Bradley v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4184

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HEATHCLIFFE JOHN BRADLEY,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

_____________

On Petition for Review of an Administrative Order of

Removal of the Department of Homeland Security

Ordering Removal pursuant to 8 U.S.C. § 1187

(A87-074-865)

_____________

Argued March 11, 2010

_____________

Before: AMBRO, SMITH and ALDISERT, Circuit Judges

(Filed: April 22, 2010)

Haroutyun Asatrian, Esq. (Argued)

Strasser Asatrian, LLC

744 Broad Street, 16th Floor

Newark, NJ 07102

Counsel for Petitioner

Michael F. Hertz

Acting Assistant Attorney General

Civil Division

Carl H. McIntyre, Jr.

Assistant Director

Office of Immigration Litigation

Gary J. Newkirk, Esq. (Argued)

Stephen F. Day, Esq.

Justin R. Markel, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

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OPINION OF THE COURT

_____________

2

ALDISERT, Circuit Judge.

Petitioner Heathcliffe John Bradley, a citizen and

national of New Zealand, seeks review of a final removal

order of the Department of Homeland Security, Immigration

and Customs Enforcement (“the Department”). Bradley

contends that the Department’s removal order is void under

Woodby v. INS, 385 U.S. 276, 286 (1966), because the record

lacks “clear, unequivocal, and convincing evidence” that he

waived his right to contest his removal under the Visa Waiver

Program (“VWP”), 8 U.S.C. § 1187. Bradley additionally

contends that he did not validly waive his right to contest his

removal under the VWP because his waiver was not

“knowing and voluntary.” Finally, Bradley contends that,

notwithstanding any VWP waiver, he may renew his

application for a marriage-based adjustment of status before

an immigration judge. See 8 U.S.C. § 1255(c)(4). For the

reasons that follow, we will deny his petition.1

1

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1),

which permits us to review final orders of removal. Although

some courts have suggested that 8 U.S.C. § 1187(b)(2) narrows

our jurisdiction to review removal orders involving VWP

entrants, see, e.g., Lacey v. Gonzales, 499 F.3d 514, 519 (6th

Cir. 2007), we view § 1187(b)(2) as a substantive, rather than a

jurisdictional, bar to a VWP entrant’s ability to obtain relief

from removal. In particular, § 1187(b)(2) does not appear to

abrogate 8 U.S.C. § 1252(a)(2)(D), which provides that

“[n]othing . . . in any other provision of this Act (other than this

3

I.

Bradley arrived in the United States on August 28,

1996 without a valid non-immigrant visa, but was admitted

section) which limits or eliminates judicial review, shall be

construed as precluding review of constitutional claims or

questions of law raised upon a petition for review filed with an

appropriate court of appeals.” We are further persuaded that §

1187(b)(2) is not jurisdiction-stripping because it does not

clearly and explicitly deprive federal courts of jurisdiction. See

Calcano-Martinez v. INS, 533 U.S. 348, 351-352 (2001)

(concluding that “Congress has not spoken with sufficient

clarity to strip the district courts of jurisdiction to hear habeas

petitions raising” claims not reviewable by petitions for direct

review). Compare 8 U.S.C. § 1187(b)(2) (providing that a VWP

entrant must “waive any right . . . to contest . . . any action for

removal”), with, e.g., 8 U.S.C. § 1158(a)(3) (“No court shall

have jurisdiction to review . . . .”), 8 U.S.C. § 1252(a)(2)(A),(B)

(same), and 8 U.S.C. § 1252(a)(5) (“For purposes of this Act, in

every provision that limits or eliminates judicial review or

jurisdiction to review, the terms ‘judicial review’ and

‘jurisdiction to review’ include habeas corpus review . . . and

review pursuant to any other provision of law (statutory or

nonstatutory).”). In view of the “strong presumption in favor of

judicial review of administrative action,” INS v. St. Cyr, 533

U.S. 289, 298 (2001), we do not believe that § 1187(b)(2)

affects our jurisdiction to consider Bradley’s claims. As we will

explain, however, § 1187(b)(2) has a significant effect on

Bradley’s ability to pursue substantive relief from removal.

4

under the VWP. Bradley represents that he was intoxicated

when he arrived, and he claims to have little recollection of

his admission. Nevertheless, Bradley’s declaration establishes

that, after his arrival, he signed a form, presented that form to

a customs officer, and was admitted into the United States.

According to Bradley,

[u]pon my arrival at John F. Kennedy

International Airport in New York, I was given

a form to complete, which I vaguely recall

completing or even signing for that matter. . . . I

handed the form to the Custom’s agent, who

waived me through after taking a part of my

form, without any questions.

