Beata Zarzecki v. MERRICK B. GARLAND, Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3267
BEATA Z ARZECKI ,
Petitioner,
v.
M ERRICK B. GARLAND, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089-783-701
____________________
S UBMITTED S EPTEMBER 4, 2024 — DECIDED J ANUARY 3, 2025
____________________
Before R OVNER , BRENNAN , and LEE , Circuit Judges.
R OVNER , Circuit Judge. Beata Zarzecki unsuccessfully peti-
tioned the Attorney General, through the immigration courts
of the Department of Homeland Security, to use his discretion
to adjust her status from “removeable” to “lawful permanent
resident,” and now asks for our review. Appellate courts are
accustomed to evaluating decisions from lower courts using
either a de novo standard of review, or some form of review

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2 No. 21-3267
that grants deference to the decisions of those courts—such as
clear error or abuse of discretion. In the field of immigration
law, however, Congress has opted to place discretionary de-
cision-making regarding adjustment of status in the hands of
the immigration courts alone. Consequently, the Immigration
and Nationality Act strips jurisdiction from this court to re-
view any discretionary determination that the immigration
courts make regarding whether or not to grant adjustment of
status. There is, however, an exception: this court can review
the decisions of the immigration judge and Board of Immigra-
tion Appeals (Board) for legal error, including constitutional
error. Zarzecki argues that the Board erred legally when it de-
nied her adjustment of status, but we find otherwise. We
therefore must dismiss her petition for review for lack of ju-
risdiction.
I.
Zarzecki, a Polish national, entered the United States on
April 28, 1989, on a six-month tourist visa, but has remained
in this country ever since. In 1998, she married her husband,
Janusz Zarzecki, who is now a United States citizen, as is their
daughter, Katarzyna, who was born in 1996. Zarzecki also has
a son from a previous marriage who remained in Poland
when Zarzecki left and was raised by Zarzecki’s parents. On
February 28, 2013, the government began removal proceed-
ings against Zarzecki who then applied for adjustment of sta-
tus based on an immigrant visa petition filed by her citizen
spouse, Janusz.
Zarzecki’s actions leading up to, and conviction following,
a fatal drunk driving accident took center stage at her adjust-
ment of status hearing held in October 2013. At that hearing,
the following facts emerged: On July 26, 2005, Zarzecki began

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No. 21-3267 3
drinking at the house where she worked as a caregiver. She
called her husband to pick her up, but then decided to drive
home after she tired of waiting for him. On her way home,
while driving an estimated 80 miles per hour in a 55 mile per
hour zone, she struck a car from behind, killing Charlotte Ry-
mark and severely injuring her husband, Robert. Toxicology
testing revealed that Zarzecki had a blood alcohol serum level
of 254 mg/dl (0.254 BAC. The legal limit for intoxication is 80
mg/dl or .08 BAC). In a negotiated plea deal, Zarzecki pled
guilty to “felony aggravated driving under the influence” and
was sentenced to nine years in prison, of which she served
eight years and three months.
The immigration judge also considered two other contacts
with law enforcement. In 2003, police arrested and charged
Zarzecki with aggravated assault following an argument with
her husband which occurred when he arrived home from
work to find her drinking. The charges were later dropped.
And in 2004, Zarzecki was charged (but not convicted) of
driving without insurance.
Although the fatal accident laid the heaviest weight on the
scale against adjustment of status, Zarzecki hoped that evi-
dence about her mental health treatment would be one of the
mitigating factors favoring adjustment. At her hearing before
the immigration judge, Zarzecki testified about her mental
health. She stated that she was first diagnosed with depres-
sion at the age of seventeen in Poland, but she did not receive
any treatment until 1996, when she was in the United States
and a medical provider prescribed Prozac. She testified that
sometimes, because she felt better, she would stop taking the
medication for two to three months at a time, and then would
use alcohol to help her cope with the symptoms of depression

