O'Riordan v. Barr , 925 F.3d 6 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1990
DYLAN O'RIORDAN,
Petitioner,
v.
WILLIAM P. BARR,*
Respondent.
ON PETITION FOR REVIEW OF A FINAL ORDER OF
THE DEPARTMENT OF HOMELAND SECURITY
Before
Torruella, Selya, and Barron,
Circuit Judges.
Anthony Marino, with whom Irish International Immigrant
Center was on brief, for petitioner.
Joanna L. Watson, Trial Attorney, Office of Immigration
Litigation, with whom Chad A. Readler, Acting Assistant Attorney
General, Civil Division, and Anthony P. Nicastro, Assistant
Director, Office of Immigration Litigation were on brief, for
respondent.
May 22, 2019
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
William P. Barr has been substituted for former Attorney General
Jefferson Sessions, III, as the respondent.
BARRON, Circuit Judge. Dylan O'Riordan is an Irish
citizen who had entered this country as a child and had been living
in the United States for more than seven years when immigration
officials apprehended him. The government charged him with having
been admitted to this country via the Visa Waiver Program ("VWP")
and having stayed here beyond the 90-day period permitted by the
visa that he secured through that program. He now petitions for
review of the administrative order of removal that was issued in
accord with the terms of the VWP, after the government found that
he had been admitted to the United States through the VWP as a
child and then overstayed his visa. Although O'Riordan's
circumstances are most unfortunate, we conclude that we must deny
the petition.
I.
The VWP allows "a qualifying visitor [to] enter the
United States without obtaining a visa, so long as a variety of
statutory and regulatory requirements are met." Bradley v. Att'y
Gen., 603 F.3d 235, 238 (3d Cir. 2010) (citing 8 U.S.C. § 1187).
The VWP is a reciprocal waiver program, which means that "[a]n
alien may not be provided a waiver [of the visa requirement from
the United States government] under the program unless the alien
has waived 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). The VWP allows the alien visitor, per their
- 2 -
visa, to remain in the United States for 90 days after entry. Id.
§ 1187(a)(1).
Pursuant to the VWP, an alien must sign an "I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form." 8 C.F.R.
§ 217.2(b)(1). The alien must also complete a travel authorization
under the Electronic System for Travel Authorization ("ESTA").
See 8 C.F.R. § 217.5. On this ESTA form, there are fields to
indicate whether the visitor has "Waived Rights" and whether the
form was filled out by a "Third Party."
There is no I-94W waiver form related to O'Riordan's
case in the record. The record does contain an ESTA form
concerning his entry into the United States. That form, which is
dated June 10, 2010, indicates "Y" in the field "Waived Rights"
and "Y" in the field "Third Party Indicator." O'Riordan was twelve
years old as of that date. At that time, his parents were both
lawful permanent residents of the United States.
During the more than seven years in which O'Riordan
thereafter lived in the United States, he met Brenna Blanchette,
a United States citizen. He became engaged to her in January 2017
while she was pregnant with his child, who was born in this
country.
On September 18, 2017, O'Riordan, then 19 years of age,
was taken into Department of Homeland Security ("DHS") custody.
The next day, he was served with a final administrative order of
- 3 -
removal. That order indicated that he had waived his right "to
contest, other than on the basis of an application for asylum, any
action for [his] removal" through the VWP.
In acknowledging service of the final order of removal,
O'Riordan declined to contest his removal on certain grounds, such
as U.S. citizen or lawful permanent resident status, entry through
means other than the VWP, or compliance with the terms of the VWP.
Instead, he indicated that he wished to contest his removal on
"Other" grounds and explained that "I came here as a child not
knowing the consequences with my parents. I now have a [U.S.
citizen] child here in the United States who needs me." He also
indicated that he "wish[ed] to request Asylum, Withholding or
Deferral of Removal."
O'Riordan petitioned this court for review of his
removal order on October 6, 2017. The same day, O'Riordan moved
in this Court to stay his removal. That motion was denied.
O'Riordan then moved for reconsideration, but that motion was
denied as well.
Because O'Riordan indicated that he intended to seek
asylum or withholding of removal, he was put into withholding-only
removal proceedings on October 6, 2017. He moved to terminate
those proceedings on October 18, 2017. He explained that he did
"not understand[] the legal definitions of 'withholding' and
'deferral'" and so "checked the box" to seek such relief on the
- 4 -
understanding that doing so would allow him to seek review of his
removal.
O'Riordan's petition for review in our Court and the
withholding-only proceedings were both pending when the government
moved to dismiss O'Riordan's petition for review for lack of
jurisdiction. The government did so on the ground that the
administrative order of removal was not final because the
withholding-only proceedings were ongoing.
