         14-154
         Blaszczyk v. Lynch
                                                                                       BIA
                                                                               A099 882 834
                                                                               A088 229 878
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT
                                         SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 26th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                            ROBERT A. KATZMANN,
 8                                 Chief Judge,
 9                            REENA RAGGI,
10                            CHRISTOPHER F. DRONEY,
11                                 Circuit Judges.
12
13
14       KRZYSZTOF WOJCIECH BLASZCZYK,
15       AGNIESZKA ANNA BLASZCZYK,
16                Petitioners,
17
18                            v.                                14-154
19                                                              NAC
20       LORETTA E. LYNCH,* UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23
24
25       ________________________________________________________
26       *Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
27       Attorney General Loretta E. Lynch is automatically
28       substituted for former Attorney General Eric H. Holder, Jr.
29
30
 1
 2   FOR PETITIONERS:        Michael E. Piston, Law Offices of
 3                           Allen E. Kaye, P.C., New York, NY.
 4
 5   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 6                           General; Shelley R. Goad, Assistant
 7                           Director; Monica Antoun, Trial
 8                           Attorney, Office of Immigration
 9                           Litigation, United States Department
10                           of Justice, Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

13   Board of Immigration Appeals (“BIA”) decision, it is hereby

14   ORDERED, ADJUDGED, AND DECREED that the petition for review

15   is DENIED.

16       Krzysztof Wojciech Blaszczyk (“Krzysztof”) and

17   Agnieszka Anna Blaszczyk (“Agnieszka”) (collectively, “the

18   Blaszczyks”), natives and citizens of Poland, seek review of

19   the December 23, 2013, decision of the BIA denying their

20   motion for reconsideration.   In re Blaszczyk, Nos. A099 882

21   834, A088 229 878 (B.I.A. Dec. 23, 2013).   We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history in this case.

24       Our review is limited to the BIA’s denial of

25   reconsideration because the Blaszczyks did not petition for

26   review of the BIA’s underlying dismissal of their appeal

27   from the IJ’s denial of Krzysztof’s application to adjust

28   status.   See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d

     2
 1   Cir. 2006).   We review the BIA’s denial of a reconsideration

 2   motion for abuse of discretion.    Id.   Because a motion to

 3   reconsider must specify errors of fact or law in the BIA’s

 4   decision, 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R.

 5   § 1003.2(b)(1), the BIA does not abuse its discretion in

 6   denying such a motion when it merely repeats arguments that

 7   the BIA has previously rejected, see Jin Ming Liu, 439 F.3d

 8   at 111.

 9       Here, the BIA did not abuse its discretion in denying

10   the Blaszczyks’ motion to reconsider its prior decision.        In

11   its first decision, the BIA declined to revisit     Matter of

12   Legaspi, 25 I. & N. Dec. 328 (BIA 2010), under which

13   Krzysztof was ineligible to adjust status to lawful

14   permanent resident pursuant to 8 U.S.C. § 1255(i).     And in

15   declining to reconsider, the BIA rejected the Blaszczyks’

16   argument that Matter of Estrada, 26 I. & N. Dec. 180 (BIA

17   2013) was a continuation of the flawed reasoning in     Matter

18   of Legaspi, and concluded that Matter of Estrada would not

19   change the result in their case.

20       Section 1255(i) makes adjustment of status available to

21   certain applicants who are ineligible to adjust status

22   pursuant to § 1255(a), such as those, like Krzysztof, who


     3
 1   fail to maintain continuous lawful status since entering the

 2   United States.   See 8 U.S.C. § 1255(c)(2).       In order to

 3   adjust status under § 1255(i), the applicant must be a

 4   “grandfathered alien,” which the statute and agency

 5   regulations define as the beneficiary of a visa petition or

 6   application for labor certification filed on or before April

 7   30, 2001 (the principal grandfathered alien), or the child

 8   or spouse of the principal beneficiary (the derivative

 9   grandfathered alien).        8 U.S.C. § 1255(i)(1)(B); 8 C.F.R.

10   § 1245.10(a)(1)(i).     In     Matter of Legaspi, the BIA held

11   that an alien, such as Krzysztof, cannot obtain

12   grandfathered status from a spousal relationship with a

13   derivative grandfathered alien (here, Agnieszka, who derived

14   that status from her father) because the statute “makes

15   clear that it applies only to the beneficiary of the visa

16   petition and to that principal alien’s spouse or child.”            25

17   I. & N. Dec. at 329-30 (emphasis in original).        In   Matter

18   of Estrada, the BIA held that the spouse or child of a

19   principal grandfathered alien cannot qualify as a derivative

20   grandfathered alien when the spouse or child relationship

21   was established after April 30, 2001.        26 I. & N. Dec. at

22   184-85.


     4
 1          Insofar as the Blaszczyks argued that   Matter of

 2   Estrada was a continuation of the legal error made in

 3   deciding Matter of Legaspi, they merely repeated previously

 4   rejected arguments and the BIA did not abuse its discretion

 5   in denying their motion to that extent.    See Jin Ming Liu,

 6   439 F.3d at 111.    Furthermore, the BIA reasonably concluded

 7   that    Matter of Estrada would not change the result in the

 8   Blaszczyks’ case because    Estrada applies only to spouses

 9   and children of principal grandfathered aliens, and not to

10   spouses of derivative grandfathered aliens, such as

11   Krzysztof.    26 I. & N. Dec. at 184-85.

12          Finally, contrary to the Blaszczyks’ arguments here,

13   both 8 U.S.C. § 1255(i) and the Supplementary Information to

14   the interim rule amending the relevant regulations

15   explicitly include only “a spouse or child of the     principal

16   alien” as a grandfathered alien.    8 U.S.C. § 1255(i)

17   (emphasis added); see Adjustment of Status to That Person

18   Admitted for Permanent Residence; Temporary Removal of

19   Certain Restrictions of Eligibility, 66 Fed. Reg. 16383,

20   16384 (Mar. 26, 2001).

21          For the foregoing reasons, the petition for review is

22   DENIED.    As we have completed our review, any stay of


     5
1   removal that the Court previously granted in this petition

2   is VACATED, and any pending motion for a stay of removal in

3   this petition is DISMISSED as moot.    Any pending request for

4   oral argument in this petition is DENIED in accordance with

5   Federal Rule of Appellate Procedure 34(a)(2), and Second

6   Circuit Local Rule 34.1(b).

7                                 FOR THE COURT:
8                                 Catherine O’Hagan Wolfe, Clerk

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