Case Information
1308 v. Lynch In the
United States Court of Appeals
For the Second Circuit
________
August Term, ag R UI G ILBERTO E NES DE V ASCONCELOS ,
Petitioner ,
v. L ORETTA E. L YNCH , U NITED S TATES A TTORNEY G ENERAL , Respondent.
________ Petition Review Final Order Department Homeland
Security
________ Argued: May Decided: November ________
Before: K EARSE J ACOBS , P ARKER , Circuit Judges . ________
Rui Gilberto Enes de Vasconcelos, a citizen Portugal native Angola, petitions for review a removal order issued by Department Homeland Security without hearing on the ground waived right contest removal submitting via Electronic System for Travel Authorization (“ESTA”) an application participate Visa Waiver Program (“VWP”), subsequently entering United States pursuant program. makes available online 94W Nonimmigrant Waiver Arrival/Departure Record Form, which memorializes terms contains certification applicant waives right hearing. We are asked decide establish an record showing petitioner ESTA thereby certified waiver, whether, Vasconcelos urges, must produce physically signed 94W. We hold an sufficient establish waiver. Because the administrative supports agency’s finding hearing submitting ESTA entering States pursuant VWP, petition DENIED.
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P AUL B. G ROTAS New York, N.Y., Petitioner. J AMIE D OWD (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Anthony P. Nicastro, Acting Assistant Director, Tracey N. McDonald, Trial Attorney, Office Immigration Litigation, Department Justice, Washington, D.C., brief ), Respondent.
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B ARRINGTON D. P ARKER Circuit Judge : Visa Waiver Program (“VWP”) allows eligible citizens
and nationals of designated countries to visit the United States for up to ninety days without obtaining visa, provided they agree to waive any right to contest removal than by seeking asylum. 1187(a), (b)(2). Prior to the Department Homeland Security (“DHS”) required applicants to complete and physically sign the I Nonimmigrant Waiver Arrival/Departure Record Form, which memorializes terms and contains certification applicant waives right to hearing. In response legislation designed modernize strengthen security VWP, DHS developed Electronic System Travel Authorization (“ESTA”), makes 94W available online enables applicants receive an automated determination eligibility advance travel.
Rui Gilberto Enes de Vasconcelos ordered removed by DHS without benefit hearing ground waived right challenge removal submitting an ESTA application subsequently entering pursuant VWP. We are asked decide establish waiver record showing petitioner an thereby certified waiver, whether, as urges, must produce physically signed 94W. We hold sufficient evidence waiver. Because administrative supports agency’s finding hearing submitting ESTA entering States pursuant VWP, petition DENIED. ‐ 1308
BACKGROUND
Vasconcelos citizen Portugal native Angola who has resided in United States since 1989. He last entered the country on June 25, at port at Champlain, New York on Canada United States border. Although circumstances his admission are disputed, an computer ‐ generated indicates that, approximately two months earlier, he submitted via an participate in VWP, he provided biographical, passport, information necessary determine eligibility. also contains “N” notation next field “Third Party Indicator” “Y” notation next field “Waived Rights,” reflecting Vasconcelos personally filled out submitted form certified that, by participating program, he right challenge removal except by seeking asylum. Admin. R. at 3.
In October 2014, while incarcerated at Nassau County Correctional Center East Meadow, New York failing pay child support, interviewed immigration officer. In connection with interview, he sworn affidavit acknowledging he had last entered United States in June at “New York/Canadian border, bus,” using “Portuguese passport.” Admin. R. at 14. An “I Arrival Record”confirmed had entered on June 25, “Visa Waiver/Tourist (WT)” with admission expiration date September Admin. 44. Based this information, immigration officer concluded had entered States Champlain, New York June “as non immigrant Waiver Tourist (WT) Waiver Program (VWP) temporary period exceed September 23,
No. 15 1308 2012” and removable for failing depart date. Admin. R. at 7. On March 27, 2015, served with arrest warrant and order removal reiterated immigration officer’s findings and noted had “waived [his] to contest action for removal, except apply for asylum, having applied for admission [the VWP].” Admin. 12. timely petitioned for review.
DISCUSSION
We have jurisdiction over final orders removal, 8 U.S.C. § 1252(a)(1), and review such orders issued pursuant § purpose determining VWP’s statutory criteria have been satisfied, see, e.g. , Gjerjaj v. Holder , 691 F.3d 288, 292–93 (2d Cir. 2012). We review agency’s factual findings substantial evidence and will set them aside only if “any reasonable adjudicator would be compelled conclude contrary.” Bah v. Mukasey , F.3d 99, (2d Cir. (quoting U.S.C. § 1252(b)(4)(B)). Our consideration questions law law undisputed facts de novo . See Shabaj v. Holder (2d Cir. 2010).