The withholding-only proceedings terminated while the
government's motion to dismiss the petition was pending before us.
As a result, the government moved to withdraw its motion to dismiss
for lack of jurisdiction. On November 9, 2017, we granted the
government's motion to withdraw its motion to dismiss.
On November 28, 2017, DHS cancelled and reissued
O'Riordan's prior Final Order of Removal. O'Riordan did not file
a petition for review of that order. Throughout this period,
O'Riordan was detained pending his removal.
On December 18, 2017, after the entry of his final order
of removal, O'Riordan and Blanchette were married in a prison
chapel. O'Riordan was ultimately removed to Ireland on February
15, 2018.
II.
We first address our jurisdiction to review O'Riordan's
petition. We begin with the issue of whether we have jurisdiction
- 5 -
under Article III of the federal Constitution. We then consider
whether we have statutory jurisdiction.
The constitutional issue concerning our jurisdiction
arises because, after O'Riordan's removal to Ireland, he made
certain statements to the press in which he appeared to indicate
that he did not intend to return to the United States. Because
"every federal appellate court has a special obligation to satisfy
itself . . . of its own jurisdiction," we ordered O'Riordan to
show cause why the case should not be dismissed as moot. Arizonans
for Official English v. Arizona, 520 U.S. 43, 73 (1997) (quoting
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986))
(internal quotation marks and citations omitted).
O'Riordan, in response to our order, stated his interest
in returning to the United States and explained that we "continue[]
to have the power to grant effectual relief by vacating his order
of removal and ordering the government to provide a
constitutionally sufficient hearing in which Dylan may pursue
relief." The government, which bears the burden of establishing
mootness, see Am. Civil Liberties Union of Mass. v. U.S. Conference
of Catholic Bishops, 705 F.3d 44, 52 (1st Cir. 2013), has made no
attempt to rebut O'Riordan's representations to us regarding his
intentions to return to the United States or otherwise argue that
O'Riordan's case is moot. In light of O'Riordan's representations
about his intentions, and our power to grant O'Riordan "effectual
- 6 -
relief" -- by vacating the removal order and thus permitting him
to return to the United States and challenge his removal in the
type of hearing that he contends he is entitled to receive as a
constitutional matter -- his case is not moot. See Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992).
We must also consider the question of whether we have
statutory jurisdiction. The statutory issue concerning our
jurisdiction arises because "petition[s] for review must be filed
not later than 30 days after the date of the final order of
removal." 8 U.S.C. § 1252(b)(1). O'Riordan timely petitioned for
review of the September 19, 2017 removal order. O'Riordan did
not, however, petition -- timely or otherwise -- for review of the
removal order that was subsequently issued on November 28, 2017.
Despite this wrinkle concerning the timeliness of
O'Riordan's petition, the parties agree that we do have statutory
jurisdiction. O'Riordan contends that we should not treat the
order issued in November as if it were a distinct removal order at
all, given what the record shows about how the government itself
treated it. He further contends that we may treat the September
order as final, despite the fact that the withholding of removal
proceedings were pending at the time of the petition from the
order. The government, for its part, contends that we may treat
the petition for review from the September order as timely, even
though the government contends that order was not final. The
- 7 -
government contends that we may deem the petition for review to
have ripened upon the issuance of the subsequently issued removal
order.
We have not previously decided whether a prematurely
filed petition for review from an order of removal may be deemed
timely on a ripening theory, and other circuits are divided on
that issue. Compare Jimenez-Morales v. U.S. Att'y Gen., 821 F.3d
1307, 1308 (11th Cir. 2016) (adopting a ripening theory for
premature petitions for review), Hounmenou v. Holder, 691 F.3d
967, 970 n.1 (8th Cir. 2012) (same), Khan v. Att'y Gen., 691 F.3d
488, 493 (3d Cir. 2012) (same), Herrera-Molina v. Holder, 597 F.3d
128, 132 (2d Cir. 2010) (same), and G.S. v. Holder, 373 F. App'x
836, 843 (10th Cir. 2010) (same), with Moreira v. Mukasey, 509
F.3d 709, 713 (5th Cir. 2007) (rejecting a ripening theory for
premature petitions for review), Jaber v. Gonzales, 486 F.3d 223,
228-30 (6th Cir. 2007)(same), and Brion v. INS, 51 F. App'x 732,
733 (9th Cir. 2002) (same). Nor are we aware of a case that has
applied a ripening theory in a case in which the assertedly non-
final order from which the petition for review was sought was
purportedly cancelled and a new removal order was subsequently
issued.
