Rui Gilberto Enes De VASCONCELOS, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent.
No. 15-1308-ag
United States Court of Appeals, Second Circuit
November 2, 2016
August Term, 2015
Argued: May 18, 2016
In sum, viewing the evidence in the light most favorable to the Government, we conclude there was sufficient evidence to support Rosemond‘s convictions, and therefore decline to direct the District Court to enter a judgment of acquittal.5
CONCLUSION
For the reasons set forth above, we VACATE Rosemond‘s convictions and REMAND to the district court for further proceedings consistent with this opinion.
JAMIE DOWD (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Anthony P. Nicastro, Acting Assistant Director, Tracey N. McDonald, Trial Attorney, Office of Immigration Litigation, Department of Justice, Washington, D.C., on the brief), for Respondent.
Before: KEARSE, JACOBS, and PARKER, Circuit Judges.
BARRINGTON D. PARKER, Circuit Judge:
The Visa Waiver Program (“VWP“) allows eligible citizens and nationals of designated countries to visit the United States for up to ninety days without obtaining a visa, provided that they agree to waive any right to contest removal other than by seeking asylum.
Rui Gilberto Enes de Vasconcelos was ordered removed by DHS without the benefit of a hearing on the ground that he waived the right to challenge removal by submitting an ESTA application and subsequently entering the country pursuant to the VWP. We are asked to decide whether the government may establish waiver based upon an ESTA record showing that a petitioner submitted an ESTA application and thereby certified waiver, or whether, as Vasconcelos urges, it must produce a physically signed I-94W. We hold that an ESTA record is sufficient evidence of waiver. Because the administrative record supports the agency‘s finding that Vasconcelos waived his right to a hearing by submitting an ESTA application and entering the United States pursuant to the VWP, the petition is DENIED.
BACKGROUND
Vasconcelos is a citizen of Portugal and native of Angola who has resided in the United States since 1989. He last entered the country on June 25, 2012 at the port-of-entry at Champlain, New York on the Canada-United States border. Although the circumstances of his admission are disputed, an ESTA computer-generated record indicates that, approximately two months earlier, he submitted via the ESTA an application to participate in the VWP, in which he provided biographical, passport, and other information necessary to determine his eligibility. The ESTA record also contains an “N” notation next to the field “Third Party Indicator” and a “Y” notation next to the field “Waived Rights,” reflecting that Vasconcelos personally filled out and submitted the form and certified that, by participating in the program, he waived any right to challenge removal except by seeking asylum. Admin. R. at 3.
In October 2014, while incarcerated at the Nassau County Correctional Center in East Meadow, New York for failing to pay child support, Vasconcelos was interviewed by an immigration officer. In connection with the interview, he submitted a sworn affidavit acknowledging that he had last entered the United States in June 2012 at the “New York/Canadian border, by bus,”
DISCUSSION
We have jurisdiction over final orders of removal,
I.
Congress established the VWP in 1986 to facilitate international travel and tourism, improve relations with friendly nations, and reduce the administrative burdens that result from unnecessary visa processing by authorizing the Attorney General and the Secretary of State to waive the visa requirement for nonimmigrant aliens who meet certain statutory requisites. See
In the wake of the terrorist attacks on the United States on September 11, 2001, Congress passed the Implementing Recommendations of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266, in order to “modernize and strengthen the security of the visa waiver program.” 121 Stat. 266 § 711(b), 121 Stat. at 338. Unlike visitors who obtain a visa at a consular post overseas before traveling, VWP participants were not screened for entry until they arrived in the United States. See Changes to the Visa Waiver Program to Implement the Electronic System for Travel Authorization (ESTA) Program, 73 Fed. Reg. 32,440, 32,441-42 (June 9, 2008). As a result, thousands were turned away at the port-of-entry annually, “causing significant expense, delay, and inconvenience for those aliens, other travelers, and the U.S. government.” Id. at 32,442. In addition, the security vulnerabilities of such a system created a risk that terrorists and other criminal actors might exploit the program to enter the country. Privacy Act of 1974; Department of Homeland Security/U.S. Customs and Border Protection (DHS/CBP)-009 Electronic System for Travel Authorization (ESTA) System of Records, 79 Fed. Reg. 65,414, 65,414 (Nov. 4, 2014). To address these concerns, the 9/11 Commission Act requires the Secretary of Homeland Security, in consultation with the Secretary of State, to develop and implement a “fully automated electronic travel authorization system . . . to collect such biographical and other information as the Secretary . . . determines necessary to determine, in advance of travel, the eligibility of, and whether there exists a law enforcement or security risk in permitting, the alien to travel to the United States.” 121 Stat. 266, § 711(d)(1)(E), 121 Stat. at 344 (adding
Pursuant to these directives, DHS developed and implemented the ESTA, which makes the I-94W available online in twenty-two languages and enables applicants to receive an automated determination of eligibility prior to travel. See Official ESTA Application, https://esta.cbp.dhs.gov/esta/application.html?execution=els1; Changes to the Visa Waiver Program to Implement the Electronic System for Travel Authori-
II.