(Bradley Decl. ¶¶ 18, 20 (errors in original).) According to his

Form I-94W Departure Record, Bradley was authorized to

remain in the United States for the 90-day period ending

November 27, 1996. (App.2 8.) It is undisputed that Bradley

remained in the United States beyond his authorized stay, and

that he remains here still.

On July 29, 2006, Bradley married Cheryl Losee, a

United States citizen. In December 2007 and with the

assistance of an attorney, Bradley and Losee applied to United

2

“App.” refers to the petitioner’s appendix, while “Resp’t

App.” refers to the respondent’s appendix.

5

States Citizenship and Immigration Services to adjust

Bradley’s status to that of a lawful permanent resident. In

conjunction with that application, Bradley’s wife filed an I-

130 immediate-relative visa petition, a prerequisite to

obtaining a marriage-based adjustment of status. That petition

was denied pursuant to 8 C.F.R. § 103.2(b)(13) when Bradley

and Losee failed to appear for a scheduled interview.

On October 8, 2008, Bradley was arrested and ordered

removed, pursuant to 8 U.S.C. § 1187(b). On October 14,

2008, Bradley filed a Petition for Review in this Court and

moved for a stay of removal. On November 10, 2008, we

stayed Bradley’s removal order, and on November 14, 2008,

Bradley was released from incarceration, pending our review.

II.

Before we address Bradley’s contentions, we first

review the purpose and role of the VWP within our nation’s

body of immigration law.

Congress established the VWP “‘to facilitate

international travel and promote the more effective use of the

resources of affected government agencies while not posing a

threat to the welfare, health, safety, and security of the United

States.’” Nose v. Att’y Gen., 993 F.2d 75, 77 n.2 (5th Cir.

1993) (quoting 53 Fed. Reg. 24,898 (1988)). Under the VWP,

a qualifying visitor may enter the United States without

6

obtaining a visa, so long as a variety of statutory and

regulatory requirements are met. Among other things, a visitor

seeking admission under the VWP must execute certain

immigration forms, present a passport from a qualifying

country, and possess a round-trip ticket. 8 U.S.C. § 1187(a).

Once admitted under the VWP, a visitor may remain in the

United States for 90 days. 8 U.S.C. § 1187(a)(1).

Although the VWP affords visitor aliens with great

flexibility and convenience, those benefits come at a cost.

Most significantly, a VWP visitor must waive his or her right

to contest the government’s admissibility determinations and

removal actions, except that the alien may contest removal

actions on the basis of asylum.3 8 U.S.C. § 1187(a)-(b).

3

The VWP’s waiver provision states:

An alien may not be provided a waiver under the

program unless the alien has waived any right–

(1) to review or appeal under this Act of an

immigration officer’s determination as to the

admissibility of the alien at the port of entry into

the United States, or

(2) to contest, other than on the basis of an

application for asylum, any action for removal

against the alien.

7

Accordingly, a VWP applicant must, prior to admission,

present U.S. officers with a “completed, signed Form I-94W,

Nonimmigrant Visa Waiver Arrival/Departure Form,” 8

C.F.R. § 217.2(b)(1), expressly waiving, inter alia, any “right .

. . to contest, other than on the basis of an application for

asylum, any action for removal of the alien.” 8 U.S.C. §

1187(b)(2). This requirement is ironclad. Indeed, a VWP

applicant “may not be provided a waiver under the program

unless” the alien has signed a VWP waiver, id., and an

applicant who does not sign will be refused admission and

removed, see 8 C.F.R. § 217.4(a)(1).

For a VWP entrant, the effects of this no-contest

provision are severe. A VWP entrant waives the right to assert

any non-asylum objection to his removal. 8 U.S.C. §

1187(b)(2). Additionally, unlike the ordinary removal case, a

VWP entrant’s removal “shall be determined by the district

director who has jurisdiction over the place where the alien is

found, and shall be effected without referral of the alien to an

immigration judge for a determination of deportability.” 8

C.F.R. § 217.4(b). But as the Court of Appeals for the Ninth

Circuit has recognized, given the ease and convenience with

which a VWP visitor may enter the United States, the VWP’s

“linchpin . . . is the waiver, which assures that a person who

comes here with a VWP visa will leave on time and will not

raise a host of legal and factual claims to impede his removal

8 U.S.C. § 1187(b).

8

if he overstays.” Handa v. Clark, 401 F.3d 1129, 1135 (9th

Cir. 2005). With these precepts in mind, we turn to Bradley’s

challenge to his VWP waiver.

III.

