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Alicja Kania Wroblewska v. Eric H. Holder

August 24, 2011

ALICJA KANIA WROBLEWSKA, PETITIONER,
v.
ERIC H. HOLDER, 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

The opinion of the court was delivered by: Å'Å' Wood, Circuit Judge.

SUBMITTED FEBRUARY 7, 2011 Å'

Before ROVNER and WOOD, Circuit Judges, and GOTTSCHALL, District Judge.

Alicja Kania Wroblewska, the petitioner, is a citizen of Poland who came to the 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. FED. R. APP. P. 34(a)(2). Å'Å' The Honorable Joan B. Gottschall, of the Northern District of Illinois, sitting by designation.

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 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 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).

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 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, 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 ...


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