Szczesny v. Ashcroft, 03-1047.

Decision Date12 February 2004
Docket NumberNo. 03-1047.,03-1047.
PartiesZbigniew SZCZESNY, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Stanley J. Horn (argued), Azulay, Horn & Seiden, Chicago, IL, for Petitioner.

George P. Katsivalis, Chicago, IL, Luis E. Perez (argued), Department of Justice, Civ. Div., Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, MANION, and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Zbigniew Szczesny, a native citizen of Poland, entered the United States in 1989 on a six-month visitor's visa. But then after winning the Diversity Immigrant Lottery in 1995, he applied for and received an adjustment of status from lawful nonimmigrant visitor to permanent resident. According to the government, however, an INS district director issued a notice of intent to rescind the favorable change in status in March 1995 after concluding that Szczesny had submitted multiple petitions for the 1995 lottery in violation of INS regulations. See 22 C.F.R. § 42.33(a)(4) (1995). The district director never received a response to the notice, and accordingly he rescinded Szczesny's permanent resident status without a hearing pursuant to 8 C.F.R. § 246.2 (1995). Szczesny asserts that he was unable to respond because he never received notice of the proposed action. Instead, says Szczesny, the first communication he received from the district director was notification that his permanent resident status had been rescinded. In 1996, with Szczesny's permanent resident status now revoked, the INS initiated deportation proceedings by ordering him to show cause why he should not be deported for overstaying his visa.

Szczesny filed a motion to terminate the deportation proceedings, claiming that he should not be deported because he never received notice of the district director's intent to rescind his status as required by INS regulations, and because the notice that the agency purportedly sent did not comply with 8 C.F.R. § 246.1, the INS regulation governing the content of a notice of intent to rescind. An immigration judge held several hearings on Szczesny's motion. At the hearings the IJ expressed concern over the district director's alleged failure to provide Szczesny with notice, and observed that due process would be violated if Szczesny could not obtain review of the director's decision. However, in a 2001 decision the IJ ultimately denied Szczesny's motion to terminate the deportation proceedings without reaching the merits of Szczesny's claims, opining that, on the basis of Matter of Rodriguez-Esteban, 20 I & N Dec. 88, 90, 1989 WL 331869 (BIA 1989), he lacked jurisdiction to review the district director's rescission order. The IJ subsequently denied Szczesny leave to file an application for suspension of deportation but granted his request for voluntary departure. Szczesny appealed the IJ's decision to the Board of Immigration Appeals, which summarily affirmed the decision of the IJ, making the IJ's decision the decision of the agency...

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9 cases
  • Diallo v. Ashcroft
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 26, 2004
    ... ... 8 C.F.R. § 1003.1(e)(4); Szczesny v. Ashcroft, ... Page 692 ... 358 F.3d 464, 465 (7th Cir.2004). That decision held that the final blow to Diallo's asylum claim was that he had ... ...
  • U.S. v. Harris
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 6, 2008
    ...in his appellate briefs or at oral argument. See Valentine v. City of Chicago, 452 F.3d 670, 680 n. 1 (7th Cir.2006); Szczesny v. Ashcroft, 358 F.3d 464, 465 (7th Cir.2004). Initially objecting to a criminal sentence in a post-argument supplemental memorandum does seem like a waiver. See Va......
  • U.S. v. Vallery
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 7, 2006
    ...to deal with the meaning of § 111. But as it was raised for the first time at oral argument, this argument is waived. Szczesny v. Ashcroft, 358 F.3d 464, 465 (7th Cir.2004) (citation omitted). In any event, we reject the government's premise that all "restrainings" necessarily involve physi......
  • Carreon v. Illinois Dept. of Human Services
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 21, 2005
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