We first address Bradley’s contention that the

Department’s removal order is invalid under Woodby v. INS,

385 U.S. at 286, because it was entered without “clear,

unequivocal, and convincing evidence” that he waived his due

process right to contest his removal. In particular, Bradley

contends that because his removal order referred to his VWP

waiver, that waiver is a “ground for deportation,” subject to

proof by clear, unequivocal and convincing evidence under

Woodby. He contends that because the Department failed to

produce his signed I-94W form, it has not met its burden of

proof, rendering his removal order invalid. We disagree.

Although we doubt Bradley’s assumption that the

Department must prove his waiver by “clear, unequivocal,

and convincing evidence,” we hold that the Department has

easily met that burden. Bradley admits that he entered the

United States under the VWP, and although his declaration is

vague, he concedes that he signed a form, presented that form

to a customs officer, and was admitted into the United States.

(See Bradley Decl. ¶¶ 18, 20.) Consistent with that account,

the record contains the top portion of a Form I-94W,

Nonimmigrant Visa Waiver Arrival/Departure Form, filled

9

out in handwriting “Bradley, Heathcliffe,” date of birth “07

10 72,” and stamped with Bradley’s admission date of “Nov

27 1996.” (App. 8.) Bradley’s admissions, together with the

documentary evidence, constitute powerful evidence that

Bradley signed a Form I-94W, including a waiver of due

process rights, before he was admitted to the United States.

This evidence becomes nearly irrefutable in view of

the regulations and procedures governing admission under the

VWP. Under the regulations, each VWP applicant must

present a “completed, signed Form I-94W, Nonimmigrant

Visa Waiver Arrival/Departure Form,” 8 C.F.R. §

217.2(b)(1), which contains the VWP waiver (Resp’t App. 1).

During the admission process “[t]he departure record at the

bottom of the form is retained by the alien, while the

immigration official admitting the alien keeps the top portion,

including the signed waiver.” (Resp’t Br. 14 n.8.)

Significantly, “an alien may not be provided a waiver under

the program unless the alien has waived any right . . . to

contest . . . any action for removal,” 8 U.S.C. § 1187(b)(2),

and any alien who does not sign the VWP waiver will be

refused admission, see 8 C.F.R. § 217.4(a)(1). Because

“agency action . . . is entitled to a presumption of regularity,”

McLeod v. INS, 802 F.2d 89, 95 (3d Cir. 1986), we presume

that the Department admitted Bradley under the VWP only

after collecting the top portion of his completed I-94W form,

including his signed VWP waiver. Although this presumption

is rebuttable, id., Bradley has adduced no evidence that the

10

Department admitted him in violation of its own regulations,

and in fact, his declaration is entirely consistent with a routine

admission under the VWP. We conclude, therefore, that the

evidence is more than sufficient to prove Bradley signed a

VWP waiver, even assuming that waiver must be proven by

“clear, unequivocal, and convincing evidence.” As we

suggested at oral argument, this contention is underwhelming.

IV.

Bradley next contends that his VWP waiver is invalid

because it was not “knowing and voluntary,” and he urges us

to adopt the “knowing and voluntary” requirement embraced

by the Courts of Appeals for the Fifth and Seventh Circuits.

See Bayo v. Napolitano, 593 F.3d 495, 505 (7th Cir. 2010)

(en banc); Nose v. Att’y Gen., 993 F.2d 75, 79 (5th Cir.

1993). Tracking the reasoning of these decisions, Bradley

argues that, as with other waivers of constitutional rights, a

VWP waiver of due process rights is not constitutionally

enforceable unless it is knowing and voluntary. Bradley

contends that his specific waiver was not knowing and

voluntary because he was intoxicated when he signed it. At

the very least, Bradley contends, he is entitled to adjudicate

the constitutional validity of his waiver before an immigration

judge. We cannot agree.

In all respects, Bradley’s claim amounts to a challenge

of his removal order under the Due Process Clause of the

11

Fifth Amendment, and consequently, he cannot prevail

without “an initial showing of substantial prejudice.” Khan v.

Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (citation and

quotation marks omitted).4 Thus, even assuming without

deciding that Bradley’s VWP waiver must be “knowing and

voluntary,” Bradley cannot invalidate his removal order

unless he can demonstrate he was “substantially prejudiced”

by his allegedly unknowing waiver. He cannot.

Bradley’s prejudice argument is soundly defeated by

the cogent reasoning of the en banc Court of Appeals for the

Seventh Circuit in Bayo v. Napolitano, 593 F.3d 495 (7th Cir.

2010) (en banc), a case factually on all fours with this one.

