Shkembi v. Attorney Gen. U.S.
| Decision Date | 27 July 2022 |
| Docket Number | 21-2592 |
| Citation | 41 F.4th 237 |
| Parties | Olsi SHKEMBI, Petitioner v. ATTORNEY GENERAL UNITED STATES of America |
| Court | U.S. Court of Appeals — Third Circuit |
Marcia Kasdan, Law Office of Marcia S. Kasdan, 127 Main Street, 1st Floor, Hackensack, NJ 07601, Counsel for Petitioner
Matthew B. George, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges
Olsi Shkembi is a citizen of Albania. He attempted to enter this country by representing that he was a national of a country that is a participant in the Visa Waiver Program (VWP), 8 U.S.C. § 1187, although Albania is not a participant in that program. His ruse was detected before he could leave the airport where immigration authorities deemed him inadmissible. Pursuant to the terms of the VWP, which precludes contesting one's removability except by applying for asylum, immigration authorities referred him to an Immigration Judge (IJ) for asylum-only proceedings. After his application seeking asylum, withholding of removal, and relief under the Convention Against Torture (CAT) was denied, he succeeded in reopening his asylum proceeding. Despite the VWP's limitation to asylum-only proceedings, Shkembi applied for a marriage-based adjustment of status (AOS) and then withdrew his asylum application at a scheduled hearing before the IJ. His immigration file was returned to the Department of Homeland Security, but his AOS application was not adjudicated. After being taken into custody, he filed an emergency motion to reopen his asylum proceedings. The motion was denied.
Shkembi petitioned for review. Shkembi asserts that his AOS application should have been adjudicated because he is not bound by the terms of the VWP. This Court has yet to address whether the terms of the VWP apply to an alien who is from a non-VWP-participant country but who nevertheless attempts to enter the United States by using the passport of a national of a VWP-participant country. We join all of our sister circuits that have considered this question and now hold that such an alien, despite his ineligibility for the VWP, is subject to the terms of the VWP. Accordingly, Shkembi has never had a right to contest his removability by seeking an AOS and has been limited to asylum-only proceedings.
Shkembi also contends that the denial of his emergency motion to reopen deprived him of his right to due process. We disagree. We will deny the petition for review.
Shkembi tried to enter the United States under the VWP. "The Program allows travel without a visa for short-term visitors from 38 countries that have entered into a ‘rigorous security partnership’ with the United States." Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2411, 201 L.Ed.2d 775 (2018) (citation omitted); see also 8 U.S.C. § 1187(a). In exchange for the United States' waiver of its visa requirement, the "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." Bradley v. Att'y Gen. , 603 F.3d 235, 238 (3d Cir. 2010) ; see also 8 U.S.C. § 1187(b). "[T]he linchpin of the program is the waiver, which assures that a [VWP visitor] who comes here ... 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).
Shkembi arrived in Miami in 2003 seeking entry without a visa under the VWP. He used an Italian passport that had substituted Shkembi's photograph for that of an Italian citizen. After immigration authorities detected the altered photograph on the passport and questioned Shkembi, he revealed that he was a citizen of Albania. As noted above, Albania is not a VWP partner. In the Notice of Referral to Immigration Judge, Form I-863, Shkembi was initially designated as a VWP applicant and the I-863 was provided to an Immigration Judge (IJ) with the passport and an I-94W waiver of appeal signed by Shkembi.
In 2004, Shkembi applied for asylum, withholding of removal, and CAT relief, alleging political persecution. In the processing of his application, Shkembi was designated as a "VWP violator." CAR1163. The IJ denied Shkembi's application in its entirety, and the Board of Immigration Appeals (BIA) affirmed that order. The denial of relief resulted in a final order, and Shkembi was subject to removal without further process. Shehu v. Att'y Gen. , 482 F.3d 652, 656 (3d Cir. 2007). We upheld the BIA's decision. Shkembi v. Att'y Gen. , 380 F. App'x 207 (3d Cir. 2010) (per curiam).
Although Shkembi could have been removed, for reasons not explained in the record, he remained in the United States. He married, and he and his wife had two children who were born in this country. In 2013, his wife filed an I-130 form to facilitate her husband's efforts to apply for an AOS. On March 11, 2014, his wife's I-130 request was approved.
