Eugeniusz Wojciechowicz v. Merrick B. Garland

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 8, 2023
• Docket: 22-2280
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ Nos. 22-1086 & 22-2280 EUGENIUSZ WOJCIECHOWICZ, Petitioner, v.

MERRICK B. GARLAND, Attorney General of the United States, Respondent. ____________________

Petitions for Review of an Order of the Board of Immigration Appeals. No. A029-604-552 ____________________

ARGUED MAY 17, 2023 — DECIDED AUGUST 8, 2023 ____________________

Before RIPPLE, SCUDDER, and LEE, Circuit Judges. SCUDDER, Circuit Judge. Eugeniusz Wojciechowicz, a Polish citizen and U.S. lawful permanent resident, was denied entry to the United States in 2019 due to several prior theft- related convictions, which are considered crimes involving moral turpitude under immigration law. While detained and awaiting removal, Wojciechowicz obtained a pardon from Il- linois Governor J.B. Pritzker, and the Board of Immigration Appeals granted a stay of removal to consider whether to 2 Nos. 22-1086 & 22-2280

reopen removal proceedings. But Immigrations and Customs Enforcement, the federal agency tasked with detaining and removing noncitizens, removed him to Poland anyway in vi- olation of the Board’s stay. The Board later declined to reopen his removal proceedings. Wojciechowicz now seeks review of the Board’s decision not to reopen removal proceedings, contending that Gover- nor Pritzker’s pardon should have made him retroactively ad- missible to the United States in 2019. But the Immigration and Nationality Act is clear that a pardon does not make an oth- erwise inadmissible noncitizen admissible, even if a pardon can save a resident noncitizen from being removed. And Wojciechowicz identifies no other legal or constitutional er- rors that would give us jurisdiction to review the Board’s de- cision. We therefore deny his petition. I A Eugeniusz Wojciechowicz came to live in the United States in the late 1980s. In 1999 he married a U.S. citizen, with whom he has two kids. He became a lawful permanent resident in 2004. While working in Chicago, Illinois as a subcontractor in- stalling windows, Wojciechowicz began double-billing for his work. His scheme continued for several years, and in the end he stole over $100,000 in connection with nearly 50 jobs. In time he was arrested and charged under Illinois law with theft by deception, theft by unauthorized control, and forgery. He pleaded guilty to all counts in 2011, and the state court sen- tenced him to two years of probation and required him to pay restitution. Nos. 22-1086 & 22-2280 3

In March 2019 Wojciechowicz traveled to Poland for his sister’s funeral. When he attempted to reenter the United States at O’Hare International Airport, however, he was stopped at customs due to his prior convictions. Those con- victions, Customs and Border Protection officials determined, constituted crimes involving moral turpitude and rendered him inadmissible. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). So Immi- gration and Customs Enforcement detained Wojciechowicz and initiated proceedings to remove him from the United States. Although he remained in the country while those pro- ceedings were ongoing, under the (somewhat counterintui- tive) terminology of immigration law he was never “admit- ted” to the United States. See Jennings v. Rodriguez, 138 S. Ct. 830, 836 (2018). Wojciechowicz’s first response to the removal proceedings was to apply for a waiver of inadmissibility, which he did in May 2019. He claimed that removal would adversely impact his wife and kids. An immigration judge denied his waiver application on two grounds, concluding both that he had failed to show extreme hardship and also that the severity of his prior crimes weighed against waiver as a discretionary matter. The immigration judge therefore determined that Wojciechowicz was inadmissible and, as a result, removable. See 8 U.S.C. § 1227(a)(1)(A) (deeming any noncitizen who was inadmissible at the time of entry to be removable). In November 2019 the Board of Immigration Appeals af- firmed the immigration judge’s ruling based on the judge’s second, discretionary justification. Wojciechowicz then sought review in our court, but in July 2020 we dismissed his petition for lack of jurisdiction because he failed to raise a 4 Nos. 22-1086 & 22-2280

legal challenge to the Board’s decision. See Wojciechowicz v. Barr, 812 F. App’x 382 (7th Cir. 2020). From there ICE set a removal date of November 27, 2020. A week before that date arrived, however, Wojciechowicz re- ceived a pardon from Governor Pritzker for his 2011 convic- tions. Wojciechowicz then filed—on November 27, the day he was scheduled to be removed—a request to stay his removal and to reopen removal proceedings under 8 U.S.C. § 1229a(c)(7). He also asked the Board to reopen proceedings on its own motion—a request known in immigration parlance as sua sponte reopening. See 8 C.F.R. § 1003.2(a) (2002) (author- izing the Board to “at any time reopen or reconsider a case in which it has rendered a decision on its own motion”) (amended 2020). The Board granted a stay of removal, but ICE—in clear vi- olation of the stay and with no accompanying explanation— removed Wojciechowicz to Poland. He has remained there since. B In December 2021 the Board denied Wojciechowicz’s mo- tion to reopen. The Board explained that his motion was time- barred: his removal order became final in November 2019 when the Board affirmed the immigration judge’s denial of his waiver application, but he waited until November 2020 to move to reopen the proceedings. That put him well beyond the 90-day statutory deadline imposed by 8 U.S.C. § 1229a(c)(7)(C)(i). The Board also declined to exercise its dis- cretion to reopen removal proceedings on its own accord. It found no statutory support in 8 U.S.C. § 1182—the section of the Immigration and Nationality Act that governs Nos. 22-1086 & 22-2280 5

