JAROSLAW MOZDZEN, EWA MOZDZEN, and SYLWIA MOZDZEN v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3017
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
ARGUED APRIL 22, 2010—DECIDED SEPTEMBER 7, 2010
Before KANNE, WILLIAMS, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. 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,”

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2 No. 09-3017
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

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No. 09-3017 3
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

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4 No. 09-3017
stamp. The Mozdzens had no valid tourist visa at this
time. Aside from this visit, the Mozdzens resided con-
tinuously 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 docu-
ments, 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 cancel-
lation of removal.

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No. 09-3017 5
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 eligi-
bility to remain in the United States. See I.N.S. v. Lopez-
Mendoza, 468 U.S. 1032, 1038-39 (1984). In a removal pro-
ceeding, 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 sup-
plemented by any additional reasoning by the Board of
Immigration Appeals. Milanouic v. Holder, 591 F.3d 566,
570 (7th Cir. 2010). The Board’s legal conclusions are
reviewed de novo, and factual determination are upheld
as long as they are supported by substantial evidence.
Krasilych v. Holder, 583 F.3d 962, 966 (7th Cir. 2009).
Jaroslaw and Ewa conceded that they are natives and
citizens of Poland who initially entered the United States
as non-immigrants or visitors and stayed longer than
permitted. But they claim they are not removable
because they are present in the United States as legal
permanent residents and lawfully re-entered the country
in 1999 based on that LPR status. In April 1999, the
Mozdzens, with the help of “travel agent” Polszakiewicz,
paid $12,000 to an immigration official they met in the

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6 No. 09-3017
back of a travel agency. In preparation for this meeting,
the Mozdzens were fingerprinted and received medical
checkups, as would any applicant for adjustment of
status. In exchange, they received I-551 stamps in both
their passports and in Sylwia’s (who was still living in
Poland at this time). A legitimate I-551 stamp acts as a
symbol that an application to adjust status has been
favorably adjudicated. See 8 C.F.R. § 103.2(b)(17). Because
the actual permanent resident card may take months
to reach the applicant, the temporary I-551 stamp can be
used to verify a claim of LPR status in the absence
of “countervailing evidence.” Krasilych, 583 F.3d at 967.
The stamp even allows the holder to travel, which Ewa
did in August 1999 to retrieve her daughter from Po-
land. Jaroslaw also traveled abroad in September 1999.
Here, however, the stamp was only provided to
give Operation Durango the appearance of legitimacy. In
Krasilych, the petitioner received an I-551 stamp in con-
nection with Operation Durango, and we rejected his
claim that he had any legal status. Id. at 966. As it did
there, the evidence here shows that this stamp was sym-
bolic of nothing. The Mozdzens’ application for LPR
status was never adjudicated or processed, and would
not have been granted if it had. Perhaps the Mozdzens
attempted this path towards LPR status (paying $12,000
to a broker and “corrupt” immigration official) because
they lacked a legitimate basis for adjustment—the
record reflects that Jaroslaw overstayed his visitor’s
visa and Ewa entered through Canada. The stamp did
nothing to change that unlawful presence, and most
certainly did not adjust their status to that of permanent
residents.

