Bradley v. Attorney General of US

• Decision Date: 22 April 2010
• Docket Number: No. 08-4184.,08-4184.
• Citation: 603 F.3d 235
• Parties: Heathcliffe John BRADLEY, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

603 F.3d 235

Heathcliffe John BRADLEY, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent.

No. 08-4184.

United States Court of Appeals, Third Circuit.

Argued March 11, 2010.

Filed April 22, 2010.

Haroutyun Asatrian, Esq. (Argued), Strasser Asatrian, LLC, Newark, NJ, 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, Washington, DC, for Respondent.

Before: AMBRO, SMITH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

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, 87 S.Ct. 483, 17 L.Ed.2d 362 (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

I.

Bradley arrived in the United States on August 28, 1996 without a valid non-immigrant visa, but was admitted 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,

upon 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 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 I130 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 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). 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 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, 87 S.Ct. 483, 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 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 "the 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 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...