admissibility—for Wojciechowicz’s contention that Governor Pritzker’s pardon rendered him admissible despite his con- victions admittedly being for crimes involving moral turpi- tude. The following month Wojciechowicz filed a petition for re- view in our court. He also returned to the Board with a motion to reconsider, where he developed his pardon-related argu- ments more fully. In that motion he identified a 1954 Board decision and a 1991 State Department regulation that, in his view, supported his position that he should not be considered inadmissible in light of his pardon. See Matter of H-, 6 I. & N. Dec. 90 (BIA 1954); 22 C.F.R. § 40.21(a)(5). He also asserted that his pardon had the effect of voiding his 2011 convictions entirely. The Board was unpersuaded. It found that Matter of H- no longer governed admissibility determinations because Con- gress had significantly amended the INA several times since 1954, undermining that decision’s precedential value. The Board also declined to rely on the State Department regula- tion, explaining that the INA includes no pardon waiver that would make an otherwise inadmissible noncitizen admissible and emphasizing that a “regulation cannot countermand a statute.” Finally, the Board rejected Wojciechowicz’s alterna- tive contention—that the pardon he received voided his con- victions altogether—because he had already admitted to com- mitting and being convicted of crimes involving moral turpi- tude. All of this led the Board to deny Wojciechowicz’s mo- tion to reconsider. Wojciechowicz now petitions for review from the Board’s denial of both his motions. 6 Nos. 22-1086 & 22-2280

II In our review of the Board’s decisions, we must separate Wojciechowicz’s statutory motion to reopen removal pro- ceedings from his efforts to convince the Board to reopen pro- ceedings on its own motion. That is because Congress has lim- ited federal courts’ review of Board of Immigration Appeals decisions. On the one hand, we have jurisdiction to review the Board’s denial of motions to reopen under the INA itself. See Reyes Mata v. Lynch, 576 U.S. 143, 147–48 (2015) (citing 8 U.S.C. § 1252(a)(1), (b)(6)). We review the Board’s decisions on these issues for abuse of discretion. Yusev v. Sessions, 851 F.3d 763, 766 (7th Cir. 2017). On the other hand, though, we lack juris- diction to review the Board’s decision whether to exercise its discretion to sua sponte reopen proceedings unless that deci- sion “was tainted by a legal error.” Cruz-Velasco v. Garland, 58 F.4th 900, 904 (7th Cir. 2023). We therefore begin with Wojciechowicz’s motion to reo- pen under the INA. By its terms, the Act required him to file that motion “within 90 days of the date of entry of a final ad- ministrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). Yet his motion to reopen (filed in November 2020) came a full year after his removal order became final (in November 2019), making it untimely. Wojciechowicz now highlights that the justification for his motion to reopen—Governor Pritzker’s pardon—came only seven days before he filed his motion. That is a reasonable point, and it might have presented a good case for equitable tolling of the 90-day statutory deadline had Wojciechowicz requested it. See Hernandez-Alvarez v. Barr, 982 F.3d 1088, 1095 (7th Cir. 2020) (recognizing that an untimely motion may be permitted “if the petitioner can show that ‘he could not have Nos. 22-1086 & 22-2280 7

reasonably been expected to file earlier’” (quoting Yusev, 851 F.3d at 767)). But he never did. Indeed, Wojciechowicz did not even acknowledge in his motion to reopen that the deadline had long since passed, let alone request equitable tolling. In these circumstances, we cannot say the Board abused its dis- cretion by denying Wojciechowicz’s motion to reopen as un- timely. See id. at 1095–96. III We turn next to Wojciechowicz’s contention that the Board should have exercised its discretion to reopen his removal proceedings on its own initiative. Remember, though, that we have jurisdiction only to determine whether the Board com- mitted legal error in denying a request for sua sponte reopen- ing. See Cruz-Velasco, 58 F.4th at 904. A Wojciechowicz’s primary contention is that the pardon he received from Governor Pritzker either waives or effectively vacates his convictions for crimes involving moral turpitude, which were what made him inadmissible back in 2019. Two sections of the Immigration and Nationality Act are central to our analysis. Do not read so fast as to miss the dis- tinction between them. Section 1182 defines which nonciti- zens are “inadmissible,” such that they cannot receive visas or be admitted to the United States. Section 1227, meanwhile, defines which noncitizens are removable (or “deportable”), such that they may be removed from the United States if pre- sent here. Both § 1182 and § 1227 include provisions for noncitizens who have been convicted of crimes involving moral turpi- tude. A noncitizen who has been convicted of or who admits 8 Nos. 22-1086 & 22-2280