I.
Congress established facilitate international travel tourism, improve relations with friendly nations, reduce administrative burdens result from unnecessary visa processing authorizing Attorney General Secretary State waive visa requirement for nonimmigrant aliens who meet certain statutory requisites. 1187(a); H.R. Rep. 99–682, pt. I, (1986), reprinted in U.S.C.C.A.N. To eligible participate 15 ‐ program, a person must, among other things, a citizen national a designated country who is possession a valid, unexpired passport, does present a threat to national security, promises depart country within ninety days entry. 8 U.S.C. § 1187(a)(1)–(3), (6). [1] Participants also must agree waive any right “to contest, other than on basis for asylum, any action for removal.” Id. § 1187(b)(2). If a VWP entrant fails leave country within ninety ‐ day time frame (or becomes removable some other reason), DHS district director for the jurisdiction which located order him removed without referring him immigration judge hearing. 8 C.F.R. §§ 217.4(b), 1208.2(c)(iv). Because continuously present resident alien has constitutional right pre ‐ removal hearing, e.g. , Landon v. Plasencia , 459 U.S. 21, 32 (1982), acts “linchpin program,” Handa v. Clark , 401 F.3d 1129, 1135 (9th Cir. 2005), ensuring statute accomplishes “Congress’s goal of allowing participants expeditious into but streamlining their removal,” Gjerjaj , F.3d 293.
Before applicants were required present arrival “completed, signed Form I ‐ 94W,” memorializes terms of collects biographical other information necessary determine eligibility. C.F.R. § 217.2(b)(1); Bayo v. Napolitano , (7th Cir. (en banc). 94W also contains certification applicant “hereby waive[s] any right[] . . . contest, than basis for asylum, action deportation.” In Galluzzo v. Holder we held because “we indulge every reasonable presumption against waiver of fundamental constitutional rights,” the government cannot rely solely a person’s status a VWP entrant show a hearing, but rather must offer “explicit evidence of waiver.” 111, 114–15 (2d Cir. (citation omitted) (emphasis removed). A physically signed thus played central role in program’s operation.
In wake of terrorist attacks United States on September 11, 2001, Congress passed Implementing Recommendations of 9/11 Commission Act of 2007, Pub. L. No. 110–53, Stat. 266, order “modernize strengthen security visa program.” Stat. 711(b), Stat. at Unlike visitors who obtain visa at consular post overseas before traveling, participants were screened for entry until they arrived States. Changes Waiver Program Implement Electronic System for Travel Authorization (ESTA) Program, Fed. Reg. 32,440, 32,441–42 (June 9, 2008). As result, thousands were turned away port ‐ annually, “causing significant expense, delay, inconvenience those aliens, other travelers, U.S. government.” Id. 32,442. In addition, security vulnerabilities such system created risk terrorists criminal actors might exploit enter country. Privacy Act 1974; Department Homeland Security/U.S. Customs Border Protection (DHS/CBP)–009 Electronic System Travel Authorization (ESTA) System Records, Reg. 65,414, 65,414 (Nov. 2014). To address these concerns, 9/11 Commission Act requires Secretary Homeland Security, consultation with %29%20FINAL%20%28reference%20only%29.pdf (last visited October 2016). ‐ the Secretary of State, to develop and implement “fully automated electronic travel authorization system . . . to collect such biographical and information the Secretary . . . determines necessary to determine, advance travel, the eligibility of, there exists law enforcement or security risk permitting, the alien travel to United States.” Stat. § 711(d)(1)(E), Stat. at (adding U.S.C. § 1187(h)(3)(A)). Act further provides “each alien traveling [VWP] shall, before applying for admission United States, electronically provide to system” such information. Id. § 711(d)(1)(A)(ii), Stat. at (adding 1187(a)(11)).
