Ferry v. Gonzales

Decision Date08 August 2006
Docket NumberNo. 03-9526.,No. 05-1014.,No. 04-9555.,03-9526.,04-9555.,05-1014.
Citation457 F.3d 1117
PartiesCiaran FERRY, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent. Ciaran Ferry, Petitioner-Appellant, v. Scott Webber, Director of Bureau of Inspections and Customs Enforcement, Alberto R. Gonzales, Attorney General of the United States, Tom Ridge, Secretary of the Department of Homeland Security, Eduardo Aguirre, Jr., Acting Director of Bureau of Citizenship and Immigration Services, Michael J. Garcia, Assistant Secretary of Bureau of Immigration and Customs Enforcement, Mike Comfort, District Director of the Immigration and Naturalization Service, James P. Vandello, Immigration Judge, Executive Office for Immigration Review, Respondents-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Eamonn Dornan of Smith, Dornan & Dehn, PC, New York, N.Y. (Jeff Joseph of Joseph Law Firm, PC, Denver, CO; Thomas J. Burke, Jr. of Jones & Keller, Denver, CO, with him on the briefs) for Petitioner-Appellant.

Carl H. McIntyre, Jr., Senior Litigation Counsel, (Peter D. Keisler, Assistant Attorney General; Richard M. Evans, Assistant Director, Office of Immigration Litigation, with him on the briefs), United States Department of Justice, Washington, DC, for Respondents-Appellees.

Before TACHA, Chief Judge, SEYMOUR, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Ciaran Ferry, a native of Northern Ireland, entered the United States in December 2000 under the Visa Waiver Program ("VWP"), 8 U.S.C. § 1187, a program which provides an expedited admission process for aliens from certain countries and authorizes approved aliens to stay in the United States for up to ninety days. The VWP also provides an expedited removal process. Before an alien may enter the United States pursuant to the VWP, the alien is required to sign a waiver of his right to contest removal other than through an application for asylum. § 1187(b)(2). Ferry remained in the United States long after the ninety days he was authorized under the VWP had expired. Eventually, he filed for an adjustment of status with the Department of Homeland Security ("DHS") based on his marriage to a United States Citizen.1 On January 30, 2003, before a decision was rendered on Ferry's application for adjustment of status, the DHS arrested Ferry2 and issued an administrative order of removal on the basis that Ferry had overstayed the ninety days authorized under the VWP. Ferry remained in DHS custody for almost twenty-three months before he was deported to Ireland on December 21, 2004.

The three consolidated appeals we consider here arise from several procedural postures, but they all represent Ferry's efforts to challenge the DHS's removal order and the validity of his prolonged detention, as well as his attempts to obtain asylum, relief under the Convention Against Torture ("CAT"), and, most importantly, an adjustment of status as the spouse of a United States citizen. Specifically, Ferry petitions for review of the DHS district director's order of removal under the VWP, Case No. 03-9526, and petitions for review of the Board of Immigration Appeals' ("BIA") order which affirmed an Immigration Judge's ("IJ") denial of asylum and relief under CAT, as well as the IJ's refusal to consider Ferry's application for adjustment of status on jurisdictional grounds, Case No. 04-9555.3 Ferry also appeals from the district court's denial of his petition for habeas corpus under 28 U.S.C. § 2241, Case No. 05-1014.4 For the reasons set forth below, we deny the petitions for review. As to the district court's denial of habeas relief, we vacate the portion of the district court's decision pertaining to Ferry's challenges to his administrative order of removal, convert that portion of Ferry's habeas petition into a petition for review, and deny the petition. As to the portion of the district court's decision pertaining to Ferry's challenges to his detention, we affirm the district court's dismissal because Ferry's claims are moot.

I. BACKGROUND

Ferry is a native of Northern Ireland and a citizen of both the United Kingdom and the Republic of Ireland. In 1992, Ferry joined the Irish Republican Army ("IRA"). In March 1993, Ferry and two other IRA members drove to Dublin, Ireland allegedly to participate in an IRA training camp. During the trip, members of the Royal Ulster Constabulary ("RUC"), the police force in Northern Ireland from 1922 to 2001, stopped the vehicle and recovered two assault rifles and several rounds of ammunition.