There the court reconsidered a panel decision granting

petitioner Bayo’s petition for review and ordering the

Department to conduct a hearing to determine whether his

VWP waiver was knowing and voluntary. Id. at 507.

Although the en banc court agreed with the panel’s

conclusion that a VWP waiver must be knowing and

voluntary, it rejected Bayo’s due process claim because he

could not show prejudice. As the court explained,

[h]ad he known what the waiver said, Bayo

would have had two options, either of which

4

See also Khouzam v. Att’y Gen., 549 F.3d 235, 258 (3d Cir.

2008); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)

(stating the rule in terms of “prejudice”).

12

would have led to summary removal. If he had

signed the waiver anyway, knowing full well

what it said, he would be in the same situation

as he is now. If he had refused to sign, he would

have been removed summarily at the border

because he did not have a proper visa. Perhaps

there is a slight chance that after removal, Bayo

could have obtained a visa to come to the

United States, and then he might have settled in

Indiana, met Tatiana Sia, and married her,

allowing him to adjust his status based on

marriage at that time. As Bayo admits in his

brief though, “[i]t is difficult to compare what

might have been with what is.” This is true, and

it is the reason why we find the explanation of

how Bayo might have been harmed too

speculative to support a showing of prejudice.

Id. at 506. Similarly, Bradley cannot show he has been

prejudiced by an unknowing or involuntary waiver because

any harm would be too speculative. The consequence he now

faces – summary removal – is the same consequence he would

have faced had he known of the waiver and refused to sign.

He has failed to demonstrate how his knowledge of the

waiver realistically could have changed this outcome.

Resisting this conclusion, Bradley urges us to focus

our prejudice inquiry not on the time of entry, but on the

13

summary removal resulting from the Department’s

enforcement of his allegedly unknowing waiver. He contends

that his unknowing waiver is prejudicial because it deprives

him of his right to contest his removal on the basis of his

petition for adjustment of status. This argument fails as well.

Bradley’s VWP waiver was an express condition

precedent to his 1996 entry to the United States, and he would

not have been admitted without it. The prejudice of which he

complains – summary removal without a hearing – is a direct

consequence of the VWP’s congressional design and

implementing regulations, and not Bradley’s alleged failure to

comprehend the terms of his VWP visitor status. See 8 C.F.R.

§ 217.4(b) (providing that removal of a VWP entrant “shall be

effected without referral of the alien to an immigration judge

for a determination of deportability”). To prevail on his due

process claim, Bradley must demonstrate substantial prejudice

resulting from the due process violation he has alleged – his

unknowing waiver of constitutional rights. Accordingly,

Bradley must prove that, but for his ignorance of the VWP

waiver, he could otherwise contest his removal on the basis of

his petition for adjustment of status. This, he cannot do. Had

Bradley known the contents of the waiver and refused to sign,

he would be in the same position as he is now – subject to

summary removal without a hearing – and he would not now

be eligible to adjust his status on the basis of his marriage to

Cheryl Losee. As in Bayo, “the explanation of how [Bradley]

might have been harmed [is] too speculative to support a

14

showing of prejudice.” Bayo, 593 F.3d at 506.

Likewise, we reject Bradley’s contention that, under

Khouzam v. Attorney General, 549 F.3d 235, 258 (3d Cir.

2008), we should presume substantial prejudice because

Bradley received no process at all. Our Court held in

Khouzam that a non-VWP petitioner was “inherently” and

“substantially prejudiced” by a “complete absence of any

process,” when the government, without notice or a hearing,

terminated the petitioner’s deferral of removal under the

Convention Against Torture. Id. at 239-240, 258. Distinct

from Bradley, however, the petitioner in Khouzam did not

waive his due process rights, and no statute conditioned his

admission to the United States on an express waiver of these

rights. See id. at 235-260. Although a complete denial of

process may be inherently prejudicial in most cases, we find

no inherent prejudice in the enforcement of an express due

process waiver against an alien who has already received the

benefit of that waiver. Consequently, in the VWP context, we

will require the same showing of “substantial prejudice”

required for other due process challenges to orders of

removal. See Khan, 448 F.3d at 236. Because Bradley cannot

show prejudice, his due process claim does not carry.

V.

Bradley’s final argument is that, even if his waiver is

valid and enforceable, he is nevertheless entitled to pursue a

15

marriage-based adjustment of status under 8 U.S.C. §

1255(c)(4).5 He contends that, because 8 U.S.C. § 1255(c)(4)

permits VWP entrants to adjust their status on the basis of an

“immediate relative” petition,6 a VWP entrant pursuing such

an adjustment is “assimilated to the status of any other alien

who has applied for adjustment of status . . . and is not subject

to the VWP[] no contest-clause.” (Pet’r Br. 33 (citing

Freeman v. Gonzales, 444 F.3d 1031, 1037 (9th Cir. 2006).)

