Galluzzo v. Holder
2011 U.S. App. LEXIS 1566
| 2d Cir. | 2011Background
- Galluzzo entered the U.S. from Italy on a ninety-day tourist visa under the Visa Waiver Program (VWP).
- There's scant record of his entry beyond passport copy and I-94W front page; no signed waiver or waiver form produced by the government.
- Galluzzo overstayed the ninety days and later sought to adjust status, including an I-140 and an I-485 filing.
- USCIS denied Galluzzo’s I-485 on May 24, 2007 for willful misrepresentation related to VWP entry.
- ICE issued an October 1, 2008 removal order without a pre-removal hearing, citing VWP waiver language.
- Galluzzo challenged both the removal order and the denial of his I-485 in district court and this Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Galluzzo had a constitutional right to a pre-removal hearing absent waiver | Galluzzo, no waiver shown, had due process right | VWP waives rights, including hearing, by statute | Galluzzo has a right to a hearing absent waiver |
| Whether the absence of proof of waiver defeats due process violation or requires dismissal | Waiver not proven; violation occurred | Waiver implied by VWP entry logic | Presumption of waiver rejected; remand to assess prejudice |
| Whether Galluzzo suffered prejudice from the lack of a pre-removal hearing | Prejudice is shown by merits of underlying claims, including adjustment eligibility | Prejudice requires agency’s factual merits evaluation | Remand to DHS to determine prejudice |
| Whether the district court properly applied the first-to-file rule to stay/abstain from the civil action | Civil action and petition raise different procedural stages | First-to-file applies; district court did not err | District court correctly applied first-to-file rule |
Key Cases Cited
- Landon v. Plasencia, 459 U.S. 21 (1982) (due process rights expand after admission)
- Plyler v. Doe, 457 U.S. 202 (1982) (aliens are entitled to due process protections)
- Bayo v. Napolitano, 593 F.3d 495 (7th Cir.2010) (right to a hearing for similar VWP entrants absent waiver)
- Nose v. Att'y Gen. of the U.S., 993 F.2d 75 (5th Cir.1993) (constitutional right to hearing in analogous removal context)
- INS v. Ventura, 537 U.S. 12 (2002) (proper course is remand for agency explanation or investigation)