However, we need not resolve the precise ground on which
we may treat this petition for review to be timely. Given our
conclusion that the petition for review clearly must be denied on
- 8 -
the merits, we may simply proceed on the assumption that our
statutory jurisdiction is secure, without resolving definitively
that it is. See Morris v. Sessions, 891 F.3d 42, 48 (1st Cir.
2018).1
III.
We begin with O'Riordan's contention that the government
failed to present sufficient evidence of his removability. He
contends that the proper inquiry concerns whether "clear,
unequivocal, and convincing evidence," Woodby v. INS, 385 U.S.
276, 277 (1966), establishes that he is subject to removal pursuant
to 8 U.S.C. § 1187 for having overstayed his visa after having
been admitted to the United States pursuant to the VWP.
We may assume that the Woodby standard applies in a case
like this one -- a proposition that the government disputes -- and
that our review is thus for substantial evidence, see Urizar-
Carrascoza v. Holder, 727 F.3d 27, 32 (1st Cir. 2013), as neither
party contends otherwise. We may do so because we conclude that,
1We do note that, although the parties agree that we have statutory
jurisdiction, the divergent rationales they provide demonstrate
that they differ as to which order we are reviewing pursuant to
O'Riordan's petition. O'Riordan contends that the operative order
of removal is, and has always been, the September 19, 2017 order
of removal. The government, by contrast, contends that order was
canceled and replaced by the November 28, 2017 order. Because our
reasons for denying O'Riordan's petition for review on the merits
are the same regardless of which order forms the basis of our
jurisdiction, we need not resolve this issue either.
- 9 -
even under Woodby, there is no basis in the record for vacating
the administrative order of removal on evidentiary grounds.
In reaching this conclusion, we note that O'Riordan does
not dispute that the record shows that, upon service of the
government's Notice of Intent to Issue a Final Administrative
Removal Order, he completed a form in which he indicated that he
did not intend to contest removal on the basis of threshold factual
issues that would undermine the basis for finding him removable.
These issues included his being a U.S. citizen or a lawful
permanent resident, his not having entered this country through
the VWP, or his being in compliance with the terms of his
admission. Nor does he dispute that the form provided an option
whereby O'Riordan could select "Other" and provide a basis for
contesting his removability, to which he responded by explaining
only that he came to the United States as a child without
understanding the consequences and that he now has a U.S. citizen
child dependent. We note, too, that the record contains travel
documents that show that O'Riordan flew to the United States with
his mother at the time that the ESTA form that is in the record
was filled out.
To make the case that we are nonetheless compelled on
this record to find that the government has not met its evidentiary
burden as to his removability, see Urizar-Carrascoza, 727 F.3d at
31 (explaining that, when reviewing for substantial evidence, "we
- 10 -
uphold [factual] determinations unless 'any reasonable adjudicator
would be compelled to conclude to the contrary'" (quoting 8 U.S.C.
§ 1252(b)(4)(B))), O'Riordan points to the fact that there is no
I-94W form pertaining to him in the record and to certain documents
in the record that contain varying dates as to when he entered the
United States as a child. But, in light of the evidence described
above concerning the circumstances of O'Riordan's entry, his own
representations on the form that he filled out when given notice
of his administrative removal based on his having overstayed the
visa under the VWP, see Lima v. Holder, 758 F.3d 72, 81 (1st Cir.
2014), and the fact that he makes no contention that he in fact
entered the country through any means other than the VWP, those
features of the record that he highlights in support of his
position do not suffice to permit us to conclude that the
administrative order is not supportable as an evidentiary matter.
IV.
We thus turn to O'Riordan's procedural due process
challenge to the removal order under the Fifth Amendment to the
United States Constitution. For purposes of this challenge,
O'Riordan appears to accept that the record supports the conclusion
that he was admitted into the United States pursuant to the VWP,
that the waiver of the right to contest removal that is required
of those who are admitted pursuant to the VWP was effected on his
- 11 -
behalf in his case, and that he then overstayed his visa in
violation of the terms of the VWP.
Nevertheless, O'Riordan contends that, as a matter of
constitutional procedural due process, his administrative order of
removal must be vacated because he was permitted to contest it
only on certain limited grounds and then only in a removal
proceeding that he characterizes as one in which there was not
"any hearing at all." In pressing this contention, he does not
dispute that the right he claims to have -- the right to contest
his removal on other grounds and in what he contends would qualify
as a "hearing" -- is subject to waiver. But, he contends, the
waiver of any right to such greater process than was effected in
accord with the VWP is not enforceable in his case, because, at
the time of his admission into this country through the VWP, he
was a mere child and thus could not have knowingly and
intelligently waived any such right. For, as he correctly notes,
a person ordinarily must knowingly and intelligently waive a
federal constitutional right -- such as a right to the process due
under the Fifth Amendment -- in order for that waiver to bar that
person from asserting that right. See Johnson v. Zerbst, 304 U.S.
