* The Clerk of Court is directed to consolidate these appeals. 

18-1442 (L) 

Kolodziejczyk v. Barr 

BIA 

A 098 692 668 

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 11th day of March, two thousand twenty. 

PRESENT: 

PETER W. HALL,

SUSAN L. CARNEY, 

JOSEPH F. BIANCO,

Circuit Judges. 

_____________________________________ 

TOMASZ KOLODZIEJCZYK, 

 Petitioner, 

v. 18-1442 (L), 

 19-911 (Con)* 

 NAC 

WILLIAM P. BARR, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Gail A. Dulay, Esq., Los Angeles, 

CA. 
2

FOR RESPONDENT: Tracie N. Jones, Trial Attorney; 

Cindy S. Ferrier, Assistant 

Director; Joseph H. Hunt, 

Assistant Attorney General, United 

States Department of Justice, 

Washington, DC. 

UPON DUE CONSIDERATION of these petitions for review of 

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

ORDERED, ADJUDGED, AND DECREED that the petitions for review 

are DENIED. 

 Petitioner Tomasz Kolodziejczyk, a native and citizen of 

Poland, seeks review of a May 9, 2018 decision of the BIA 

denying his motion to reopen his removal proceedings and a 

March 14, 2019 decision of the BIA denying his motion to 

reopen his removal proceedings or reconsider the prior denial 

of reopening. In re Tomasz Kolodziejczyk, No. A 098 692 668 

(B.I.A. May 9, 2018 & Mar. 14, 2019). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case. 

 We review the agency’s denial of motions to reopen and 

reconsider for abuse of discretion. See Jian Hui Shao v. 

Mukasey, 546 F.3d 138, 168–69, 173 (2d Cir. 2008). “An abuse 

of discretion may be found in those circumstances where the 

[BIA’s] decision provides no rational explanation, 
3

inexplicably departs from established policies, is devoid of 

any reasoning, or contains only summary or conclusory 

statements; that is to say, where the [BIA] has acted in an 

arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t 

of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations 

omitted). 

 Reopening 

 With certain exceptions inapplicable here, an alien 

seeking to reopen proceedings may file only one motion to 

reopen and must do so no later than 90 days after the date on 

which the final administrative decision was rendered. 

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). 

Kolodziejczyk’s December 2017 and July 2018 motions to reopen 

were untimely and number-barred because they were his second 

and third motions to reopen and he filed them more than four 

years after 2013, when the BIA affirmed the IJ’s removal 

order. 

 Compliance with these time and number limitations may be 

excused based on ineffective assistance of counsel. Rashid 

v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). To obtain 

reopening on this basis, however, a movant must generally 

comply with the procedural requirements set out in Matter of 
4

Lozada, 19 I. & N. Dec. 637 (BIA 1988), and must show that 

counsel’s actions were unreasonable and caused the movant 

prejudice. See Debeatham v. Holder, 602 F.3d 481, 484–85 (2d 

Cir. 2010); Rashid, 533 F.3d at 131. 

 Because Kolodziejczyk failed to substantially comply 

with Lozada, we conclude that the agency did not abuse its 

discretion in denying his second motion to reopen. Among 

other things, Lozada requires the movant to submit “proof 

that the [movant] notified former counsel of the allegations 

of ineffective assistance and allowed counsel an opportunity 

to respond.” Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005) 

(quoting Esposito v. INS, 987 F.2d 108, 110–11 (2d Cir. 

1993)). “[I]f a violation of ethical or legal 

responsibilities is claimed, [the movant must also submit] a 

statement as to whether the [movant] filed a complaint with 

any disciplinary authority . . . and, if a complaint was not 

filed, an explanation for not doing so.” Id. 

 The BIA reasonably concluded that Kolodziejczyk did not 

substantially comply with Lozada because he did not show that 

he provided his former counsel sufficient opportunity to 

respond and he did not file a complaint with the appropriate 

disciplinary authorities. Kolodziejczyk now argues that he 
5

could not wait for a response from his former counsel because 

he was scheduled for removal when he filed his motion. This 

argument is unavailing because nothing in the record suggests 

that he was prevented from contacting counsel sooner. 

Kolodziejczyk does not dispute the BIA’s conclusion that his 

failure to file a disciplinary complaint alone precludes him 

from establishing substantial compliance. Moreover, his 

arguments to the agency regarding his decision to defer filing 

such a complaint suggest that he was not sure whether his 

counsel’s conduct was in fact deficient. 