to having committed such a crime is inadmissible. See § 1182(a)(2)(A)(i)(I). But a noncitizen is removable based on a conviction for such a crime only if convicted within a specific period of time after being admitted to the United States. See § 1227(a)(2)(A)(i) (imposing timelines of 5–10 years depend- ing on the noncitizen’s lawful permanent resident status). Both sides agree on how these provisions, standing alone, apply to Wojciechowicz. He could not have been removed based on his 2011 convictions because more than 10 years had passed since he was admitted to the United States in 1987. But those convictions would still render him inadmissible, as § 1182(a)(2)(A)(i)(I) applies regardless of when the convic- tions came. And once Wojciechowicz left the country (to at- tend his sister’s funeral in Poland) and attempted to reenter at O’Hare Airport as an inadmissible noncitizen, that act— and not his prior convictions—made him removable under a different provision, § 1227(a)(1)(A). Timing is not the only difference between the INA’s sec- tions regulating admissibility and removability, however. In its 1990 amendments to the INA, Congress added a pardon waiver to § 1227. See Immigration Act of 1990, Pub. L. No. 101-649, § 602(a), 104 Stat. 4978, 5080 (codified at 8 U.S.C. § 1227(a)(2)(A)(vi)). That newly added provision clarifies that § 1227(a)(2)(A)(i), which makes removable certain noncitizens convicted of crimes involving moral turpitude, “shall not ap- ply in the case of [a noncitizen] with respect to a criminal con- viction if the [noncitizen] subsequent to the criminal convic- tion has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States.” § 1227(a)(2)(A)(vi). But Congress did not add a similar pardon waiver to § 1182, even as it made other Nos. 22-1086 & 22-2280 9

substantive amendments to that section of the INA. See Im- migration Act § 601 (amending 8 U.S.C. § 1182). No doubt these distinctions can seem subtle. But they are important. What they mean as a practical matter is that the INA currently includes a pardon waiver for determinations of removability under § 1227(a)(2)(A)(i)(I) but not for determi- nations of admissibility under § 1182(a)(2)(A)(i)(I). Nor does the INA include a pardon waiver for determinations of re- movability under § 1227(a)(1)(A), which makes removable any inadmissible noncitizen who attempts to enter the United States. That is the provision Wojciechowicz triggered when he attempted to reenter in March 2019. It is on these issues that the parties’ views diverge. Wojciechowicz contends that even though the text of § 1182 includes no express pardon waiver, the pardon he received from Governor Pritzker makes him admissible despite his convictions for crimes involving moral turpitude. The gov- ernment takes the opposite view, asserting that a pardon can- not render an otherwise inadmissible noncitizen admissible. The government has the better position. The plain text of the INA as it stands today—especially when read in light of the 1990 amendments—shows that a pardon for a crime in- volving moral turpitude cannot make an otherwise inadmis- sible noncitizen admissible. The Supreme Court has in- structed that we should “assume that Congress ‘acts inten- tionally and purposely’ when it ‘includes particular language in one section of a statute but omits it in another section of the same Act.’” Polselli v. IRS, 143 S. Ct. 1231, 1237 (2023) (quoting Sebelius v. Cloer, 569 U.S. 369, 378 (2013)). We see no way to read the 1990 amendments, which added an express pardon waiver in § 1227’s provisions regarding crimes involving 10 Nos. 22-1086 & 22-2280

moral turpitude but did not add similar language anywhere in § 1182, as leaving any daylight for a pardon waiver for oth- erwise inadmissible noncitizens. The 1990 amendments undercut Wojciechowicz’s argu- ments to the contrary. The Board’s 1954 decision in Matter of H- rested on the text and structure of the INA as it existed at the time. See 6 I. & N. Dec. at 96 (“An examination of the leg- islative history of the [1952 INA] fails to disclose any intent to change the prior administrative and judicial holdings that pardons were equally effective in exclusion [inadmissibility] or in expulsion [removal] proceedings.”). But Congress has made substantial changes to the INA in the last half century, including the express addition of a pardon waiver in § 1227 and omission of a similar waiver in § 1182. A close examina- tion of that amendment history—which postdates Matter of H- —reveals that Congress intended to change the playing field and make pardons relevant in removability proceedings but not in admissibility proceedings. Wojciechowicz’s reliance on State Department regulations fares no better. To be sure, we recognize that 22 C.F.R. § 40.21(a)(5) says in clear terms that a noncitizen “shall not be considered ineligible under [8 U.S.C. § 1182(a)(2)(A)(i)(I)] by reason of a crime involving moral turpitude for which a full and unconditional pardon has been granted … by the Gover- nor of a State of the United States.” But the INA is clear too, and where agency regulations conflict with statutory text, statutory text wins out every time. See, e.g., Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014) (“[A]n agency interpreta- tion that is ‘inconsisten[t] with the design and structure of the statute as a whole’ does not merit deference.” (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013))). We Nos. 22-1086 & 22-2280 11