This petition requires us to resolve whether the government may establish waiver based upon an ESTA record. Vasconcelos contends that, under Galluzzo, the government must obtain a physically signed I-94W, notwithstanding the implementation of the new electronic system. The government takes the view that Galluzzo is not determinative because it addresses the burden of proof under the pre-ESTA framework and, in any event, the ESTA record is “explicit evidence of waiver,” 633 F.3d at 114, because it shows that Vasconcelos submitted an ESTA application and thereby certified that he waived any right to contest removal.
We agree with the government that an ESTA record is sufficient to establish waiver. Nothing in Galluzzo requires the production of a physically signed I-94W, even under the pre-ESTA, paper-based system. On the contrary, we reasoned that the government had failed to demonstrate waiver because the record was “silent as to whether Galluzzo signed or otherwise agreed to waive his rights to contest removal.” Id. at 115 (emphasis added); cf. Bradley v. Att‘y Gen., 603 F.3d 235, 237-39 (3d Cir. 2010) (finding sufficient evidence of waiver where the petitioner admitted in a declaration that he had signed a form, presented it to a customs officer, and was then admitted into the United States, and the record contained the relevant portion of a handwritten Form I-94W with Bradley‘s name and date of birth, and the stamped date on which Bradley was admitted). Here, the ESTA record shows that Vasconcelos personally completed and submitted the application and thereby agreed that he waived the right to a hearing. As a record generated by public officials in the ordinary course of their duties, it is presumed reliable and may serve as competent evidence in immigration proceedings. See, e.g., Felzcerek v. I.N.S., 75 F.3d 112, 117 (2d Cir. 1996) (citing Fed. R.
In any event, we had no occasion in Galluzzo to consider what proof of waiver would be appropriate under an electronic application system, and we see no constitutional basis for categorically prohibiting the electronic waiver of rights. See, e.g., United States v. Leja, 448 F.3d 86, 88-89, 92-93 (1st Cir. 2006) (rejecting the notion that the defendant‘s waiver of her right to a jury trial, effected through counsel‘s electronic signature, was invalid). Indeed, the only other court of appeals to consider the issue summarily found that the ESTA‘s electronic waiver was valid. See Cho v. Att‘y Gen., 606 Fed.Appx. 574, 575 (11th Cir. 2015) (per curiam). We also did not consider in Galluzzo the implications of the 9/11 Commission Act, which was passed, as noted, to modernize and strengthen the security of the VWP by requiring the Secretary to “develop and implement a fully automated electronic travel authorization system,”
Because our case law does not foreclose the use of electronic waiver, we hold that an ESTA record showing that a petitioner submitted an ESTA application and thereby certified that he waived his right to a hearing is sufficient to establish waiver. That does not mean, of course, that an ESTA record is invariably conclusive evidence of waiver. While records generated by public officials in the ordinary course of their duties are presumed reliable, that presumption may be rebutted by evidence that “the sources of information or other circumstances indicate a lack of trustworthiness,” or by evidence that contradicts or impeaches the record‘s contents. E.g., Felzcerek, 75 F.3d at 117 (quoting Fed. R. Evid. 803(8)). Vasconcelos gives us little reason, however, to doubt the reliability of the ESTA record in this case. Although he claims that the government should not be permitted to rely on a “self-serving” computer record, Pet‘r‘s Br. at 11, the fact that the record supports the government‘s position is irrelevant to its reliability.