Ferry was charged with conspiracy to commit murder, possession of weapons with intent to endanger life or property, and possession of weapons. He was tried at the Crown Court in Belfast, Northern Ireland, a non-jury court system, and found guilty of the first two charges. The Crown Court imposed concurrent sentences of twenty-two years on the conspiracy charge, and sixteen years on the possession of weapons with intent to endanger life or property charge, to be served at Long Kesh prison outside of Belfast. On July 18, 2000, after seven years' imprisonment, Ferry was released pursuant to the Good Friday Agreement, signed on April 10, 1998, which called for the release of IRA prisoners. On August 5, 2000, Ferry married Heaven Sheehan, a United States Citizen, at the Belfast City Hall. Shortly thereafter, Ferry claimed that the RUC informed him that his name was on the death list of loyalist paramilitary groups in Northern Ireland.

On December 12, 2000, Ferry entered the United States under the VWP, obtaining authorization to remain in the country until March 11, 2001. In exchange for expedited entry under the VWP, Ferry executed a Nonimmigrant Visa Waiver Arrival/Departure Form ("Form I-94W"). Admin. R. at 826-27. On the Form I-94W, Ferry waived his right "to contest, other than on the basis of an application for asylum, any action in deportation." See 8 U.S.C. § 1187(b)(2). Ferry also marked "no" in response to the question of whether he had "ever been arrested or convicted for an offense or crime involving moral turpitude . . . or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more. . . ." See id. § 1187(a)(6) (requiring an alien admitted under the VWP "not to represent a threat to the welfare, health, safety, or security of the United States").

On March 5, 2002, almost a year after his VWP visa expired, Ferry filed a Form I-485 application to adjust status and a Form I-765 request for employment authorization with the DHS district office in Denver, Colorado. That same day, Ferry's wife filed a Form I-130 immediate relative visa petition. The DHS granted Ferry a work permit, but the adjustment of status application and the immediate relative petition remained pending.

On January 30, 2003, the DHS scheduled an interview with Ferry and his wife in Denver, Colorado, regarding his adjustment of status application and her immediate relative petition. When Ferry and his wife arrived for the interview, DHS officials arrested Ferry.5 On January 31, the DHS district director issued an administrative order of removal, concluding that Ferry had overstayed under the terms of his VWP visa.6 Admin. R. at 2503. The order informed Ferry that because he was admitted under the VWP, he could only contest the order of removal by applying for asylum. Id. On February 4, after Ferry expressed interest in applying for asylum, the DHS referred him to an immigration judge for asylum-only proceedings.7

On February 19, 2003, the DHS approved Ferry's wife's Form I-130 immediate relative visa petition. Admin. R. at 2703. However, on May 23, 2003, the DHS district director denied Ferry's Form I-485 adjustment of status application. Id. at 822-25. The director reasoned that although Ferry was the beneficiary of an approved Form I-130 petition filed by his spouse, the record demonstrated that Ferry was inadmissible on two grounds.8 First, the director stated that Ferry remained convicted of conspiracy to commit murder and of possession of firearms with intent to endanger life. The director determined that these crimes involved moral turpitude and were not purely political offenses. As a result, the director concluded that Ferry was inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I).9 Second, the director stated that Ferry was inadmissible because when he entered the United States under the VWP, he failed to disclose his criminal record on his Form I-94W. The director concluded that this failure amounted to a willful misrepresentation of a material fact pursuant to 8 U.S.C. § 1182(a)(6)(C)(i).10 Lastly, the director ruled that notwithstanding these two grounds, Ferry's application was denied based on an exercise of discretion. The director stated that Ferry's wife and new child were the only factors weighing in favor of his application, and that those factors were significantly outweighed by Ferry's prior criminal record and his misrepresentation about that record at the time he entered the United States. The director informed Ferry that no appeal was available from the decision.11

Notwithstanding the DHS's denial of Ferry's application for adjustment of status, Ferry continued to assert his right to adjust his status, and thereby obtain relief from the DHS's administrative order of removal and release from DHS custody. Relevant to these consolidated appeals, Ferry was referred to the immigration court for asylum-only proceedings, Case No. 04-9555; Ferry filed a petition for habeas corpus in federal district court, Case No. 05-1014; and Ferry filed a petition for review in this court of the DHS district director's administrative order of removal, Case No. 03-9526.

A. Case No. 04-9555

On November 4, 2003, an IJ denied Ferry's applications for asylum, withholding of removal, and relief under CAT. Admin. R. at 187-200. At the outset, the IJ observed that Ferry was referred to the Immigration Court...

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