 Although we have found on occasion substantial compliance 

with Lozada when the facts supporting the ineffective 

assistance claim were “clear on the face of the record,” Yi 

Long Yang v. Gonzales, 478 F.3d 133, 143 (2d Cir. 2007), that 

is not the case here. To the extent that Kolodziejczyk argues 

that counsel was ineffective for failing to file a motion to 

remand in the BIA, his argument is unavailing because he was 

represented by a different and unrelated attorney in that BIA 

appeal. His argument that counsel was ineffective for 

failing to advise him to file such a motion also fails. 

Kolodziejczyk is correct that he could have moved to remand 

proceedings on the basis of his second wife’s pending 
6

immediate-relative visa petition (before the agency’s 

approval of that petition) and without moving jointly with 

the Department of Homeland Security (“DHS”). In re VelardePacheco, 23 I. & N. Dec. 253, 256 (BIA 2002); see Melnitsenko 

v. Mukasey, 517 F.3d 42, 49 (2d Cir. 2008) (under VelardePacheco, a motion to reopen to pursue adjustment may be 

granted prior to the adjudication of the visa petition filed 

on the applicant’s behalf); Matter of Lamus-Pava, 25 I. & N. 

Dec. 61, 64–65 (BIA 2009) (Velarde-Pacheco “does not grant 

the DHS ‘veto’ power over an otherwise approvable Velarde

motion”). The grant of such a motion is a matter of BIA 

discretion, however. It requires “clear and convincing 

evidence indicating a strong likelihood that the [movant’s] 

marriage is bona fide,” and it may take DHS opposition to the 

motion into account. In re Velarde-Pacheco, 23 I. & N. Dec. 

at 256; Matter of Lamus-Pava, 25 I. & N. Dec. at 64–65. Given 

these standards, the BIA did not abuse its discretion in 

concluding that a reasonable attorney could have made a 

strategic decision to wait to take further action until the 

visa petition was approved and to attempt then to obtain a 

DHS stipulation to reopening in light of Kolodziejczyk’s 
7

prior unsuccessful attempt to adjust status.1 

 For similar reasons, the BIA did not abuse its discretion 

in denying Kolodziejczyk’s third motion to reopen for failure 

to establish that he was prejudiced by his prior counsel’s 

actions. To establish the required prejudice, a movant must 

show that “the outcome of his removal proceedings would have 

been any different” had counsel acted differently. 

Debeatham, 602 F.3d at 486. Kolodziejczyk argues that he 

would have been able to present clear and convincing evidence 

that his second marriage was bona fide, as required by 

Velarde-Pacheco. Even if this were the case, in light of the 

procedural history of this case, we cannot say that the agency 

abused its discretion in finding it “speculative” that 

Kolodziejczyk would have received a favorable discretionary 

decision by the BIA on a motion to reopen his case before the 

approval of his wife’s visa petition. 

 Reconsideration 

1 Contrary to Kolodziejczyk’s argument, the agency did not 

draw an improper adverse inference from his prior marriage. 

Instead, the agency identified the history of his prior 

application to adjust status as one reason that counsel might 

have determined that Kolodziejczyk would obtain a strategic 

benefit by waiting for his visa petition to be approved and 

obtaining a stipulation from DHS before moving to reopen. 
8

 Finally, the BIA did not abuse its discretion in denying 

reconsideration of its denial of Kolodziejczyk’s second 

motion to reopen. A motion for reconsideration must specify 

errors of fact or law in the BIA’s decision and be supported 

by pertinent authority. The BIA does not abuse its 

discretion by denying a motion to reconsider that merely 

repeats arguments previously rejected by the agency. See 8 

C.F.R. § 1003.2(b)(1); Jin Ming Liu v. Gonzales, 439 F.3d 

109, 111 (2d Cir. 2006); Ke Zhen Zhao, 265 F.3d at 90. As 

discussed above, to the extent that this motion requested 

reopening, the BIA did not abuse its discretion by denying 

the motion for failure to show prejudice arising from the 

alleged ineffective assistance. 

 For the foregoing reasons, the petitions for review are 

DENIED. All pending motions and applications are DENIED and 

stays VACATED. 

FOR THE COURT: 

 Catherine O’Hagan Wolfe, 

Clerk of Court