Gjerjaj v. Holder
691 F.3d 288
| 2d Cir. | 2012Background
- Petitioner Daniela Gjerjaj, a native and citizen of Albania, entered the United States in January 2005 under the Visa Waiver Program (VWP) using a fraudulent Italian passport.
- As a VWP entrant, she signed a waiver obligating her to forgo review of removability except for asylum eligibility.
- She sought asylum and was referred to an immigration judge; asylum was denied and the BIA denied review.
- While asylum proceedings were pending, she filed an adjustment of status application based on a marriage to a U.S. citizen.
- Her 90-day VWP stay expired, and ICE issued a removal order in January 2011 after she had an asylum-only proceeding.
- USCIS later denied her adjustment of status due to the removal order and the VWP constraints.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VWP waiver bars challenges to removability other than asylum | Gjerjaj argues she should contest removal on grounds including adjustment of status | Government argues waiver and asylum-only proceeding foreclose other challenges | Waiver bars non-asylum challenges; asylum-only proceeding complete. |
| Whether asylum-only proceedings satisfy due process for an adjustment-eligible VWP participant | Adjustment pending before removal violates due process | VWP participants waived rights; asylum process suffices | Due process not violated; waiver and asylum process valid. |
| Whether an adjustment of status application filed after overstaying the 90-day period can be a defense to removal | Adjustment should be heard despite removal | VWP participants cannot use post-stay adjustments as defense | No defense based on post-stay adjustment; removal proper. |
| Whether Gjerjaj is entitled to equal protection due to delay in adjudication of adjustment of status | USCIS treated her differently from prior adjustment cases | Waiver and asylum structure control; no equal protection violation | No equal protection violation; waiver applies. |
Key Cases Cited
- Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010) (VWP waivers bind participants even with false passports; asylum exception remains)
- Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011) (VWP participants bound by waivers; government must prove VWP participation)
- Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (VWP waiver validity; involuntary signing considerations)
- McCarthy v. Mukasey, 555 F.3d 459 (5th Cir. 2009) (Affirms limited defenses based on VWP framework)
- Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. 2008) (Supports removal based on overstay after VWP window)
- Ferry v. Gonzales, 457 F.3d 1117 (10th Cir. 2006) (Addresses VWP expeditious entry and removal streamlined)