Submitted: February 22, 2012
Before: LEVAL, SACK, and HALL, Circuit Judges.
Petitioner, a native and citizen of Albania, seeks review of a Order of Removal issued on January 24, 2011, by U.S. Immigration and Customs Enforcement ("ICE"). Petitioner entered the United States through the Visa Waiver Program ("VWP"), using a fraudulent Italian passport. Petitioner signed a waiver, as all VWP participants are required to do, agreeing to waive "any right . . . to contest, other than on the basis of an application for asylum, any action for removal of the alien." 8 U.S.C. § 1187(b)(2). Petitioner was served with the now-contested Order of Removal six years after she initially entered the country under the auspices of the VWP, which allows certain foreign citizens expedited entry into this country for a period of 90 days in exchange for a waiver of rights. During her time here, Petitioner unsuccessfully sought asylum but also married a United States citizen, which led her to apply for an adjustment of status. That adjustment of status application, however, was denied because Petitioner became subject to the Order of Removal. Petitioner argues that the adjustment of status application should be adjudicated before she is ordered removed and that she should have the benefit of full removal proceedings. We hold that Petitioner knowingly and voluntarily waived her right to contest her removal on any basis other than asylum, and having participated in her asylum-only proceeding, Petitioner may not contest removal on the ground that she filed an adjustment of status application after she overstayed the time she was authorized to be in this country. In so holding, we join our sister circuits who have considered this issue and have all concluded that a VWP participant may not contest his or her removal on the basis of an adjustment of status application filed after the 90-day period during which a VWP participant may stay in the country.
Petitioner Daniela Gjerjaj,*fn1 a native and citizen of Albania, seeks review of a Order of Removal issued on January 24, 2011, by U.S. Immigration and Customs Enforcement ("ICE"). Gaining entry into the United States through the Visa Waiver Program ("VWP"), Gjerjaj arrived in January 2005 using a fraudulent Italian passport. As a VWP participant, Gjerjaj had a 90-day window during which she could lawfully remain in the country. And like all VWP participants, she signed a waiver agreeing to waive "any right . . . to contest, other than on the basis of an application for asylum, any action for removal of the alien." 8 U.S.C. § 1187(b)(2). She subsequently applied for asylum, and the matter was referred to an immigration judge, who denied her application. While her appeal of that decision was pending, she filed an adjustment of status application seeking to remain in this country on the grounds that she was married to a United States citizen. After Gjerjaj had exhausted her asylum appeals, she was ordered removed based on her status as a VWP participant who stayed past 90 days and has had an opportunity to participate in asylum-only proceedings. As a result of the removal order, her adjustment of status application was denied. Gjerjaj petitions this Court, requesting full removal procedures. Further, she argues that she was entitled to a decision on the merits of her adjustment of status application, and that the government's issuance of a removal order without a hearing and without consideration of her adjustment of status application amounts to due process and equal protection violations. We hold that Gjerjaj knowingly and voluntarily waived her right to contest her removal on any basis other than asylum, and having had her asylum-only proceeding, Gjerjaj may not now contest removal on the ground that she filed an adjustment of status application after she overstayed the time she was authorized to be in this country. In so holding, we join our sister circuits who have considered this issue and have concluded that a VWP participant may not contest his or her removal on the basis of adjustment of status application filed after the 90-day period during which a VWP participant may stay in the country.
Gjerjaj entered the United States under the VWP in January 2005 using a fraudulent Italian passport bearing the name "Luciana Liberti."*fn2 Using the name Liberti, she signed the Form I-94W, which contains a clause required by statute acknowledging that by participating in the VWP, she waives any right to contest her removal, other than on a basis advanced by way of an asylum application. 8 U.S.C. § 1187(b)(2). The government has produced a copy of the signed I-94W, with the following clause appearing directly below Gjerjaj's signature:
WAIVER OF RIGHTS: I hereby waive any rights to review or appeal of an immigration officer's determination as to my admissibility, or to contest, other than on the basis of application for asylum, any action in deportation.
In March 2005, Gjerjaj filed an application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"), alleging that her husband had been killed by socialists in Albania due to his involvement with the Democratic Party. As a VWP participant, she was referred to an immigration judge ("IJ") for her asylum-only proceedings. The IJ denied her application for relief, finding that she was credible but concluding that she was ineligible for asylum. In April 2009, the Board of Immigration Appeals ("BIA") dismissed Gjerjaj's appeal from that decision, agreeing with the IJ that she had not established eligibility. In December 2009, the Eleventh Circuit denied Gjerjaj's petition for review of the BIA's decision. See Gjergjaj v. U.S. Att'y Gen., 358 F. App'x 98 (11th Cir. 2009) (unpublished).
About four years after she had overstayed the initial 90-day period of authorized time a VWP participant may stay in this country, but before the completion of her asylum proceedings, in April 2009 Gjerjaj married a United States citizen who filed on her behalf an I-130 Petition for Alien Relative. About three months later, the petition was approved, and Gjerjaj applied for adjustment of status. Thereafter the U.S. Citizenship and Immigration Services ("USCIS") denied Gjerjaj's adjustment of status application based on its conclusion that aliens who enter under the VWP and who have been placed in asylum-only proceedings are ineligible to adjust their status even if an immediate relative petition has been approved. Gjerjaj filed a timely motion for reconsideration in December 2010. In January 2011, however, Gjerjaj was served with an order of removal issued by ICE. The removal order was issued on the ground that Gjerjaj had overstayed the period she was lawfully authorized to stay in this country and had waived any right to object to her removal, except in asylum-only proceedings, when she entered the United States through the VWP. After that removal order was issued, USCIS denied Gjerjaj's motion for reconsideration reasoning that Gjerjaj remained in the United States beyond the period of authorized stay for VWP participants and that she was subject to a final order of removal.
Gjerjaj argues that she is not bound by the terms of the VWP because she is not a citizen of one of the select countries whose citizens may enter under that program. Even if she is subject to its terms, she argues that she did not knowingly waive her rights to contest her removal. Finally, she argues that by filing an adjustment of status application, she is entitled to a hearing and decision on that application regardless of her removability. For that reason, she argues, the issuance of ICE's removal order that resulted in USCIS's denial of her application for adjustment of status violated her constitutional rights to due process and ...