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4 No. 21-3267
as they arose because it “worked faster.” R. 122. According to
Zarzecki, approximately a year and a half after she was re-
leased from prison, she started having suicidal thoughts and
admitted herself to a hospital for two weeks. She submitted
no documents or other evidence regarding that hospitaliza-
tion.
Other than her own testimony, the only evidence about
her mental health treatment came from a few sources, with
superficial information. First, Zarzecki submitted a three-sen-
tence letter, dated September 11, 2018, from Dr. Bindu
Gandhiraj which stated, “To Whom It May Concern: This is
to notify you that I have been seeing Beata Zarzecki at the
VNA since 08/08/2016 for treatment of depression and anxi-
ety. She has been very compliant with her treatment and fol-
lows all the recommendations. Please contact our office if you
have any questions.” R. 203. Zarzecki submitted three other
cursory pieces of evidence regarding treatment for mental
health issues. The first was a “Treatment Note” from the Illi-
nois Department of Corrections dated April 7, 2009, reflecting
a diagnosis for depression disorder, and noting that Zarzecki
wished to stop taking her medication for depression. R. 399.
The second was a notice addressed to the Immigration and
Naturalization Office from the Alcohol Drug Safety Interven-
tion Inc. and Polish American Family Services, dated March
13, 2013, shortly after her release from prison. That note
stated, “Mr. Janusz Zarzecki, husband of Beata Zarzecki con-
tacted our program to arrange treatment relating to her 2005
DUI arrest. Mrs. Zarzecki will attend and participate in the
PROGRAM FOR PROBLEMATIC USE OF ALCOHOL at our
clinic as soon as she will be released.” R. 374. Zarzecki pro-
vided no certificate of completion or any evidence that she at-
tended the program at all. Finally, the record contains a single

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No. 21-3267 5
email from Dr. Poprawski of the First Chicago Neuroscience
clinic to Janusz Zarzecki confirming his wife’s appointment
on March 12, 2013. R. 376. Again, Zarzecki submitted no evi-
dence about the nature of the appointment or whether she at-
tended it.
Zarzecki testified that she did not attend group counseling
and did not seek any counseling at all until a year and a half
after her release from prison, explaining that once she got
home from prison, she “thought [she] would feel better” and
“didn’t want to hear about seeing any doctors.” R. 125. Zar-
zecki alleged, without external evidence, that she had been
diagnosed with agoraphobia and did not want to leave the
house.
When asked whether she had attended any drug and al-
cohol treatment programs, she testified that “while in jail” she
“tried to attend this kind of meeting[]” and “also once [she]
got back home, there was a facility close by” but “they made
[her] feel horrible,” she “couldn’t stand being there,” and they
were “more troublesome than they should be.” R. 118–19. On
redirect examination, Zarzecki elucidated that she prefers
one-on-one therapy to “meetings with other people” because
she can “talk about [her] stuff” and she does not “like lis-
ten[ing to] other people[’s] problems … they complain very
much, you know,” and this makes her feel “depressed.”
R. 127–28. She explained that alcohol treatment would incon-
venience her husband or daughter who would have to drive
her to the meetings, although she also testified that she has
taken an Uber to treatment.
The immigration judge also considered Zarzecki’s testi-
mony that if she were removed to Poland, she would have no
social network, nowhere to live, would have trouble finding

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6 No. 21-3267
work there, and that her husband and daughter would not
accompany her, as they too would have trouble finding em-
ployment in Poland. He also considered the hardship it
would create for her daughter, Katarzyna, who had already
endured almost nine years of her childhood motherless.
Despite the sympathetic factors, the immigration judge
found that Zarzecki had not adequately addressed her mental
health issues nor demonstrated an attempt to atone for the
devastating loss of another life. In addition to noting the seri-
ous nature of the offense of driving while intoxicated, he also
noted her failure to take her medication, her use of alcohol in
lieu of the prescribed medication, her decision to drive while
intoxicated despite the offer from her husband to drive her
home, and her lack of effort to address her mental health is-
sues following her release from prison. He thus denied her
application for adjustment of status and ordered her removed
to Poland.
Upon the Board’s de novo review, it concluded that the
extremely egregious circumstances surrounding the drunk
driving accident were not outweighed by any countervailing
factors, including Zarzecki’s family ties, her long residence in
the United States, and familial and financial difficulties that
would result from her removal. The Board concluded that, de-
spite Zarzecki’s arguments to the contrary, the immigration
judge did indeed consider her mental health issues. The
Board concluded that Zarzecki’s brief did “not refer to any
particular testimony or documentary evidence relating to her
mental health that the Immigration Judge disregarded.” R. 4.
Nor did she explain how her “mental health constitutes an
equity that weighs in favor of an exercise of discretion.” R. 4.
The Board concluded that Zarzecki neglected to establish