458, 464 (1938); see also Bayo v. Napolitano, 593 F.3d 495, 503-05
(7th Cir. 2010); Nose v. Att'y Gen., 993 F.2d 75, 79 (5th Cir.
1993).
- 12 -
The government asserts in response that O'Riordan was
not entitled under Mathews v. Eldridge, 424 U.S. 319, 335 (1976),
to more process than he received, and, we note, O'Riordan does not
address Mathews until his reply brief. See United States v.
Freitas, 904 F.3d 11, 22 (1st Cir. 2018) ("[A]n argument raised
for the first time in a reply brief comes too late to be preserved
on appeal." (internal quotation and alteration omitted)). Nor
does he spell out the additional procedural protections that he
claims he was entitled to receive.
But, even assuming both that the waiver's enforcement
would deprive O'Riordan of a right to a type of removal proceeding
to which he claims that he otherwise would have been entitled as
a matter of constitutional due process and that the record fails
to establish that he did knowingly and intelligently make a waiver
of his right to such a proceeding, the question remains whether
O'Riordan has shown prejudice from the due process violation that
he alleges. See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 7 (1st
Cir. 2008) ("A petitioner can carry his burden only by a specific
showing that the challenged practice likely affected the result of
the hearing."). O'Riordan appears to accept that he needs to show
prejudice to succeed on his due process challenge. Yet, his
challenge comes up short on that score, as he fails either to
establish that he is entitled to what he refers to as a
- 13 -
"presumption of prejudice" or to make a sufficient particularized
showing of prejudice.
A.
We begin with O'Riordan's contention that he is entitled
to a presumption of prejudice, such that he need not make a
particularized showing of prejudice. We may assume that the
government has not rebutted any such presumption, for, as we
explain, we find that his attempt to establish that such a
presumption applies is unpersuasive.
O'Riordan relies in making this argument for
presumptive prejudice on Roe v. Flores-Ortega, 528 U.S. 470
(2000), which holds that a "denial of [an] entire judicial
proceeding itself . . . demands a presumption of prejudice" for
purposes of a Sixth Amendment ineffective assistance of counsel
claim, id. at 483, and on Hernandez v. Reno, 238 F.3d 50, 57 (1st
Cir. 2001), which addressed Flores-Ortega in the context of
immigration proceedings. In Hernandez, we considered an alien's
challenge to a denial by the Board of Immigration Appeals ("BIA")
of a motion to reopen that was based on the contention that the
alien's counsel had provided ineffective assistance by failing to
appeal to the BIA from the immigration judge's deportation order.
Id. at 53.
O'Riordan points out that, although Hernandez rejected
the petitioner's due process challenge in that case, it addressed
- 14 -
Flores-Ortega by noting that "[o]ur concern in the immigration
context is not with the Sixth Amendment but with preserving a fair
opportunity to have a . . . claim considered . . . ." Id. at 57.
He also rightly notes that, in Hernandez, we went on to explain
that the alien in that case had been given "a fair opportunity to
present his waiver case to the immigration judge," which included
"a hearing, substantial testimony, and a reasoned decision." Id.
at 56 (emphasis in original). O'Riordan contends, based on these
statements, that Hernandez shows that he is entitled to at least
a presumption that he was prejudiced by being denied such process,
due to the type of proceedings that were used to effect his
removal.
But, in Hernandez, we expressly declined to "extend[]
the prejudice per se notion from criminal convictions to review of
waiver denials in deportations," id. at 57, that we would apply
in the event of a "waiver" of a requested appeal from a criminal
conviction due to the ineffective assistance of counsel, see
Flores-Ortega, 528 U.S. at 483. Moreover, in declining to extend
Flores-Ortega in that respect, we made no holding -- nor even
offered any dicta -- as to when, if ever, a presumption of
prejudice for a claimed lack of constitutionally adequate process
arising from the use of summary process in the immigration context
might be appropriate. See Hernandez, 238 F.3d at 56-57.