Pursuant these directives, DHS developed implemented ESTA, makes I ‐ 94W available online in twenty two languages enables applicants receive an automated determination eligibility prior travel. See Official Application, https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1; Changes Waiver Program Implement Electronic System Travel Authorization (ESTA) Program Fee for Use System, Reg. 32,267, 32,269 (June (“ESTA provide[s] an automated collection information required Form 94W . . . paper form . . . advance travel.”). Under new system, applicants who intend travel air sea must submit receive travel authorization before departing States. Id. 32,267. Applicants who enter land currently need submit ESTA application, but if they have approved ESTA, they bypass requirement completing paper port entry. Frequently Asked Questions, ‐ https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1. Information submitted via ESTA is checked against security and law enforcement databases stored system satisfy ‐ retention requirement. Privacy Act 1974; Department of Homeland Security, U.S. Customs Border Protection – Electronic System for Travel Authorization (ESTA), Systems Records, Fed. Reg. 32,720, 32,720 (June 10, 2008). An authorization travel is valid for two years, until applicant’s passport expires, may used repeatedly during time. C.F.R. § 217.5(d)(1); The Electronic System Travel Authorization: Mandatory Compliance Required Travel Under Waiver Program, Reg. 67,354, 67,354 (Nov. 2008). Although approved ESTA expedites admission process, determination eligibility does not mean person admissible; determination is instead made, under pre ESTA framework, Customs Border Protection officer port entry. § 1187(h)(3)(C)(ii); C.F.R. 217.5(f)(1).
II.
This petition requires us resolve government establish ESTA record. Vasconcelos contends that, Galluzzo government must obtain physically signed 94W, notwithstanding implementation new electronic system. takes view Galluzzo determinative because it addresses burden proof under pre framework and, any event, is “explicit evidence waiver,” because shows thereby certified contest removal. ‐
We agree with the government record is sufficient to establish waiver. Nothing in Galluzzo requires the production of physically signed I 94W, even under pre ‐ ESTA, paper system. On contrary, we reasoned had failed to demonstrate waiver because record was “silent as Galluzzo signed otherwise agreed waive rights contest removal.” Id. (emphasis added); cf. Bradley v. Att’y Gen. , F.3d (3d Cir. 2010) (finding sufficient evidence of waiver where petitioner admitted in a declaration he had signed form, presented it customs officer, and was then admitted into United States, and record contained relevant portion handwritten Form with Bradley’s name and date birth, and stamped date which Bradley admitted). Here, shows personally completed application thereby agreed right hearing. As generated public officials ordinary course their duties, presumed reliable serve competent evidence immigration proceedings. See, e.g. , Felzcerek v. I.N.S. , F.3d 112, (2d Cir. (citing Evid. 803(8) justify reliance on Form 213).
In event, we had no occasion Galluzzo consider what proof waiver would appropriate electronic system, we see no constitutional basis for categorically prohibiting electronic waiver rights. See, e.g. , States v. Luja 88–89, 92–93 (1st Cir. 2006) (rejecting notion defendant’s her jury trial, effected through counsel’s electronic signature, invalid). Indeed, only court appeals consider issue summarily found that ESTA’s electronic waiver valid. See Cho v. Att’y Gen. , F. App’x (11th Cir. (per curiam). We also did not consider Galluzzo implications of 9/11 Commission Act, passed, as noted, to modernize strengthen security of by requiring Secretary “develop implement fully automated electronic travel authorization system,” § 1187(h)(3)(A) (emphasis added), that enables DHS collect from all applicants information necessary determine their eligibility security risk advance of travel, see id. 1187(a)(11). Pursuant Act, DHS has included ESTA certification of waiver – key requirement determining eligibility. Were precluded from relying ESTA’s electronic certification waiver, would be impossible DHS implement system envisioned by Congress. fails persuade us that use electronic certification such one issue here warrants upending statutory framework.
Because our case law does foreclose use electronic waiver, we hold showing that petitioner thereby certified waived hearing sufficient establish waiver. That does not mean, course, invariably conclusive evidence waiver. While records generated by public officials in ordinary course their duties are presumed reliable, presumption rebutted evidence “the sources of information or circumstances indicate lack of trustworthiness,” evidence contradicts or impeaches the record’s contents. E.g. Felzcerek , (quoting Evid. 803(8)). gives us little reason, however, doubt reliability the ESTA record in this case. Although he claims that should not be permitted to rely on a “self serving” computer record, Pet’r’s Br. at 11, fact that record supports government’s position is irrelevant to its reliability.
Unable undermine ESTA itself, Vasconcelos contends that even if he submitted ESTA application he his a hearing, he is not constrained by strictures VWP because he did not gain admission country pursuant program. We recognize Vasconcelos might not be bound his if he did not receive benefit expedited admission. Gjerjaj at (“The offers aliens the benefit expedited entry as quid pro quo exchange waiver rights.”) (internal quotation marks omitted). We believe, however, agency’s determination he entered country pursuant upon his application supported substantial evidence. shows that approximately two months before he was admitted June 2012, affirmed he able gain with “Portuguese passport” alone, Admin. R. Arrival Record indicates he logged arrival “Visa Waiver/Tourist,” Admin.