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No. 21-3267 7
“equities that outweigh the serious adverse factors present in
this case” and thus, did not satisfy her burden of proof of
demonstrating that she merited relief in the exercise of discre-
tion. R. 5. Zarzecki timely filed a petition for review in this
court, arguing that the Board did not appropriately apply de
novo review and failed to consider the expert medical evi-
dence.
II.
As a noncitizen who illegally remained in the United
States longer than permitted, Zarzecki was subject to removal
under 8 U.S.C. §1227(a)(1)(B) of the Immigration and Nation-
ality Act. Congress, however, has given the Attorney General
(who acts through a delegation of power to the immigration
judges and the Board) discretion to forgive the illegal activity
and adjust an eligible noncitizen’s status to protect the noncit-
izen from removal, as “a matter of grace.” Patel v. Garland, 596
U.S. 328, 332 (2022) (quoting INS v. St. Cyr, 533 U.S. 289, 308
(2001)); 8 U.S.C. §1255(a). That discretionary power, however,
has been specifically reserved for the Attorney General. Sec-
tion 1252(a)(2)(B)(i) of the Act specifically precludes judicial
review of “any judgment regarding the granting of relief un-
der section … 1255,” which includes discretionary determina-
tions related to adjustment of status. 8 U.S.C. §1252
(a)(2)(B)(i); Patel, 596 U.S. at 347. Notwithstanding this provi-
sion, this court does retain jurisdiction to review claims of le-
gal or constitutional error. See 8 U.S.C. §1252(a)(2)(D); Ndlovu
v. Garland, 99 F.4th 997, 998 (7th Cir. 2024). We have inter-
preted the phrase “questions of law” in this subparagraph
narrowly, holding that legal questions are limited to those in
which the “’Board misinterprets a statute, regulation, consti-
tutional provision, or its own precedent, applies the wrong

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8 No. 21-3267
legal standard, or fails to exercise its discretion at all.’” Mar-
tinez-Baez v. Wilkinson, 986 F.3d 966, 970 (7th Cir. 2021) (quot-
ing Bachynskyy v. Holder, 668 F.3d 412, 417 (7th Cir. 2011)).
Zarzecki’s primary complaint is that the Board failed to
properly consider the expert medical evidence. She is correct
that the wholesale failure to consider evidence would consti-
tute an error of law—in the sense that it would demonstrate a
failure to exercise discretion at all. Id. at 978 (citing Iglesias v.
Mukasey, 540 F.3d 528, 531 (7th Cir. 2008)). Thus, Zarzecki’s
claim that the immigration judge and Board completely ig-
nored expert evidence would be an allegation of legal error.
Id.; see also Arej v. Sessions, 852 F.3d 665, 667 (7th Cir. 2017)
(“[T]he Board cannot make a reasoned decision to deny a mo-
tion to reopen if it ignores the evidence that a petitioner pre-
sents.”); Ward v. Holder, 632 F.3d 395, 397 (7th Cir. 2011)
(whether the Board failed to exercise discretion at all is a legal
question).
On the other hand, “the [Board] does not commit an ‘error
of law’ every time an item of evidence is not explicitly consid-
ered or is described with imperfect accuracy.” Martinez-Baez,
986 F.3d at 976 (quoting Mendez v. Holder, 566 F.3d 316, 323 (2d
Cir. 2009)). In short, only a wholesale dereliction of duties to
consider the evidence amounts to a reviewable legal error.
The immigration judge and Board do not commit legal error
simply because they do not “’expressly parse or refute on the
record each individual argument or piece of evidence offered
by the petitioner.’” Ji Cheng Ni v. Holder, 715 F.3d 620, 625 (7th
Cir. 2013) (quoting Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
2008)).
Zarzecki does not argue that the immigration judge and
Board excluded her expert evidence wholesale. Instead, she

