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Vasconcelos v. Lynch

United States Court of Appeals, Second Circuit

November 2, 2016

Rui Gilberto Enes de Vasconcelos, Petitioner,
v.
Loretta E. Lynch, United States Attorney General, Respondent.

          Argued: May 18, 2016

         Petition for Review of a Final Order of the Department of Homeland Security

         Rui Gilberto Enes de Vasconcelos, a citizen of Portugal and native of Angola, petitions for review of a removal order issued by the Department of Homeland Security without a hearing on the ground that he waived the right to contest removal by submitting via the Electronic System for Travel Authorization ("ESTA") an application to participate in the Visa Waiver Program ("VWP"), 8 U.S.C. § 1187, and subsequently entering the United States pursuant to the program. The ESTA makes available online the I-94W Nonimmigrant Visa Waiver Arrival/Departure Record Form, which memorializes the terms of the program and contains a certification that the applicant waives any right to a hearing. We are asked to decide whether the government may establish waiver based upon an ESTA record showing that a petitioner submitted an ESTA application and thereby certified waiver, or whether, as Vasconcelos urges, it must produce a physically signed I-94W. We hold that an ESTA record is sufficient to establish waiver. Because the administrative record supports the agency's finding that Vasconcelos waived his right to a hearing by submitting an ESTA application and entering the United States pursuant to the VWP, the petition is DENIED.

          Paul B. Grotas, New York, N.Y., for Petitioner.

          Jamie Dowd (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Anthony P. Nicastro, Acting Assistant Director, Tracey N. McDonald, Trial Attorney, Office of Immigration Litigation, Department of Justice, Washington, D.C., on the brief), for Respondent.

          Before: Kearse, Jacobs, and Parker, Circuit Judges.

          BARRINGTON D. PARKER, CIRCUIT JUDGE:

         The Visa Waiver Program ("VWP") allows eligible citizens and nationals of designated countries to visit the United States for up to ninety days without obtaining a visa, provided that they agree to waive any right to contest removal other than by seeking asylum. 8 U.S.C. § 1187(a), (b)(2). Prior to 2009, the Department of Homeland Security ("DHS") required applicants to complete and physically sign the I-94W Nonimmigrant Visa Waiver Arrival/Departure Record Form, which memorializes the terms of the program and contains a certification that the applicant waives any right to a hearing. In response to legislation designed to modernize and strengthen the security of the VWP, DHS developed the Electronic System for Travel Authorization ("ESTA"), which makes the I-94W available online and enables applicants to receive an automated determination of eligibility in advance of travel.

         Rui Gilberto Enes de Vasconcelos was ordered removed by DHS without the benefit of a hearing on the ground that he waived the right to challenge removal by submitting an ESTA application and subsequently entering the country pursuant to the VWP. We are asked to decide whether the government may establish waiver based upon an ESTA record showing that a petitioner submitted an ESTA application and thereby certified waiver, or whether, as Vasconcelos urges, it must produce a physically signed I-94W. We hold that an ESTA record is sufficient evidence of waiver. Because the administrative record supports the agency's finding that Vasconcelos waived his right to a hearing by submitting an ESTA application and entering the United States pursuant to the VWP, the petition is DENIED.

         BACKGROUND

         Vasconcelos is a citizen of Portugal and native of Angola who has resided in the United States since 1989. He last entered the country on June 25, 2012 at the port-of-entry at Champlain, New York on the Canada-United States border. Although the circumstances of his admission are disputed, an ESTA computer- generated record indicates that, approximately two months earlier, he submitted via the ESTA an application to participate in the VWP, in which he provided biographical, passport, and other information necessary to determine his eligibility. The ESTA record also contains an "N" notation next to the field "Third Party Indicator" and a "Y" notation next to the field "Waived Rights, " reflecting that Vasconcelos personally filled out and submitted the form and certified that, by participating in the program, he waived any right to challenge removal except by seeking asylum. Admin. R. at 3.

         In October 2014, while incarcerated at the Nassau County Correctional Center in East Meadow, New York for failing to pay child support, Vasconcelos was interviewed by an immigration officer. In connection with the interview, he submitted a sworn affidavit acknowledging that he had last entered the United States in June 2012 at the "New York/Canadian border, by bus, " using a "Portuguese passport." Admin. R. at 14. An "I-94 Arrival Record"confirmed that he had entered the country on June 25, 2012 as a "Visa Waiver/Tourist (WT)" with an admission expiration date of September 23, 2012. Admin. R. at 44. Based upon this information, the immigration officer concluded that Vasconcelos had entered the United States at Champlain, New York on June 25, 2012 "as a non-immigrant Waiver Tourist (WT) under the Visa Waiver Program (VWP) for a temporary period not to exceed September 23, 2012" and was removable for failing to depart by that date. Admin. R. at 7. On March 27, 2015, Vasconcelos was served with an arrest warrant and order of removal that reiterated the immigration officer's findings and noted that he had "waived [his] right to contest any action for removal, except to apply for asylum, having applied for admission under [the VWP]." Admin. R. at 12. Vasconcelos timely petitioned for review.

         DISCUSSION

         We have jurisdiction over final orders of removal, 8 U.S.C. § 1252(a)(1), and may review such orders issued pursuant to § 1187 for the purpose of determining whether the VWP's statutory criteria have been satisfied, see, e.g., Gjerjaj v. Holder, 691 F.3d 288, 292-93 (2d Cir. 2012). We review the agency's factual findings for substantial evidence and will set them aside only if "any reasonable adjudicator would be compelled to conclude to the contrary." Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008) (quoting 8 U.S.C. ยง 1252(b)(4)(B)). Our ...


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