Krzysiak v. Lynch ( 2016 )

15-1784-ag
Krzysiak v. Lynch
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of July, two thousand sixteen.
PRESENT: JOSÉ A. CABRANES,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
ADAM ANDRZEJ KRZYSIAK, AKA ADAM KRZYSAK, AKA ADAM A. KRZYSIAK,
Petitioner, 15-1784-ag
v.
LORETTA E. LYNCH, UNITED STATES ATTORNEY
GENERAL,
Respondent.
FOR PETITIONER: THOMAS E. MOSELEY, Law Offices of
Thomas E. Moseley, Newark, NJ.
FOR RESPONDENT: SARAH K. PERGOLIZZI, Dana M.
Camilleri, Trial Attorneys, Office of
Immigration Litigation; Benjamin C.
Mizer, Principal Deputy Assistant
Attorney General, Civil Division; Ernesto
H. Molina, Jr., Acting Assistant Director,
Office of Immigration Litigation, United
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States Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the petition for review be and hereby is DISMISSED.
Petitioner Adam Andrzej Krzysiak (“Krzysiak”), a native and citizen of Poland, seeks review
of a May 4, 2015 decision of the BIA affirming the September 17, 2013 decision of an Immigration
Judge (“IJ”) denying adjustment of status as a matter of discretion and ordering Krzysiak removed.
In re Adam Andrzej Krzysiak, No. A088 438 123 (B.I.A. May 4, 2015), aff’g No. A088 438 123 (Immig.
Ct. N.Y. City Sept. 17, 2013). We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
We lack jurisdiction to review the agency’s discretionary denial of adjustment of status. See
8 U.S.C. § 1252(a)(2)(B); Guyadin v. Gonzales, 449 F.3d 465, 468–69 (2d Cir. 2006). Nonetheless, we
may review a petition that raises “constitutional claims or questions of law,” 8 U.S.C.
§ 1252(a)(2)(D). Even with respect to questions of law, however, “we lack jurisdiction to review any
legal argument that is so insubstantial and frivolous as to be inadequate to invoke federal-question
jurisdiction.” Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008); see Gallego v. Northland Grp.
Inc., 814 F.3d 123, 128 (2d Cir. 2016) (noting that federal-question jurisdiction is lacking over federal
claims that are “so insubstantial, implausible, foreclosed by prior decisions of [the Second Circuit or
Supreme Court], or otherwise completely devoid of merit as not to involve a federal controversy”
(internal quotation marks omitted)).
Although some of Krzysiak’s arguments raise questions of law, those questions are too
frivolous to invoke our jurisdiction. Krzysiak first argues that, as a matter of law, the agency was
prohibited from considering his criminal history in deciding whether to adjust his status as a matter
of discretion. A “contention that the IJ weighed factors that the IJ was prohibited from considering”
ordinarily presents a reviewable legal question that “is quite distinct from the unreviewable argument
that the IJ balanced improperly those factors that the IJ could consider.” Argueta v. Holder, 617 F.3d
109, 113 (2d Cir. 2010) (emphasis in original). It is well settled, however, that the agency may
consider past criminal conduct, even if that conduct did not render the alien inadmissible or result in
a conviction. See, e.g., Wallace v. Gonzales, 463 F.3d 135, 139 (2d Cir. 2006). Accordingly, Krzysiak’s
argument is so clearly foreclosed by Second Circuit precedent that we lack jurisdiction to review it.
Next, Krzysiak argues that the agency erred in relying on his unauthorized employment,
because the adjustment statute, 8 U.S.C. § 1255(c)(2), does not preclude adjustment on that basis for
aliens who, like Krzysiak, are married to U.S. citizens. This argument requires an almost willful
misinterpretation of the relevant statute. Section 1255(c)(2) governs statutory eligibility for
adjustment, not the factors the agency may consider as part of its discretionary determination. The
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agency did not consider Krzysiak’s unauthorized employment in determining that he was eligible for
adjustment, and Krzysiak cites no authority to suggest that the agency may not consider
unauthorized employment as a discretionary factor. See In re Khan, 17 I. & N. Dec. 508, 510 (B.I.A.
1980) (concluding that unauthorized employment is a negative factor to be weighed in exercising
discretion, although it is by itself an insufficient reason to deny relief ).
Third, Krzysiak argues that the IJ erred in relying on a police report in making its
discretionary determination. We have clearly stated, however, that “police reports and complaints,
even if containing hearsay and not a part of the formal record of conviction, are appropriately
admitted for the purposes of considering an application for discretionary relief.” Carcamo v. U.S.
Dep’t of Justice, 498 F.3d 94, 98 (2d Cir. 2007); accord Padmore v. Holder, 609 F.3d 62, 69 (2d Cir. 2010).
Finally, Krzysiak argues that the BIA should have remanded for the IJ to reconsider whether
he had been rehabilitated. Specifically, Krzysiak contends that the IJ’s determination that he had not
been rehabilitated rested primarily on her erroneous finding that he had been arrested for a traffic
violation as recently as 2012. We lack jurisdiction to consider this argument because it is, at bottom,
a challenge to the IJ’s discretionary determination that he did not show sufficient evidence
of rehabilitation for that factor to weigh in his favor. See Argueta, 617 F.3d at 113; Noble v. Keisler, 505
F.3d 73, 78–79 (2d Cir. 2007); Wallace, 463 F.3d at 140–41.
CONCLUSION
We have reviewed all of the remaining arguments raised by Krzysiak on appeal and find
them to be without merit. For the foregoing reasons, the petition for review is DISMISSED, and
the pending motion for a stay of removal is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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