Harold Riera-Riera v. Loretta E. Lynch
2016 U.S. App. LEXIS 21185
| 9th Cir. | 2016Background
- Harold Riera-Riera, a Peruvian national, entered the U.S. in 1998 using a fraudulent Italian passport to obtain admission under the Visa Waiver Program (VWP).
- VWP admission requires agreeing not to contest removal except by applying for asylum and carries a 90-day authorized stay; Riera overstayed.
- DHS discovered the fraudulent VWP entry in 2011, ordered removal under the VWP, and referred Riera to an Immigration Judge (IJ) for asylum-only proceedings.
- Riera argued that because he is not an Italian national and entry was fraudulent, he is not bound by VWP limitations and should be allowed to seek adjustment of status and challenge removability.
- The IJ and the Board of Immigration Appeals (BIA) refused to consider adjustment of status, limited proceedings to asylum/CAT claims, and denied relief; Riera petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an alien who fraudulently entered under the VWP is bound by VWP limitations (waiver of removal challenges except asylum) | Riera: fraudulent/noncitizen entry means VWP limits don't bind him; he may seek adjustment and challenge removability | Government: VWP (and implementing regulation) applies to those admitted under it, even if ineligible; limits jurisdiction to asylum-only | Court: VWP limits apply to fraudulent entrants; BIA properly refused to consider adjustment of status |
| Validity of Attorney General regulation removing fraudulent VWP entrants without IJ referral except for asylum applicants | Riera: regulation shouldn't bind him because statute silent on fraudulent entrants | Government: regulation is a reasonable interpretation of ambiguous statute | Court: Chevron deference applies; statute ambiguous and regulation reasonable; regulation valid |
| Due process challenge to VWP procedures and denial of reopening to seek adjustment | Riera: refusal to consider adjustment denied due process | Government: VWP procedures are neither complex nor unfair; signatory waived certain rights | Court: Even assuming due process attaches, VWP procedures satisfy due process; no violation |
| Merits of asylum, withholding, and CAT claims | Riera: (generally) seeks protection from persecution/torture | Government: Record lacks nexus to protected ground and CAT evidence is insufficient | Court: Asylum/withholding waived for failing to identify protected-ground nexus; CAT denial supported by substantial evidence |
Key Cases Cited
- Handa v. Clark, 401 F.3d 1129 (9th Cir. 2005) (upholding lawfulness of VWP restriction on appeals)
- Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010) (VWP limits bind ineligible entrants)
- Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (en banc) (VWP restrictions apply to fraudulent admittees)
- Zine v. Mukasey, 517 F.3d 535 (8th Cir. 2008) (VWP limitations apply to ineligible entrants)
- Bingham v. Holder, 637 F.3d 1040 (9th Cir. 2011) (VWP procedures satisfy due process)
- Bradley v. Attorney Gen. of the U.S., 603 F.3d 235 (3d Cir. 2010) (similar conclusion on VWP fairness)
- Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) (failure to show nexus to protected ground is dispositive for asylum)
- Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (generalized evidence insufficient for CAT relief)
PETITION DENIED.