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No. 21-3267 9
complains that the immigration judge and Board “fail[ed] to
accord the requisite weight to expert evidence concerning the
Petitioner’s medical treatment for her mental health condi-
tions.” Zarzecki Brief at 18 (emphasis ours). She also argues
that the immigration judge and Board did not “fully embrace”
the medical evidence, give the facts their “due significance,”
“provide a comprehensive review,” or provide a “meticulous
factual … analysis.” Id. at 19–21. These are complaints about
the depth and weight the agency gave to the evidence and
testimony. The balancing of evidence, however, is at the very
core of the discretionary authority of the agency, over which
we lack jurisdiction. Kiorkis v. Holder, 634 F.3d 924, 928 (7th
Cir. 2011), as amended (Mar. 10, 2011) (noting that an appellate
court is prohibited from reviewing the discretionary methods
the agency uses to weigh various factors). And as we noted,
although the Board may not disregard relevant evidence, it
also need not itemize and explain thoroughly each piece of
evidence offered. Salazar-Marroquin v. Barr, 969 F.3d 814, 818
(7th Cir. 2020); see also Bernardo-De La Cruz v. Garland, 114
F.4th 883, 893 (7th Cir. 2024) (it is not legal error simply be-
cause the immigration judge’s consideration “of the evidence
could have been more thorough”); Martinez-Baez, 986 F.3d at
976 (“the [Board] does not commit an ‘error of law’ every time
an item of evidence is not explicitly considered or is described
with imperfect accuracy.”); Meza v. Garland, 5 F.4th 732, 737
(7th Cir. 2021) (The brevity of the judge’s analysis alone does
not amount to a legal error.).
But there is a more fundamental problem with Zarzecki’s
argument about the expert testimony. It is not clear to what
expert testimony she is referring. Despite Zarzecki’s brief stat-
ing that she submitted “extensive medical documentation,”
no expert proffered a report or affidavit or testified on her

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10 No. 21-3267
behalf. Zarzecki Brief at 19. She offered but one medical rec-
ord with a diagnosis—one page from an Illinois Department
of Corrections Mental Health Diagnostic and Treatment Note
which lists a diagnosis of “depression disorder,” but also
noted her desire to cease medication for depression—the very
behavior for which the immigration judge faulted her. R. 399.
She did not present any other medical records regarding her
diagnosis, specific treatment plans, or prognosis. Her brief in-
cludes only the most minimal references to anything that
could be considered expert evidence. Dr. Gandhiraj wrote a
letter stating that she had been seen between August 2016
(three years after her release from prison) and September 2018
for treatment of depression and anxiety and had been “very
compliant with her treatment and follows all the recommen-
dations.” R. 203. Zarzecki, however, provided no evidence re-
garding his qualifications or expertise, what treatment she
had been receiving, how often she received it, what it meant
that she was “compliant,” or any other evidence that she was
on track to remedy the problems that had contributed to the
fatal accident. The only other reference to any treatment came
in the form of two attempts by Zarzecki’s husband to make
appointments for his wife, with no accompanying evidence
that she attended those appointments. One email dated
March 12, 2013, addressed to her husband indicated that Zar-
zecki had an appointment scheduled with a Dr. Poprawski at
the First Chicago Neuroscience Clinic on March 27, 2013.
R. 376. Zarzecki submitted no documents indicating that Dr.
Poprawski ever treated or saw Zarzecki. Likewise, Zarzecki
produced no documentary evidence indicating that she re-
ceived any treatment from the Alcohol Drug Safety Interven-
tion Inc. and Polish American Family Services despite the
March 13, 2013 letter from her husband to the organization

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No. 21-3267 11
attempting to arrange treatment. R. 374. And it seems unlikely
that she did, given her testimony that she did not attend any
therapy for at least a year and a half after her release from
prison and did not like to attend group therapy. And alt-
hough Zarzecki’s brief states that she was diagnosed with ag-
oraphobia, she did not submit a single piece of medical evi-
dence reflecting this diagnosis. In short, Zarzecki has ap-
pealed because “the Board of Immigration Appeals erred
when it failed to properly consider the expert medical evi-
dence,” (Zarzecki Brief at 5) but she does not tell us what ex-
pert medical evidence in the record the Board failed to con-
sider.
In an effort to be exceptionally generous to Zarzecki, we
could interpret her claim that the Board failed to consider ex-
pert medical evidence as a claim that the Board failed to con-
sider any of her own self-reports about her mental health and
treatment.1 But, in fact, both the immigration judge and the
Board did consider this evidence. The immigration judge con-
sidered her unverified evidence that she was hospitalized for
1 An immigrant’s own testimony indeed can be sufficient to sustain
an applicant’s burden without corroboration. See 8 U.S.C. §1158 (b)(B)(ii).
“Where the trier of fact determines that the applicant should provide evi-
dence that corroborates otherwise credible testimony, such evidence must
be provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.” Id. In this case, it would have been rea-
sonable for the immigration judge to expect that Zarzecki would have rec-
ords of her health diagnoses and treatment because both those things
would have been recent and they occurred within the United States where
health records would have been readily obtainable. In any event, the im-
migration judge and Board considered Zarzecki’s own testimony about
her mental health, but ultimately concluded nevertheless that she did not
adequately explain how her “mental health constitut[ed] an equity that
weigh[ed] in favor of an exercise of discretion.” R. 4.

