Before: FEINBERG, B.D. PARKER, and WESLEY, Circuit Judges.
Petition for review of an October 1, 2008 removal order issued by United States Immigration and Customs Enforcement and appeal from an order of the United States District Court for the Southern District of New York (Rakoff, J.) entered on March 28, 2009, dismissing Petitioner's civil action challenging the denial of his Application to Adjust Status to that of a Lawful Permanent Resident.
Petitioner Giorgio Galluzzo, a native and citizen of Italy, seeks review of an October 1, 2008 Order of Removal issued under § 217 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1187. U.S. Immigration and Customs Enforcement ("ICE") issued the removal order without affording Galluzzo a hearing on the ground that Galluzzo waived any right to be heard when he entered the United States through the Visa Waiver Program ("VWP") established by § 1187. Galluzzo objects that he did not waive his right to a hearing and that his due process rights were therefore violated by the issuance of the removal order without a prior hearing. Additionally, Galluzzo appeals from an order of the United States District Court for the Southern District of New York (Rakoff, J.) entered on March 28, 2009, dismissing for lack of jurisdiction Galluzzo's civil action challenging the denial of his I-485 application to adjust his immigration status.
For the reasons stated below, we find that, in the absence of evidence of a waiver, Galluzzo's due process rights were violated by his failure to receive a hearing. We REMAND to allow the Department of Homeland Security to determine whether Galluzzo was substantially prejudiced by this violation. As to the district court's judgment, we AFFIRM.
On April 12, 1995, Galluzzo entered the United States from Italy. Galluzzo concedes that he entered the United States on a ninety-day tourist visa issued through the VWP, which permits qualified visitors from certain countries to enter the United States without applying for a standard visa. See 8 U.S.C. § 1187(a). There is little evidence in the record, however, related to Galluzzo's entry; the record contains only a copy of Galluzzo's Italian passport and a copy of the front page of Galluzzo's Form I-94W Departure Record, filled out with his name and entry date in Italian.
Although the Government submits that Form I-94W contains a waiver provision stating that a VWP entrant waives his right to a hearing to contest removal, the Government did not submit a Form I-94W waiver into the record. Nor, more importantly, has the Government produced a signed waiver executed by Galluzzo waiving his right to contest removal.
Galluzzo stayed well beyond the permitted ninety days. Approximately three years after his entry, Galluzzo began attempting to adjust his immigration status. On January 13, 1998, Galluzzo's employer filed an Application for Employment Certification on Galluzzo's behalf. Once the Department of Labor approved that application, Galluzzo's employer then filed a Form I-140 Immigrant Petition for Alien Worker on Galluzzo's behalf; the former Immigration and Naturalization Services approved that petition on November 21, 2001. On January 10, 2002, Galluzzo then filed a Form I-485 Application to Register Permanent Resident or Adjust Status.
On November 25, 2008, Galluzzo attended what he believed to be a second interview related to his I-485 Application. Upon arrival, however, Galluzzo learned that his I-485 Application had been denied on May 24, 2007. The denial decision informed Galluzzo that U.S. Citizenship and Immigration Services ("USCIS") found him ineligible for an adjustment of status. The decision explained that an alien's willful misrepresentation renders him ineligible for a visa and concluded, "It is clear that as a result of your blatant ...