Third Circuit Finds that Asylee who Travels is no Longer Subject to VWP Waiver

The Third Circuit has determined that a non-citizen who enters the US through the visa waiver program (VWP), receives asylum, and re-enters the country as an asylee at a later date, is no longer subject to the waiver of rights that attaches to a VWP entry. Thus, if the asylee is later convicted of an aggravated felony, the Department of Homeland Security must place him in removal proceedings, not re-open the asylum-only proceedings through which he was originally granted asylum, in order to terminate his asylum status and seeks his removal. In these removal proceedings, the asylee can apply for adjustment of status.

The full text of Kosh Ishmael v. Attorney General can be found here:

https://www2.ca3.uscourts.gov/opinarch/212563pa1.pdf

Third Circuit Finds that Non-VWP Citizen still Subject to VWP Restrictions due to Attempted Fraudulent VWP Entry

The Third Circuit has determined that an Albanian citizen who attempted to enter the US using a fraudulent Italian passport through the Visa Waiver Program (VWP) waived his right to contest his removal through any means other than an asylum application, even though Albania is not a VWP country and even though he was not admitted to the United States for 90 days under the VWP.

The full text of Shkembi v. Attorney General can be found here: https://www2.ca3.uscourts.gov/opinarch/212592p.pdf

Seventh Circuit Upholds Waiver of Rights by Minor who Entered on Visa Waiver

The Seventh Circuit has upheld the validity of a waiver to challenge a removal order for a petitioner who entered the United States as a minor on the visa waiver program, and whose parent signed the waiver on his behalf.

The full text of Ferreyra v. Barr can be found here:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D06-16/C:19-2055:J:Ripple:aut:T:fnOp:N:2531868:S:0

Fifth Circuit Dismisses Appeal of Motion to Reopen Visa Waiver Overstay Removal Order

The petitioner lasted entered the United States using the Visa Waiver Program (VWP). Use of the VWP requires a traveler to waive any right to contest a removal order except through a claim for asylum. The petitioner remained in the United States beyond the 90 day authorized period, and ICE issued a removal order against him. He later filed a motion to reopen that order, which ICE denied. He then filed a Petition for Review of the denial.

The Fifth Circuit dismissed, find that the petition was premised on the denial of a motion that the petitioner was not entitled to file in the first instance.

The full text of Lavery v. Barr can be found here:

http://www.ca5.uscourts.gov/opinions/pub/18/18-60244-CV0.pdf

First Circuit Rejects Challenge to Visa Waiver Overstay Administrative Order

The First Circuit has rejected a challenge to administrative removal order issued against a petitioner who entered the United States on the visa waiver program and overstayed, despite his entry to the United States as a minor. The Court determined that even if he had not knowingly waived his right to a removal hearing because he was a minor, he could not establish any eligibility for relief at the time of the issuance of the administrative removal order, and thus, could not establish prejudice.

The full text of O’Riordan v. Barr can be found here:

http://media.ca1.uscourts.gov/pdf.opinions/17-1990P-01A.pdf

Ninth Circuit Finds that DHS Erred by Placing Petitioner in Asylum Only Proceedings

The Department of Homeland Security (DHS) issued a removal order against Petitioner for overstaying his permitted time in the United States under the visa waiver program.  Petitioner then briefly departed the United States, and was paroled back.  Subsequently, he was placed in asylum-only proceedings, and his asylum application was denied.  The Court determined that Petitioner's brief departure from the United States executed the visa waiver overstay removal order, and as such, the DHS erred by placing him in asylum-only proceedings.  As such, there was no final order of removal before the Court to review, as the original order had been executed, and the denial of asylum did not qualify as a final order of removal because the denial of an asylum application in asylum-only proceedings merely “finalizes” DHS’s removal order of a visa waiver program entrant.  

The full text of Nicusor-Remus v. Sessions can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/08/15-70588.pdf

Fourth Circuit Assumes that Visa Waiver Entrant Properly Waived Right to Removal Hearing

The Fourth Circuit has determined that when the Department of Homeland Security presents evidence that a petitioner was properly admitted to the United States on the visa waiver program, the court will presume (absent clear evidence showing otherwise) that the government necessarily obtained the entrant’s waiver to challenge any subsequent removal order.

The full text of Nardea v. Sessions can be found here:

http://www.ca4.uscourts.gov/opinions/161274.P.pdf

Ninth Circuit Addresses Fraudulent Entry Under Visa Waiver Program

The Ninth Circuit has determined that a person who enters the United States on the visa waiver program on a fraudulent passport is still subject to the waiver of rights associated with a visa waiver entry.  As such, the person is not entitled to have an immigration judge adjudicate an application for adjustment of status.

The full text of Riera-Riera v. Lynch can be found here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/28/13-73062.pdf