simply cannot square the regulation with the text and struc- ture of the INA as it was amended in 1990. Wojciechowicz’s alternative argument—that his pardon effectively undoes his convictions—also falls short under the plain text of the INA. Recall that § 1182 makes inadmissible any noncitizen who has either been convicted of a crime in- volving moral turpitude or “admit[ted] [to] having commit- ted” such a crime. 8 U.S.C. § 1182(a)(2)(A)(i). So even if Gov- ernor Pritzker’s pardon had the effect of wholly erasing Wojciechowicz’s convictions from the record books—a prop- osition we are skeptical of, as Wojciechowicz cites no legal au- thority in support of his position—he would still be inadmis- sible because he has admitted to committing crimes involving moral turpitude. At bottom, the INA and its 1990 amendments are clear. While a pardon can protect an otherwise removable nonciti- zen against removal proceedings, it cannot render an other- wise inadmissible noncitizen admissible. Nor can it protect an inadmissible noncitizen who tries to enter the United States from removal. Any other conclusion would conflict with the plain direction Congress gave when it amended the INA in 1990. B Throughout his appellate brief, Wojciechowicz stresses what he sees as unfairness in how the INA treats noncitizens residing in the United States differently from noncitizens seeking entry to the United States. He did not raise these con- cerns before the Board, but he did not have to: they are rooted in constitutional principles of equal protection, which the Board lacks jurisdiction to consider. See Lopez Ramos v. Barr, 12 Nos. 22-1086 & 22-2280

942 F.3d 376, 379 (7th Cir. 2019). We, however, retain jurisdic- tion to consider constitutional challenges to the INA. See 8 U.S.C. § 1252(a)(2)(D); Klementanovsky v. Gonzalez, 501 F.3d 788, 791 (7th Cir. 2007). To address Wojciechowicz’s equal protection arguments, we look to see whether there is any rational basis that could support Congress’s decision to treat noncitizens seeking ad- mission to the United States differently from noncitizens al- ready present here. See Klementanovsky, 501 F.3d at 791. The Supreme Court has recognized that these classes of nonciti- zens are “differently situated” from one another, see Landon v. Plasencia, 459 U.S. 21, 31 (1982), and at least one other circuit has concluded as a result that the INA permissibly treats crimes involving moral turpitude differently in the context of admission than in the context of removal, see Mejia-Rodriguez v. Holder, 558 F.3d 46, 49–50 (1st Cir. 2009) (citing Landon, 459 U.S. at 31). We agree. The government has identified several possible reasons for Congress’s line-drawing, and we can think of oth- ers. For one, Congress could have reasonably viewed a par- don as evidence that a noncitizen has, despite having a par- ticular criminal history, meaningfully integrated into their community. Congress therefore could have sought to encour- age that behavior by permitting the noncitizen to remain but not necessarily leave and return at will. Another possible rea- son, the government explains, is that Congress might have wanted to keep pardoned noncitizens in the country while their citizenship applications are pending. In short, we can think of many “reasonably conceivable state[s] of facts” and “plausible reason[s]” Congress might have had for its deci- sion to add a pardon waiver to § 1227 but not § 1182. See Nos. 22-1086 & 22-2280 13

Klementanovsky, 501 F.3d at 791 (quoting Lara-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001)). So Wojciechowicz’s equal pro- tection claim falls short. * * * In closing we want to briefly recognize the great personal and social impact of immigration proceedings. As the facts giving rise to this petition demonstrate, the INA imposes se- vere and lasting consequences for misconduct—not just for noncitizens but for their families as well. And it is very diffi- cult to read this opinion and not react with frustration and disappointment to ICE’s removal of Wojciechowicz in viola- tion of the Board’s stay. No doubt that has only added to the emotional toll these proceedings have had on Wojciechowicz and his family. In the end, though, our authority is limited, and our obli- gation remains to respect the limits Congress has placed on our jurisdiction. Wojciechowicz has not identified any legal or constitutional error in the Board’s decisions, so we may not review his claims any further. We therefore have no choice but to DENY the petition for review.