

and his balancing of the equities must therefore stand

undisturbed.

II

Our jurisdiction is not so limited, however, when it

comes to “constitutional claims or questions of law”

that are related to the denial of an application for ad-

justment of status. 8 U.S.C. § 1252(a)(2)(D); Jarad v. Gonza-

les, 461 F.3d 867, 868-69 (7th Cir. 2006). Wroblewska’s

petition presents a single legal argument. She says that

all evidence gathered in Operation Durango should

have been excluded from her removal proceedings

because the operation violated her right to due process.

Without this evidence, she implies, the IJ would have

had no reason to deny her application for an adjustment

of status.

If there is a good due process challenge to Operation

Durango out there, we would not know from the argu-

ments made here. Indeed, the entire argument section

of Wroblewska’s opening brief in this court included only

about 500 words. The substance of her claim—apart from

a conclusory suggestion that the Supreme Court’s decision

in INS v. Lopez-Mendoza, 468 U.S. 1032, 1040-50 (1984)

is distinguishable—is presented in a single paragraph:

No. 10-1618 9

The IJ and the BIA erroneously held that the Petitioner

did not demonstrate that the evidence was obtained

as a result of an egregious violation of due process

rights. In the present case, the Service’s actions

were not limited to a simple arrest. The Service’s

actions, however, amounted to malicious entrapment

of law abiding citizens. To be precise, the Service’s

Operation Durango targeted Polish and Eastern

European community [sic] in Chicago, during which

the Service sought out law abiding citizens and

through its undercover agents, encouraged and

trapped people to submit baseless applications for

adjustment of status.

Petitioner’s Br. at 13-14. Attorney Baniassadi did not

attempt to elaborate on this statement or to respond to

any of the government’s counterarguments, because

he chose not to file a reply brief.

In addition to the fact that counsel’s argument on

behalf of Wroblewska is so cursory, it is also unsatis-

factory because, without explanation, it relies on an

argument that had been squarely foreclosed in another

decision about Operation Durango that we issued one

year before Wroblewska’s opening brief was filed. We

said in Krasilych that a petitioner who “blithely asserts

that ‘Fourth Amendment violations’ in Operation

Durango were ‘widespread and egregious’ ” does not

demonstrate a violation of the Fourth Amendment or of

any other liberty. 583 F.3d at 967. Attorney Baniassadi

attempts to explain away Krasilych in a footnote,

remarking that he filed Wroblewska’s notice of appeal

10 No. 10-1618

in the agency before we issued our decision in Krasilych.

This is a non sequitur, not a ground on which our prior

decision can be distinguished. Attorney Baniassadi

knew of Krasilych when he filed his brief and he should

have confronted it. Instead, he repeated the precise

mistake that we criticized in Krasilych: he blithely asserts

that Operation Durango was “an egregious violation of

due process rights,” but he does not explain why. It

would be different if he had acknowledged our earlier

decision and indicated that he was preserving a point

for further review, but there is no such indication in

the brief. The Supreme Court has required a showing

of “egregious violations of Fourth Amendment or other

liberties that might transgress notions of fundamental

fairness” before the exclusionary rule will apply in immi-

gration proceedings. Lopez-Mendoza, 468 U.S. at 1050-51.

It makes no difference that Wroblewska’s argument is

styled as a due-process argument rather than one based

on the Fourth Amendment. Finally, to the extent that

the brief suggests that Wroblewska was entrapped,

counsel misunderstands entrapment. “Entrapment refers

to the use of inducements that cause a normally law-

abiding person to commit a crime.” United States v.

Morris, 549 F.3d 548, 551 (7th Cir. 2008). At the time

that Wroblewska was caught in the sting she was com-

mitting a continuing violation of the immigration laws

and had no basis for applying for an adjustment of

status. Operation Durango simply brought her to the

attention of immigration officials.

For these reasons we must deny Wroblewska’s peti-

tion for review. We are disturbed, however, by Attor-

No. 10-1618 11

ney Baniassadi’s perfunctory performance. People in

Wroblewska’s position face life-changing consequences

from their immigration proceedings. Cf. Padilla v.

Kentucky, 130 S. Ct. 1473 (2010). Because Attorney

Baniassadi’s effort fell far below the minimum standards

for competent representation in this court, we are re-

questing the Clerk of the Court to forward a copy of

this opinion to the Illinois Attorney Registration & Disci-

plinary Commission.

* * *

The petition for review is D ENIED.

8-24-11