Unable to undermine the ESTA record itself, Vasconcelos contends that even if he submitted an ESTA application in which he waived his right to a hearing, he is not constrained by the strictures of the VWP because he did not gain admission to the country pursuant to the program. We recognize that Vasconcelos might not be bound by his waiver if he did not receive the benefit of expedited admission. See Gjerjaj, 691 F.3d at 292 (“The VWP offers aliens the benefit of expedited entry as a quid pro quo in exchange for a waiver of rights.“) (internal quotation marks omitted). We believe, however, that the agency‘s determination that he entered the country pursuant to the program based upon his ESTA application is supported by substantial evidence. The ESTA record shows that Vasconcelos submitted an application approximately two months before he was admitted on June 25, 2012, Vasconcelos affirmed that he was able to gain entry to the country with a “Portuguese passport” alone, Admin. R. at 14,
Vasconcelos‘s efforts to undercut the agency‘s finding do not convince us otherwise. He argues that his ESTA application could not have been approved because it is missing certain requested information, including a foreign address, an address in the United States where he would be residing, a phone number, and airline and flight information. But because none of the missing information is statutorily required to determine eligibility, it is unclear whether approval was contingent upon its inclusion, and we cannot say on the basis of these omissions that the application could not have been approved. Vasconcelos also surmises that his application in fact was not approved because the ESTA record includes the notation “Expired” next to the field “Application Status.” Admin. R. at 3. That notation, however, merely reflects that on the date on which the ESTA record was retrieved from DHS‘s database (June 16, 2015), more than two years had passed since Vasconcelos‘s application had been approved. See Privacy Act of 1974; Department of Homeland Security, U.S. Customs and Border Protection—Electronic System for Travel Authorization (ESTA), Systems of Records, 73 Fed. Reg. 32,720, 32,724 (June 10, 2008).
Along the same lines, Vasconcelos claims that he could not have participated in the VWP because the administrative record does not contain a copy of his passport and a round-trip ticket, both of which are, in his view, statutory prerequisites for participating in the program. But we have never required the government to retain proof that a petitioner satisfied each of the statute‘s numerous requirements for participation at the time of entry. Quite the opposite, we have recognized that a waiver is binding on a person who gains admission under the VWP even if they were ineligible to participate in the program in the first place. See Shabaj, 602 F.3d at 105-06. At any rate, the record shows that Vasconcelos had a valid, unexpired passport at the time of entry, as the ESTA record includes his passport information and he confirmed in his sworn affidavit that he was able to enter the country using a “Portuguese passport.” Admin. R. at 14. And although the record does not indicate that Vasconcelos had a round-trip ticket, the Secretary has waived that requirement for participants who, like him, enter the country by land. See
Citing DHS regulations, Vasconcelos alternatively asserts that he could not have participated in the VWP based upon his ESTA application because, as a person arriving by land, he was ineligible to use the electronic system and was required to physically sign an I-94W when he crossed the border. The provision on which he relies, however, simply states that “[a]n applicant arriving at a land-border port-of-entry will be charged a fee . . . for issuance of Form I-94W.”
Vasconcelos lastly relies on two portions of the administrative record which he believes show that he entered the country using a visa, rather than as a visa waiver tourist. He points first to the I-94 Arrival Record and claims that only the I-94W is used in connection with visa waiver entrants. But he offers no support for this contention, and the I-94 provides that “[t]his form must be completed by all per-
Vasconcelos also observes that he was provided with a Form I-826 Notice of Rights and Request for Disposition, which states, “You have a right to a hearing before the Immigration Court to determine whether you may remain in the United States.” Admin. R. at 20. By supplying him with this form, he argues, DHS acknowledged that he had entered the country as a visitor entitled to a hearing, and not under the VWP. We are not persuaded. When initiating removal proceedings, the DHS is required by statute to provide an alien with a notice of rights, including the right to a hearing before an immigration officer.
While potential irregularities in the administrative record might cause a reasonable adjudicator to conclude that Vasconcelos did not enter the country pursuant to the VWP based on his ESTA application, we cannot say that any reasonable adjudicator would be compelled to reach that conclusion. Because DHS‘s factual findings are supported by substantial evidence, they are determinative. Having received the benefit of expedited entry in exchange for a promise of expedited removal, Vasconcelos is bound by the terms of the program and is not entitled to a hearing. See Gjerjaj, 691 F.3d at 292.
CONCLUSION
For the foregoing reasons, and finding Vasconcelos‘s remaining arguments without merit, the petition is DENIED.
BARRINGTON D. PARKER
UNITED STATES CIRCUIT JUDGE