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No. 09-3017 7
The Mozdzens argue that they were lawfully admitted
in 1999, but the definition of admission for an alien and
someone with LPR status differ. For an alien, admission
is “the lawful entry of the alien into the United States
after inspection and authorization by an immigration
officer.” 8 U.S.C § 1101(a)(13)(A). And lawful entry, in
turn, requires a valid unexpired immigrant visa. 8 U.S.C.
§ 1181(a). When the Mozdzens reentered the country
in 1999, they did not have valid immigrant visas. So, they
were never lawfully admitted in 1999, and based on
their concessions that they entered the United States
using the I-551 stamps in 1999, the IJ correctly found
they were removable.
For this reason, we find it unnecessary to discuss the
merits of any argument based on LPR status, as the
Mozdzens are not entitled to any benefits or processes
extended to citizens or legal permanent residents or
even people who have improperly become permanent
residents. More specifically, 8 U.S.C. § 1256, which pro-
vides a process of rescission for persons who have
received an adjustment of status, has no applicability,
and would not help the Mozdzens even if the I-551 stamp
had actually adjusted their status. Cf. Estrada-Ramos
v. Holder, No. 09-3611, at 5 (7th Cir. July 1, 2010)
(“ ‘[L]awfully admitted for permanent residence’ does not
apply to aliens who ‘obtained their permanent resident
status by fraud, or had otherwise not been entitled to it.’ ”)
(citing Matter of Koloamatangi, 23 I. & N. Dec. 548, 550
(BIA 2003)) (emphasis in original).
Substantial evidence supports the immigration judge’s
finding that the Mozdzens were removable, as they

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8 No. 09-3017
were natives and citizens of Poland who were not
lawfully present in the United States. See 8 U.S.C.
§ 1227(a)(1)(A). We deny the petition for review.
B. No Abuse of Discretion in Denial of Continuance
We review discretionary decisions such as denials of
continuances under the deferential abuse of discretion
standard. See Kucana v. Holder, 130 S. Ct. 827, 831 (2010)
(a jurisdictional bar only applies to agency decisions
that are made discretionary by statute, and not regula-
tion); Juarez v. Holder, 599 F.3d 560, 564-65 (7th Cir. 2010).
A continuance requires a showing of good cause.
8 C.F.R. § 1003.29; Juarez, 599 F.3d at 565. The Mozdzens
argue that the substitution of an attorney close to the
merits hearing date should act as good cause for a con-
tinuance. Specifically, counsel argues that his late sub-
stitution meant that he was ill-prepared for the merits
hearing because he lacked videotapes of Operation
Durango in action as well as time to further research
avenues for relief. The IJ was well within its discretion
to deny the motion for a continuance. The case had
been continued several times and the judge had given
Jaroslaw over a year to prepare evidence for his cancel-
lation of removal application. Furthermore, the IJ did not
rely on Operation Durango or any allegations of wrong-
doing by the Mozdzens in making his removal decision.
The key facts that provided the basis for removability
are not in dispute: the Mozdzens were nationals and
citizens of Poland with no legal status in the United
States. A continuance to uncover information about the

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No. 09-3017 9
undercover operation would have had no bearing on
that decision and could not change those facts.
C. Ewa Ineligible for Cancellation of Removal
The BIA properly affirmed the IJ’s finding that Ewa
did not qualify for consideration of cancellation of re-
moval. For nonpermanent residents, the Attorney General
may:
cancel removal of, and adjust to the status of
an alien lawfully admitted for permanent resi-
dence, an alien who is inadmissible or deportable
from the United States if the alien—
(A) has been physically present in the United
States for a continuous period of not less than 10
years immediately preceding the date of such
application . . . .”
8 U.S.C. § 1229b(b)(1), along with other requirements.
The statute then goes on to state that a period of “continu-
ous physical presence” ends “when the alien is served a
notice to appear.” 8 U.S.C. § 1229b(d)(1). This is referred
to as the “stop-time rule.” Dababneh v. Gonzales, 471 F.3d
806, 810 (7th Cir. 2006). Ewa arrived in the United States
via Canada sometime in August 1995, and she was person-
ally served with a notice to appear on June 16, 2005. The
argument that the stop-time rule does not apply here is
contrary to the plain language of the statute and
precedent, 8 U.S.C. § 1229(d)(1); see also, e.g., Dababneh, 471
F.3d at 810, and we reject it. Ewa only acquired nine
years and nine months of physical presence prior to

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10 No. 09-3017
receiving her notice to appear, and she is statutorily
ineligible for cancellation.
III. CONCLUSION
For the reasons stated above, the petitions for review
are DENIED.
9-7-10

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