Vasconcelos’s efforts undercut agency’s finding do not convince us otherwise. He argues could have been approved because missing certain requested information, including foreign address, address United States where would residing, phone number, airline flight information. But because none missing information is statutorily required determine eligibility, unclear whether approval was contingent its inclusion, we cannot say on the basis of these omissions that the application could not have been approved. Vasconcelos also surmises that his in fact was not approved because the record includes the notation “Expired” next the field “Application Status.” Admin. R. at 3. That notation, however, merely reflects that on the date on which record retrieved from DHS’s database (June 2015), more than two years had passed since Vasconcelos’s had been approved. See Privacy Act 1974; Department of Homeland Security, U.S. Customs Border Protection – Electronic System for Travel Authorization (ESTA), Systems Records, Reg. 32,720, 32,724 (June 2008).
Along same lines, Vasconcelos claims he could not have participated in VWP because administrative record does not contain a copy his passport a round trip ticket, both are, in his view, statutory prerequisites participating in program. But we have never required retain proof petitioner satisfied each statute’s numerous requirements participation at time entry. Quite opposite, we have recognized binding person who gains admission even if they were ineligible participate first place. Shabaj at 105–06. At rate, record shows had valid, unexpired passport time entry, includes passport information he confirmed his sworn affidavit able enter using “Portuguese passport.” Admin. And although does indicate that had round trip ticket, Secretary has ‐ 1308 requirement for participants who, like him, enter country by land. § 1187(a)(8); C.F.R. § 217.2(c)(2).
Citing DHS regulations, alternatively asserts that he could not have participated in ESTA because, as person arriving by land, he ineligible use electronic system and required physically sign an I ‐ 94W when he crossed border. provision on which he relies, however, simply states “[a]n applicant arriving land ‐ border port ‐ ‐ will charged fee . . . for issuance Form I ‐ 94W.” C.F.R. 217.2(c)(2). It does prohibit applicants arriving land from submitting beforehand and using submission satisfy I ‐ 94W requirement, which is precisely what DHS regulations permit. Frequently Asked Questions, https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1. lastly relies two portions administrative he believes show he entered using visa, rather than visa waiver tourist. He points first I ‐ Arrival Record and claims only I ‐ 94W used connection with visa entrants. But offers no support this contention, I ‐ provides “[t]his form must be completed all persons except U.S. citizens, returning resident aliens, aliens with immigrant visas Canadian Citizens visiting or transit.” It would appear, then, DHS maintains I I ‐ 94W persons admitted program, so there nothing unusual about presence Indeed, Vasconcelos’s own I Arrival Record contains a field “Visa Class” indicates that he was admitted as a “Visa Waiver/Tourist.” This entry would be nonsensical if VWP entrants were not could not assigned records. Cf. Mokarram v. Att’y Gen. , App’x 950–51 (11th Cir. (per curiam) (observing that petitioner’s “I Departure Record” contained a “WT” notation, indicating that he had been admitted under VWP). also observes that he provided with a Form Notice Rights Request Deposition, states,
“You have right a hearing before Immigration Court to determine you remain States.” Admin. By supplying him with this form, he argues, DHS acknowledged that he had entered country as visitor entitled to hearing, not under VWP. We are not persuaded. When initiating removal proceedings, DHS required statute provide alien with notice rights, including right a hearing before immigration officer. 1229; see Nolasco v. Holder 163–64 (2d Cir. 2011). fact that Vasconcelos provided with standard notice right hearing does not mean could not have previously condition VWP.
While potential irregularities administrative record might cause reasonable adjudicator conclude Vasconcelos did enter pursuant ESTA application, we cannot say reasonable adjudicator would be compelled reach conclusion. Because DHS’s factual findings are supported substantial evidence, they are determinative. Having received benefit expedited exchange promise expedited removal, is bound terms of entitled hearing. Gjerjaj at 292.
CONCLUSION
For foregoing reasons, finding Vasconcelos’s remaining arguments without merit, petition DENIED.
[1] Portugal among thirty six designated countries. C.F.R. 217.2(a).
[2] U.S. Customs Border Protection, Form Nonimmigrant Waiver Arrival/Departure Record, available at https://www.cbp.gov/sites/default/files/documents/%20I 94W%20English%20%2811
[3] U.S. Customs Border Protection, Form Nonimmigrant Waiver Arrival/Departure Record, available at https://www.cbp.gov/sites/default/files/documents/%20I 94W%20English%20%2811 %29%20FINAL%20%28reference%20only%29.pdf (last visited October 2016).