Any other interpretation, he contends, would be illogical and

would undermine congressional intent to make the adjustment

of status remedy available to VWP entrants. Again, he is

wrong.

5

The “adjustment of status” remedy permits the Attorney

General, “in his discretion and under such regulations as he may

prescribe,” to adjust an alien’s status to that of a lawful

permanent resident if “(1) the alien makes an application for

such adjustment, (2) the alien is eligible to receive an immigrant

visa and is admissible to the United States for permanent

residence, and (3) an immigrant visa is immediately available to

him at the time his application is filed.” 8 U.S.C. § 1255(a).

6

More precisely, 8 U.S.C. § 1255(c)(4) generally makes

VWP entrants ineligible for the “adjustment of status” remedy,

but carves out an exception for VWP entrants seeking to adjust

their status on the basis of an immediate-relative petition. The

term “immediate relative” includes the spouse of a U.S. citizen.

See 8 U.S.C. § 1151(b)(2)(A)(I).

16

Bradley’s position has already been rejected by six of

our sister Courts of Appeals, and we now join them in doing

the same.7 As the Court of Appeals for the Seventh Circuit

explained in Bayo,

[a]t first glance, it appears that there is a conflict

between the adjustment-of-status statute, 8

U.S.C. § 1255(c)(4), and the VWP statute, 8

U.S.C. § 1187(b)(2). Upon closer examination,

however, we believe that they can be reconciled.

During the time when a nonimmigrant visitor is

within the VWP’s 90-day window, she may

submit an adjustment-of-status application

based on an immediate relative. An application

submitted at that time would not represent a

challenge to removal. After the visitor overstays

her 90-day visit, however, the effect of the

VWP waiver kicks in, preventing any objection

to removal (except for asylum), including one

based on adjustment of status.

7

See Bayo v. Napolitano, 593 F.3d 495, 507 (7th Cir. 2010)

(en banc); McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir.

2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008)

(narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.

2006)); Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008);

Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt

v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006).

17

Bayo, 593 F.3d at 507. We agree and hold that, although

Bradley was once statutorily eligible under 8 U.S.C. §

1255(c)(4) for the adjustment he now seeks, he may not, after

the expiration of his 90-day stay, adjust his status as a defense

to removal. Bradley’s VWP waiver squarely forecloses him

from contesting his removal on this basis.

Contrary to Bradley’s contention, the decision of the

Ninth Circuit Court of Appeals in Freeman v. Gonzales, 444

F.3d 1031 (9th Cir. 2006), does not compel another result.

Although that case ruled the VWP’s no-contest clause

inapplicable when “a VWP visitor properly files an

adjustment of status application,” id. at 1035, the court

subsequently narrowed that decision to cover only VWP

entrants who petition to adjust their status during their lawful

90-day stay, see Momeni v. Chertoff, 521 F.3d 1094, 1097

(9th Cir. 2008). Thus, after Momeni, a VWP entrant in the

Ninth Circuit may contest her removal on the basis of an

adjustment-of-status petition filed during her lawful 90-day

stay, but as in the other Courts of Appeals, not on the basis of

a petition filed after that period. See Lacey, 499 F.3d at 519

n.6 (emphasizing that Freeman does not apply to adjustment

of status petitions filed by VWP overstays). Thus, even if we

adopted Freeman, that decision would be unavailing to

Bradley, who petitioned for an adjustment of status years

beyond the expiration of his authorized stay. Consequently,

we conclude that Bradley’s VWP waiver forecloses him from

18

contesting his removal via a petition for adjustment of status.8

VI.

For the foregoing reasons, we will deny Bradley’s

petition for review.

8

At oral argument and in a supplemental letter to this Court

under Rule 28(j) of the Federal Rules of Appellate Procedure,

Bradley raised the argument that certain regulations of the

Department of State (namely, the so-called “30/60 day rule”

found at 9 Foreign Affairs Manual 40.63 n.4.7-1 to 4.7-4) render

§ 1255(c)(4)’s adjustment of status provision a nullity for VWP

entrants. This argument did not appear in Bradley’s opening

brief nor in his reply brief, and we deem it waived. See United

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well

settled that an appellant’s failure to identify or argue an issue in

his opening brief constitutes waiver of that issue on appeal.”);

Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004) (noting “[t]he

usual rule, . . . that new theories cannot be raised in a

post-argument Rule 28(j) filing”).

19