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Mozdzen v. Holder

September 7, 2010

JAROSLAW MOZDZEN, EWA MOZDZEN, AND SYLWIA MOZDZEN, PETITIONERS,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of Orders of the Board of Immigration Appeals. Nos. A076-291-213, A076-291-214, A076-291-215

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED APRIL 22, 2010

Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.

In 1995, Jaroslaw Mozdzen, his wife, and their daughter came to the United States from Poland and unlawfully remained in the country. In an attempt to become permanent residents, they paid $12,000 in cash to a man in the back of a storefront who provided them with "I-551 passport stamps," which portrayed them as temporary lawful permanent residents. But in 2005, the Department of Homeland Security did not honor the stamps and initiated removal proceedings against the Mozdzens. An immigration judge ("IJ") found the Mozdzens, natives and citizens of Poland, removable, and the Board of Immigration Appeals ("BIA") agreed. The Mozdzens petition this court for relief but because the Mozdzens have failed to establish lawful presence, we find substantial evidence supports the immigration judge's finding that they are removable. Therefore, we deny the petition for review.

I. BACKGROUND

On April 1, 1995, Jaroslaw Mozdzen entered the United States as a non-immigrant visitor for pleasure, leaving his wife and infant daughter behind in Poland. As a tourist, Jaroslaw had permission to stay in the United States for a period not to exceed six months. In August 1995, his wife Ewa came to America to join him. She entered the United States through the Canadian border, where she had entered on a visitor's visa. Both Jaroslaw and Ewa continued to unlawfully remain in the United States.

In April 1999, the Mozdzens enlisted the help of Jack Polszakiewicz to receive legal status. According to the Mozdzens, they believed Polszakiewicz was a Polish-speaking travel agent who legally helped people through the immigration process. Polszakiewicz brought the Mozdzens to a travel agency where the Mozdzens gave $12,000 to a man who claimed to be an immigration official. This man was not wearing a uniform and he was operating out of the back of this travel agency store-front. In exchange, the Mozdzens received a stamp known as an I-551 stamp, and believed they would be favorably adjudicated for legal permanent resident ("LPR") status.

Ordinarily, the I-551 stamp acts as temporary proof of LPR status. In truth, however, Polszakiewicz was a person the government referred to as a "broker," or an individual who found people attempting to obtain im-migration documents and brought them to corrupt im-migration officials. In exchange for money, the corrupt immigration official would confer LPR status onto people and tell them to explain that they received LPR status through the sponsorship of a citizen sibling. The government set up an undercover operation, Operation Durango, to target these brokers. The broker would bring clients to immigration officials they believed were corrupt, but who were actually working undercover. The undercover immigration official would provide the client with a temporary I-551 stamp in the passport, but the LPR application would not be adjudicated. On April 22, 1999, the Mozdzens received temporary I-551 stamps in their two passports as well as in the passport of Sylwia who lived in Poland.

In August 1999, Ewa traveled to Poland to pick up Sylwia. Jaroslaw also visited Poland around the same time. The Mozdzens returned to the United States on September 12, 1999, and were admitted at Chicago O'Hare International Airport using the temporary I-551 stamp. The Mozdzens had no valid tourist visa at this time. Aside from this visit, the Mozdzens resided continuously in the United States since their arrival in 1995. A second daughter was born in the United States in 1998 and is a United States citizen.

On June 15, 2005, the Department of Homeland Security ("DHS") personally served Jaroslaw and Ewa Mozdzen with a notice to appear. Sylwia received a notice to appear in the mail on December 2, 2005. These notices charged Jaroslaw and Ewa with removability for being present in the United States in violation of 8 U.S.C. § 1227(a)(1)(B), and Sylwia with removability for entering the United States without valid entry documents, 8 U.S.C. § 1227(a)(1)(A). While each case was initially pending in front of different judges, the cases were consolidated per the request of each petitioner. On November 15, 2007, DHS added charges that Jaroslaw and Ewa were removable by engaging in fraud when they reentered the United States using their I-551 stamps.

The Mozdzens, through counsel, both conceded they were natives and citizens of Poland who stayed longer than permitted. On April 25, 2008, a final merits hearing was held. The IJ denied a request for a continuance, and found that based on the concessions alone, the Mozdzens were removable under 8 U.S.C. § 1227(a)(1)(A) because they were inadmissible at the time they entered the county in 1999. In doing so, the IJ did not make any findings as to whether the Mozdzens affirmatively engaged in fraud when obtaining the I-551 stamps. Finally, the IJ found that Ewa did not qualify for cancellation of removal.

II. ANALYSIS

A. Petitioners Failed to Establish Lawful Presence

The Mozdzens argue that the government was required to rescind their LPR status before it could initiate any removal proceedings against them and that any recission is now barred by a five-year limitations period. A removal proceeding is a civil action to determine eligibility to remain in the United States. See I.N.S. v. LopezMendoza, 468 U.S. 1032, 1038-39 (1984). In a removal proceeding, DHS must only establish a petitioner's identity and alienage to shift the burden to the petitioner to prove he is "lawfully present in the United States pursuant to a prior admission" and not removable. 8 U.S.C. § 1229a(c)(2)(B); Lopez-Mendoza, 468 U.S. at 1039. We review the IJ's removability decision as supplemented by any additional reasoning by the Board of Immigration Appeals. Milanouic v. Holder, 591 F.3d 566, 570 (7th ...


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