Vasconcelos v. Lynch
841 F.3d 114
| 2d Cir. | 2016Background
- Petitioner Rui Gilberto Enes de Vasconcelos, a Portuguese citizen and Angola native, entered the U.S. on June 25, 2012 at Champlain, NY and later was served an order of removal for overstaying his Visa Waiver Program (VWP) admission.
- DHS’s administrative record showed an ESTA electronic application submitted by Vasconcelos ~2 months before entry, with an affirmative "Waived Rights" indicator and a "Third Party Indicator" showing he personally submitted the form.
- An I-94 Arrival Record lists his admission class as "Visa Waiver/Tourist (WT)" with an admission expiration of September 23, 2012.
- DHS issued removal without an immigration-court hearing on the ground that Vasconcelos waived the right to contest removal by submitting the ESTA and entering under the VWP.
- Vasconcelos challenged the removal, arguing the government needed a physically signed paper I-94W (pre-ESTA form) or other proof of admission under the VWP; he also argued the record ambiguities showed he did not enter pursuant to the VWP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an ESTA electronic record can constitute "explicit evidence of waiver" of the right to a hearing under the VWP | Galluzzo requires production of a physically signed I-94W; electronic record is insufficient | ESTA record showing applicant personally submitted and certified waiver is sufficient proof of waiver | Court held an ESTA record suffices to establish waiver; no categorical rule requires a signed paper I-94W |
| Whether Vasconcelos is bound by VWP waiver if he did not actually receive expedited VWP admission | He contends he didn’t obtain admission under the VWP and so is not bound by the waiver | DHS relied on ESTA, I-94, and his statements to conclude he entered as a VWP entrant | Substantial evidence supports DHS’s finding that he entered under the VWP; waiver binds him |
| Admissibility/reliability of ESTA electronic records in immigration proceedings | ESTA is a self-serving computer record and unreliable | ESTA records are generated by public officials in ordinary course and have a presumption of reliability, rebuttable by evidence of untrustworthiness | Court treated ESTA record as competent evidence; presumption may be rebutted but Vasconcelos failed to do so |
| Whether statutory or regulatory requirements (passport, round-trip ticket, land-entry rules) defeat reliance on ESTA | Missing items in record and land-entry rules show ESTA could not have authorized him | Missing optional fields do not prove ineligibility; regulations allow ESTA submissions and DHS may record entries as I-94/I-94W | Court found omissions did not compel conclusion ESTA was not approved; regulatory framework permits ESTA use and record supports VWP admission |
Key Cases Cited
- Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011) (government must present explicit evidence of waiver of removal hearing rights)
- Gjerjaj v. Holder, 691 F.3d 288 (2d Cir. 2012) (VWP offers expedited entry in exchange for waiver; courts review whether statutory criteria were met)
- Shabaj v. Holder, 602 F.3d 103 (2d Cir. 2010) (waiver may bind entrant even if entrant was ineligible)
- Felzcerek v. I.N.S., 75 F.3d 112 (2d Cir. 1996) (records generated by public officials in ordinary course are presumptively reliable evidence)
- Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008) (standard for review of administrative factual findings)