In 2019, Shkembi succeeded in reopening his asylum proceeding based on changed country conditions in Albania. Thereafter, in January 2020, Shkembi, seeking an AOS, filed an application for waiver of certain grounds of inadmissibility, Form I-601, noting in his application that his wife was now a United States citizen. Days before the scheduled IJ hearing on his reopened asylum application, Shkembi moved to terminate the proceeding. In his motion, Shkembi acknowledged that the IJ could not adjust his status because he had been before the IJ in asylum-only proceedings under the VWP, but sought to remand his case to the United States Citizenship and Immigration Services (USCIS) so it could adjudicate his marriage-based AOS application.
At the hearing, the Government opposed the motion to terminate or to administratively close Shkembi's case. Mindful of the remand from the BIA reopening the asylum case, the IJ took steps to confirm that termination was truly the action Shkembi was requesting. The IJ admitted the I-589 asylum application as an exhibit and Shkembi, after being sworn-in to testify, affirmed that he would "not proceed with the 589." CAR78. When the IJ asked again, Shkembi confirmed that he did not want to proceed with his asylum claim. He denied being threatened or forced to give up his right to pursue his I-589 application. He also denied being under the influence of drugs or alcohol, or that he suffered from a mental illness. In response to the IJ's inquiry of whether Shkembi understood that she could not "guarantee" what would transpire before USCIS, Shkembi confirmed that he understood. CAR79.
Before the hearing concluded, Shkembi's counsel sought to preserve the legal issue that "a false visa waiver in contrast to a genuine visa waiver should not be subject to restrictions under [ § 1187 ] for asylum only relief." CAR80. The IJ declined to address that issue, stating that she had "no authority to consider such an argument." Id.
The IJ denied the motion to terminate. In her decision, the IJ noted that the Government had "not agreed to termination or dismissal of these proceedings." CAR91. Then, after reciting the procedural history of reopening to permit Shkembi to proceed on his I-589 asylum application, the decision stated that Shkembi had "testified that he will not proceed on the I-589 application ... before this court, and this court finds that [Shkembi] knowingly and voluntarily so testified." Id. The IJ took "no further action" on Shkembi's I-589 and "returned" the matter to the Department of Homeland Security (DHS). Id.
Months later, Immigration and Customs Enforcement took Shkembi into custody. Shkembi promptly filed an emergency motion to reopen his asylum proceeding, seeking to reinstate his I-589. The DHS opposed the motion. The IJ denied the emergency motion. After reciting the procedural history in which Shkembi failed to take advantage of the "golden opportunity" that he had been afforded when his case was reopened, choosing instead to withdraw his I-589 application, the IJ noted that Shkembi's new I-589 asylum application mirrored the earlier application he had withdrawn. Because motions to reopen require a movant to present "new facts" that were not previously available, 8 C.F.R. § 1003.23(b)(3), and because Shkembi sought "to reinstate the same application that he abandoned," CAR59, the IJ concluded that he had failed to clear the hurdles for reopening. The IJ also determined that there was no basis to allow a sua sponte reopening. Shkembi unsuccessfully appealed to the BIA.
This timely petition for review followed.1 Shkembi raises two issues. First, he contends that as a VWP applicant who attempted to enter the U.S. by using the altered passport of a national from a VWP participating country, but who never received the lawful 90-day visit, he did not waive his right to contest removal through an adjustment of status. Therefore, he submits that his AOS application should have been decided. Second, he asserts that the denial of his emergency motion to reopen was fundamentally unjust and deprived him of the due process to which he is entitled under the Fifth Amendment.
We review both the BIA and the IJ's decisions inasmuch as the BIA relied on the IJ's findings and her decision. See B.C. v. Att'y Gen. , 12 F.4th 306, 313 (3d Cir. 2021). Our review of the factual determinations is for substantial evidence, and we apply plenary review to legal issues. Id. The denial of a motion to reopen is reviewed for an abuse of discretion. Darby v. Att'y Gen. , 1 F.4th 151, 159 (3d Cir. 2021).
In an effort to obtain an adjudication of his AOS application, Shkembi points out that VWP entrants receive a 90-day period in this country in exchange for waiving their rights to contest removability determinations, except through an asylum...
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