602 F.3d 103 (2nd Cir. 2010), 09-0558-ag, Shabaj v. Holder

Docket Nº:09-0558-ag.
Citation:602 F.3d 103
Opinion Judge:DENNIS JACOBS, Chief Judge:
Party Name:Paulin SHABAJ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States of America, Respondent.
Attorney:Michael P. Diraimondo (Marialania L. Masi, Stacy A. Huber on the brief), DiRaimondo & Masi, LLP, Melville, NY, for Petitioner. Andrew B. Insenga (Daniel E. Goldman, Tony West, on the brief), U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.
Judge Panel:Before: JACOBS, Chief Judge, SACK and HALL, Circuit Judges.
Case Date:April 12, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 103

602 F.3d 103 (2nd Cir. 2010)

Paulin SHABAJ, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General of the United States of America, Respondent.

No. 09-0558-ag.

United States Court of Appeals, Second Circuit.

April 12, 2010

Argued: Jan. 11, 2010.

Page 104

Michael P. Diraimondo (Marialania L. Masi, Stacy A. Huber on the brief), DiRaimondo & Masi, LLP, Melville, NY, for Petitioner.

Andrew B. Insenga (Daniel E. Goldman, Tony West, on the brief), U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondent.

Before: JACOBS, Chief Judge, SACK and HALL, Circuit Judges.

DENNIS JACOBS, Chief Judge:

Paulin Shabaj petitions for review of a January 26, 2009 removal order of the Department of Homeland Security (" DHS" ). Shabaj, a native and citizen of Albania, arrived in the United States in November 2000 bearing a false passport of Italy, whose citizens are eligible to enter the United States under the Visa Waiver Program that allows individuals from certain nations to visit the United States without a visa for up to 90 days. See 8 U.S.C. § 1187(a). On the flight here he signed a form I-94W Nonimmigrant Visa Waiver Arrival/Departure Form using the name on his fake Italian passport. Form I-94W specifies that in exchange for the benefit of entering under the expedited process of the Visa Waiver Program, the signing alien agrees to waive any right to challenge removability except by way of an asylum claim.

When Shabaj was detained upon arrival, he sought asylum and was referred to an Immigration Judge for an asylum-only

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proceeding. See 8 U.S.C. § 1187(b)(2). Asylum was denied on October 3, 2001; Shabaj's appeal was denied by the BIA on February 25, 2003; and his motions to reopen before the BIA were denied on December 21, 2004 and March 10, 2005.

Within four months of the March 10 order, Shabaj married a United States citizen, and twice applied for status adjustments and waivers of inadmissibility; the applications were denied. Upon the denial of the second application on January 26, 2009, a final order of removal was issued pursuant to 8 C.F.R. § 217.4(b).1

" We review the agency's factual findings under the substantial evidence standard, treating them as ‘ conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Bah v. Mukasey, 529 F.3d 99, 110 (2d...

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