Blaszczyk v. Lynch

621 F. App'x 693

• Court: Court of Appeals for the Second Circuit
• Decided: August 26, 2015
• Docket: 14-154
• Status: Unpublished

Opinion

SUMMARY ORDER

Krzysztof Wojciech Blaszczyk (“Krzysz-tof’) and Agnieszka Anna Blaszczyk (“Ag-nieszka”) (collectively, “the Blaszczyks”), natives and -citizens of Poland, seek review of the December 23, 2013, decision of the BIA denying their motion for reconsideration. In re Blaszczyk, Nos. A099 882 834, A088 229 878 (B.I.A. Dec. 23, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Our review is limited to the BIA’s denial of reconsideration because the Blaszczyks did not petition for review of -the BIA’s underlying dismissal of their appeal from the IJ’s denial of Krzysztofs application to adjust status. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). We review the BIA’s denial of a reconsideration motion for abuse of discretion. Id. Because a motion to reconsider must specify errors of fact or law in the BIA’s decision, 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1), the BIA does not abuse its discretion in denying such a motion when it merely repeats arguments that the BIA has previously rejected, see Jin Ming Liu, 439 F.3d at 111.

Here, the BIA did not abuse its discretion in denying the Blaszczyks’ motion to reconsider its prior decision. In its first decision, the BIA declined to revisit Matter of Legaspi 25 I. & N. Dee. 328 (BIA 2010), under which Krzysztof was ineligible to adjust status to lawful- permanent resident pursuant to 8 U.S.C. § 1255(i). And in declining to reconsider, the BIA rejected the Blaszczyks’ argument that Matter of Estrada, 26 I. & N. Dec. 180 (BIA 2013) was a continuation of the flawed reasoning in Matter of Legaspi, and concluded that Matter of Estrada would not change the result in their case.

Section 1255(i) makes adjustment of status available to certain applicants who are ineligible to adjust status pursuant to § 1255(a), such as those, like Krzysztof, who fail to maintain continuous lawful status since entering the United States. See 8 U.S.C. § 1255(c)(2). In order to adjust status under § 1255(i), the applicant must be a “grandfathered alien,” which the statute and agency regulations define as the beneficiary of a visa petition or application for labor certification filed on or before April 30, 2001 (the principal grandfathered alien), or the child or spouse of the principal beneficiary (the derivative grandfathered alien). 8 U.S.C. § 1255(i)(1)(B); 8 C.F.R. § 1245.10(a)(1)(i). In Matter of Le-gaspi, the BIA held that an alien, such as Krzysztof, cannot obtain grandfathered status from a spousal relationship with a derivative grandfathered alien (here, Ag-nieszka, who derived that status from her father) because the statute “makes clear that it applies only to the beneficiary of the visa petition and to that principal alien’s spouse or child,” 25 I. & N. Dec. at 329-30 (emphasis in original). In Matter of Estrada, the BIA held that the spouse or child of a principal grandfathered alien cannot qualify as a derivative grandfathered alien when the spouse or child relationship was established after April 30, 2001. 26 I. & N. Dec. at 184-85.

Insofar as the Blaszczyks argued that Matter of Estrada was a continuation of the legal error made in-deciding Matter of Legaspi, they merely repeated previously rejected arguments and the BIA did not abuse its discretion in denying their motion to that extent. See Jin Ming Liu, 439 F.3d at 111. Furthermore, the BIA reasonably concluded that Matter of Estrada would not change the result in the Blaszc-zyks’ case because Estrada applies only to spouses and children of principal grandfathered aliens, and not to spouses of derivative grandfathered aliens, such as Krzysz-tof. 26 I. & N. Dec. at 184-85.

Finally, contrary to the Blaszczyks’ arguments here, both '8 U.S.C. § 1255(i) and the Supplementary Information to the interim rule amending the relevant regulations explicitly include only “a spouse or child of the principal alien” as a grandfathered alien. 8 U.S.C. § 1255(i) (emphasis added); see Adjustment of Status to That Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 66 Fed.Reg. 16383, 16384 (Mar. 26, 2001).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).