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12 No. 21-3267
three weeks for depression, that she had been diagnosed with
depression at age 17 while in Poland, and that she had been
prescribed Prozac. He also accepted her unverified and un-
supported allegation that she attended group counseling and
individual therapy. The Board, in turn, considered her claim
that the immigration judge failed to adequately consider her
mental health issues. The Board noted that it was stymied in
any attempt to consider those claims further, as Zarzecki did
not point to any particular testimony or documentary evi-
dence relating to her mental health that the immigration
judge disregarded or explain how the respondent’s mental
health “constitute[d] an equity that weigh[ed] in favor of an
exercise of discretion.” R. 4.
Zarzecki also claims that the Board failed to review the im-
migration judge’s decision de novo. Indeed, applying the in-
correct standard of review would constitute legal error.
F.J.A.P. v. Garland, 94 F.4th 620, 638 (7th Cir. 2024). It is hard
to know, however, with what Zarzecki finds fault. She com-
plains that the Board did not apply de novo review, but in the
next sentence argues that the Board “substitute[d] its discre-
tion in areas requiring legal and factual precision.” Zarzecki
Brief at 17. Of course, de novo review means that the Board
would consider Zarzecki’s case anew—which, in a case about
discretion, would mean applying its discretion inde-
pendently. See 8 C.F.R. §1003.1(d)(3)(ii). Zarzecki does not of-
fer any citations to this court for the appropriate standard of
review when the Board reviews decisions of the immigration
judge (and her short appendix is missing the last page of the
Board’s opinion, making our review more cumbersome still).
Despite Zarzecki’s claims that the Board should consider
“both facts and legal interpretations” de novo (Zarzecki Brief
at 17), the Board reviews factual findings only for clear error

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No. 21-3267 13
and not de novo. F.J.A.P., 94 F.4th at 638; 8 C.F.R.
§1003.1(d)(3)(i). This is a highly deferential standard and
means that the Board’s role was to review the immigration
judge’s findings about Zarzecki’s medical evidence for clear
error only. The Board reviews all other issues, including
“questions of law, discretion, and judgment” de novo. 8
C.F.R. §1003.1(d)(3)(ii). Consequently, “[w]hether an alien is
entitled to an adjustment of status is a question of discretion
over which the BIA exercises de novo review.” Wood v.
Mukasey, 516 F.3d 564, 569 (7th Cir. 2008) (citing 8 U.S.C.
§1255(a)). It may not, however, engage in fact-finding to do
so.
Contrary to Zarzecki’s allegations, the Board not only
stated the proper standard of review, but also applied it ap-
propriately. The Board addressed the key factual findings
made by the immigration judge, and then used those findings
to conduct its own consideration of whether Zarzecki was en-
titled to discretionary relief. The Board noted the serious na-
ture of Zarzecki’s conviction for aggravated driving under the
influence of alcohol and noted that the circumstances leading
to the accident were particularly egregious. The Board then
weighed the egregiousness of the harm against the counter-
vailing equities in favor of adjustment—such as Zarzecki’s
“family ties, particularly her United States citizen husband
and adult daughter as well as her long residence in the United
States since 1989… [and] separation from her family and fi-
nancial difficulties that accompany removal to a country she
had not resided in for over 30 years.” R. 4. After considering
all of the factors, the Board then concluded that Zarzecki
“ha[d] not demonstrated unusual or outstanding equities that
outweigh the adverse factors present here.” Id.

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14 No. 21-3267
The Board “is not required to ‘write an exegesis on every
contention’ in a particular case, it must nonetheless ‘consider
the issues raised and announce its decision in terms sufficient
to enable a reviewing court to perceive that it has heard and
thought and not merely reacted.’” Guerra Rocha v. Barr, 951
F.3d 848, 853 (7th Cir. 2020) (quoting Mansour v. I.N.S., 230 F.3d
902, 908 (7th Cir. 2000)). The Board sufficiently met its obliga-
tions here and applied the proper standard of review.
In sum, both the immigration judge and Board considered
and weighed the factors Zarzecki presented in mitigation,
with the Board applying the proper standard of review. The
agency did not commit any legal or constitutional error. We
therefore lack jurisdiction to review such discretionary judg-
ments pursuant to 8 U.S.C. §1252(a)(2).
Accordingly, the petition for review is DISMISSED for
lack of jurisdiction.

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