Rui Gilberto Enes De Vasconcelos v. Lynch

• Decision Date: 02 November 2016
• Docket Number: No. 15-1308-ag,August Term, 2015,15-1308-ag
• Citation: 841 F.3d 114
• Parties: Rui Gilberto Enes De Vasconcelos, Petitioner, v. Loretta E. Lynch, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

841 F.3d 114

Rui Gilberto Enes De Vasconcelos, Petitioner,

v.Loretta E. Lynch, United States Attorney General, Respondent.

No. 15-1308-ag

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: May 18, 2016

Decided: November 2, 2016

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. § 1252(b)(4)(B) ). Our consideration of questions of law and the application of law to undisputed facts is de novo . See Shabaj v. Holder , 602 F.3d 103, 105 (2d Cir. 2010).

I.

Congress established the VWP in 1986 to facilitate international travel and tourism, improve relations with friendly nations, and reduce the administrative burdens that result from unnecessary visa processing by authorizing the Attorney General and the Secretary of State to waive the visa requirement for nonimmigrant aliens who meet certain statutory requisites. See 8 U.S.C. § 1187(a) ; H.R. Rep. No. 99–682, pt. I, at 50 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5654. To be eligible to participate in the program, a person must, among other things, be a citizen or national of a designated country who is in possession of a valid, unexpired passport, does not present a threat to national security, and promises to depart the country within ninety days of entry. 8 U.S.C. § 1187(a)(1)–(3), (6).¹ Participants also must agree to waive any right “to contest, other than on the basis of an application for asylum, any action for removal.” Id. § 1187(b)(2). If a VWP entrant fails to leave the country within the ninety-day time frame (or becomes removable for some other reason), the DHS district director for the jurisdiction in which he is located may order him removed without referring him to an immigration judge for a hearing. 8 C.F.R. §§ 217.4(b), 1208.2(c)(iv). Because a continuously present resident alien has a constitutional right to a pre-removal hearing, e.g. , Landon v. Plasencia , 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982), the waiver of that right acts as the “linchpin of the program,” Handa v. Clark , 401 F.3d 1129, 1135 (9th Cir. 2005), ensuring that the statute accomplishes “Congress's goal of allowing VWP participants expeditious entry into the country but streamlining their removal,” Gjerjaj , 691 F.3d at 293.

Before 2009, applicants were required to present upon arrival a “completed, signed Form I–94W,” which memorializes the terms of the program and collects biographical and other information necessary to determine eligibility. 8 C.F.R. § 217.2(b)(1) ; Bayo v. Napolitano , 593 F.3d 495, 499 (7th Cir. 2010) (en banc). The I–94W also contains a certification that the applicant “hereby waive[s] any right[ ] ... to contest, other than on the basis of an application for asylum, any action in deportation.”² In Galluzzo v. Holder, we held that because “we indulge every reasonable presumption against waiver of fundamental constitutional rights,” the government cannot rely solely upon a person's status as a VWP entrant to show that he waived his right to a hearing, but rather must offer “explicit evidence of waiver.” 633 F.3d 111, 114–15 (2d Cir. 2011) (citation omitted) (emphasis removed). A physically signed I–94W thus played a central role in the program's operation.

In the wake of the terrorist attacks on the United States on September 11, 2001, Congress passed the Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110–53, 121 Stat. 266, in order to “modernize and strengthen the security of the visa waiver program.” 121 Stat. 266 § 711(b), 121 Stat. at 338. Unlike visitors who obtain a visa at a consular post overseas before traveling, VWP participants were not screened for entry until they arrived in the United States. See Changes to the Visa Waiver Program to Implement the Electronic System for Travel Authorization (ESTA) Program, 73 Fed. Reg. 32,440, 32,441 –42 (June 9, 2008). As a result, thousands were turned away at the port-of-entry annually, “causing significant expense, delay, and inconvenience for those aliens, other travelers, and the U.S. government.” Id. at 32,442. In addition, the security vulnerabilities of such a system created a risk that terrorists and other criminal actors might exploit the program to enter the country. Privacy Act of 1974; Department of Homeland Security/U.S. Customs and Border Protection (DHS/CBP)–009 Electronic System for Travel Authorization (ESTA) System of Records, 79 Fed. Reg. 65,414, 65,414 (Nov. 4, 2014). To address these concerns, the 9/11 Commission Act requires the Secretary of Homeland Security, in consultation with the Secretary of State, to develop and implement a “fully automated electronic travel authorization system ... to collect such biographical and other information as the Secretary ... determines necessary to determine, in advance of travel, the eligibility of, and whether there exists a law enforcement or security risk in permitting, the alien to travel to the United States.” 121 Stat. 266, § 711(d)(1)(E), 121 Stat. at 344 (adding 8 U.S.C. § 1187(h)(3)(A) ). The Act further provides that “each alien traveling under the [VWP] shall, before applying for admission to the United States, electronically provide to the system” such information. Id. § 711(d)(1)(A)(ii)...