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Fraudulent VWP Entrant Bound by VWP Limitations: Ninth Circuit
Practical Law Legal Update w-004-9245 (Approx. 4 pages)
Fraudulent VWP Entrant Bound by VWP Limitations: Ninth Circuit
by Practical Law Labor & Employment
| Law stated as of 12 Dec 2016 • USA (National/Federal) |
In Riera-Riera v. Lynch, the US Court of Appeals for the Ninth Circuit held, in a matter of first impression for the court, that a foreign national who fraudulently enters the US using the Visa Waiver Program (VWP) is bound by its limitations on relief.
On November 28, 2016, in Riera-Riera v. Lynch, the US Court of Appeals for the Ninth Circuit held, in a matter of first impression for the court, that a foreign national who fraudulently enters the US using the Visa Waiver Program (VWP) is bound by its limitations on relief. This decision follows three other circuit courts and the Board of Immigration Appeals (BIA). ( (9th Cir. Nov. 28, 2016).)
Harold Riera-Riera, a Peruvian citizen, fraudulently entered the US under an Italian passport to gain the benefits of the VWP. The VWP allows some aliens, who are nationals of certain countries, including Italy but not Peru, to enter the US without a visa. The VWP places restrictions on people entering under the program, including requirements that they:
- Present a valid passport from a qualifying country that offers reciprocal rights to US citizens.
- Present a return ticket for departure from the US within 90 days.
- Agree:
- that the immigration officer's determination about their admissibility to the US is not subject to review or appeal; and
- not to contest, other than through an asylum application, any action for their removal.
Riera-Riera did not depart after 90 days and remained in the US indefinitely. The Department of Homeland Security eventually ordered Riera-Riera's removal under the VWP and referred him to an immigration judge only for asylum proceedings. Riera-Riera argued (before the judge and the BIA) that since he had not properly entered the US via the VWP, he should not be restricted to the program's requirements and the judge should determine his removability as well as his petition for adjustment of status.
Both the immigration judge and the BIA concluded that there was no jurisdiction under the VWP to consider his non-asylum claims. Riera-Riera filed a petition for review of the BIA's refusal to consider his application for adjustment of status.
The Ninth Circuit:
- Denied Riera-Riera's petition and found that the BIA properly refused to consider his application for adjustment of status.
- Noted that:
- the Second, Seventh, and Eighth Circuits have all held that an ineligible alien who fraudulently enters under the VWP is bound by the VWP's limitations, including its waiver of any challenge to deportation other than asylum (See Shabaj v. Holder, 602 F.3d 103, 105–06 (2d Cir. 2010); Bayo v. Napolitano, 593 F.3d 495, 501–02 (7th Cir. 2010); Zine v. Mukasey, 517 F.3d 535, 542–43 (8th Cir. 2008));
- the BIA has ruled that the VWP's restrictions bind ineligible aliens who enter the country using fraudulent travel documents (In re Kanagasundram, 22 I. &. N. Dec. 963, 964 (BIA 1999));
- the Attorney General issued a rule, relied on by all circuits, that aliens who "present[ ] fraudulent or counterfeit travel documents" will be removed "without referral of the alien to an immigration judge," unless the alien "applies for asylum" (8 C.F.R. § 217.4(a));
- the Seventh Circuit has observed that, "[t]here is little reason to think that Congress would have wanted to confer the benefits of the VWP on ineligible aliens while sparing them the costs of entering under the [VWP]" (Bayo v. Napolitano, 593 F.3d 495, 501–02 (7th Cir. 2010)); and
- the Ninth Circuit has previously held that the VWP procedure, requiring any alien signing the VWP forms to give up any right to challenge removal, except on asylum grounds, if he overstays the grant of time permitted by the VWP, is neither complex nor unfair (Bingham v. Holder, 637 F.3d 1040, 1047 (9th Cir. 2011)).
- Found that:
- BIA properly refused to consider Riera-Riera's application for adjustment of status;
- the refusal to consider Riera-Riera's application for adjustment of status was not a denial of due process; and
- substantial evidence supported the denial of asylum and related relief as well as Riera-Riera's claim under the Convention Against Torture (CAT).