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 theftrelated convictions, which are considered crimes involving 

moral turpitude under immigration law. While detained and 

awaiting removal, Wojciechowicz obtained a pardon from Illinois 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 violation 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 Governor Pritzker’s pardon should have made him retroactively admissible to the United States in 2019. But the Immigration and 

Nationality Act is clear that a pardon does not make an otherwise inadmissible noncitizen admissible, even if a pardon 

can save a resident noncitizen from being removed. And 

Wojciechowicz identifies no other legal or constitutional errors that would give us jurisdiction to review the Board’s decision. 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 installing 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 sentenced 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 convictions, 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 Immigration and Customs Enforcement detained Wojciechowicz

and initiated proceedings to remove him from the United 

States. Although he remained in the country while those proceedings were ongoing, under the (somewhat counterintuitive) terminology of immigration law he was never “admitted” 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 affirmed 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 received a pardon from Governor Pritzker for his 2011 convictions. 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 spontereopening. See 8 C.F.R. § 1003.2(a) (2002) (authorizing 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 violation 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 motion to reopen. The Board explained that his motion was timebarred: 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 discretion 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 convictions admittedly being for crimes involving moral turpitude.

The following month Wojciechowicz filed a petition for review in our court. He also returned to the Board with a motion 

to reconsider, where he developed his pardon-related arguments 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 Congress 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 regulation, 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 alternative contention—that the pardon he received voided his convictions altogether—because he had already admitted to committing and being convicted of crimes involving moral turpitude. All of this led the Board to deny Wojciechowicz’s motion 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 proceedings from his efforts to convince the Board to reopen proceedings on its own motion. That is because Congress has limited 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 jurisdiction to review the Board’s decision whether to exercise its 

discretion to sua sponte reopen proceedings unless that decision “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 reopen 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 administrative 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 discretion by denying Wojciechowicz’s motion to reopen as untimely. 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 committed legal error in denying a request for sua sponte reopening. 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 distinction between them. Section 1182 defines which noncitizens 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 present here.

Both § 1182 and § 1227 include provisions for noncitizens 

who have been convicted of crimes involving moral turpitude. 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 depending 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 convictions came. And once Wojciechowicz left the country (to attend 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 sections 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 apply in the case of [a noncitizen] with respect to a criminal conviction if the [noncitizen] subsequent to the criminal conviction 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 Immigration 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 determinations of admissibility under § 1182(a)(2)(A)(i)(I). Nor does 

the INA include a pardon waiver for determinations of removability 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 government takes the opposite view, asserting that a pardon cannot 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 involving moral turpitude cannot make an otherwise inadmissible noncitizen admissible. The Supreme Court has instructed that we should “assume that Congress ‘acts intentionally 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 otherwise inadmissible noncitizens.

The 1990 amendments undercut Wojciechowicz’s arguments 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 legislative 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 examination 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 Governor 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 interpretation 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 structure 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 involving moral turpitude or “admit[ted] [to] having committed” such a crime. 8 U.S.C. § 1182(a)(2)(A)(i). So even if Governor Pritzker’s pardon had the effect of wholly erasing 

Wojciechowicz’s convictions from the record books—a proposition we are skeptical of, as Wojciechowicz cites no legal authority in support of his position—he would still be inadmissible 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 noncitizen against removal proceedings, it cannot render an otherwise 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 concerns 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 jurisdiction 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 admission to the United States differently from noncitizens already present here. See Klementanovsky, 501 F.3d at 791. The 

Supreme Court has recognized that these classes of noncitizens 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 others. For one, Congress could have reasonably viewed a pardon as evidence that a noncitizen has, despite having a particular criminal history, meaningfully integrated into their 

community. Congress therefore could have sought to encourage that behavior by permitting the noncitizen to remain but 

not necessarily leave and return at will. Another possible reason, 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 decision 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 protection 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 severe and lasting consequences for misconduct—not just for 

noncitizens but for their families as well. And it is very difficult to read this opinion and not react with frustration and 

disappointment to ICE’s removal of Wojciechowicz in violation 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 obligation 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.