- 15 -
Thus, Hernandez does not justify, much less require, the
conclusion that the logic of Flores-Ortega must be extended to the
immigration context, such that we must presume that the waiver's
enforcement in O'Riordan's case prejudiced him by depriving him of
a right to more than the process that he received. That is so,
even if we assume both that the waiver's enforcement would deprive
O'Riordan of the greater (though unspecified) process that he
contends he is entitled to as a matter of constitutional due
process and that the presumption of prejudice that he contends
that we must apply has not been overcome here.
O'Riordan does note that the Supreme Court has observed
since we decided Hernandez that removal is a "severe 'penalty,'"
Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (quoting Fong Yue
Ting v. United States, 149 U.S. 698, 740 (1893)), and that the
"right to remain in the United States may be more
important . . . than any potential jail sentence," 3 Bender,
Criminal Defense Techniques § 60A.01 (1999) (quoted in INS v. St.
Cyr, 533 U.S. 289, 322 (2001)). But, those statements were not
made in connection with due process challenges to immigration
proceedings. They thus do not suffice to show that Flores-Ortega
must be extended in a way that Hernandez itself does not require.
Nor does O'Riordan develop any other argument as to why he is
entitled to a presumption of prejudice.
- 16 -
B.
We turn, then, to O'Riordan's assertion that he can make
a particularized showing of prejudice. He relies on either of two
grounds to do so, notwithstanding that he did not mention either
one in filling out the form that he was given upon being served
with the Notice of Intent to Issue a Final Administrative Removal
Order. We find neither contention persuasive.
1.
O'Riordan contends first that, "[b]ut for the order of
removal and his detention, [he] would be eligible to adjust his
status to that of a lawful permanent resident" as the "son of
lawful permanent resident parents and the spouse of a U.S.
citizen[.]" He thus contends that -- because he did not knowingly
and intelligently make the waiver of his right to more process
than he received, which he contends includes the right to contest
his removal on grounds precluded by the enforcement of the
waiver -- he was prejudiced by having been denied the opportunity
to contest his removal on the basis of his eligibility to adjust
his status, as that is a ground that he asserts otherwise "would
be" available to him to contest his removal.
We start with the prejudice claim that O'Riordan makes
based on the lawful permanent resident status of his parents. They
had that status at the time of his admission to the United States
through the VWP, and nothing in the record indicates that they
- 17 -
fell out of that status at any point. O'Riordan thus contends
that -- but for the waiver's enforcement -- he would be eligible
to apply for adjustment of status under 8 U.S.C. § 1255(c)(4).
But, § 1255(c)(4) provides that individuals admitted
under the VWP may not apply for adjustment of status except on the
basis of their relationship to an "immediate relative," id., which
8 U.S.C. § 1151(b)(2)(A)(i) defines as, in relevant part, U.S.
citizen parents. As O'Riordan makes no argument, at least with
respect to his constitutional challenge, that he is not an
individual admitted under the VWP or that his parents are U.S.
citizens, we do not see how he would have been eligible to apply
for adjustment of status on the basis of his relationship to his
parents at the "hearing" that he claims he was constitutionally
entitled to receive but was not given.
We turn, then, to the prejudice claim that O'Riordan
makes based on the U.S. citizenship status of his wife. Here, the
problem with his contention is somewhat different. The record
shows that O'Riordan was not married to her at the time of the
issuance of the administrative order of removal that he now seeks
to have vacated. Thus, he could not have contested his removal on
the basis of his relationship to her at that time. 8 U.S.C.
§§ 1151(b)(2)(A)(i), 1255(c)(4). Yet, he makes no argument as to
why the decision to afford him a "hearing" at which he could have
contested removal on more grounds than he was permitted would have
- 18 -
ensured that he would have been married to her and thus that he
could have then contested his removal at that hearing on that
basis.
2.
O'Riordan separately contends that he can make a
particularized showing of prejudice by asking us to focus on the
moment at which the choice was made to have him admitted into the
country through the VWP. He notes that, at that time, he was a
child of lawful permanent residents of this country, and he points
out that his parents could have, at that time or thereafter,
"petitioned" for his admission independent of the VWP on the basis
of their familial ties to him.
But, he points out, his parents may not now similarly
petition for his admission to this country on that basis, in light
of 8 U.S.C. § 1255(a)(2), precisely because he was admitted into
this country through the VWP and then overstayed his visa. Thus,
he contends, due to the waiver's enforcement, and the resulting
administrative removal that triggered the bar to his admission to
the United States that remains in place under 8 U.S.C.
§ 1255(a)(2), he is worse off than he would have been with respect
to his ability to obtain admission to the United States than if he
had not been admitted pursuant to the VWP at all. Accordingly, he
contends, in this way, he can show the requisite prejudice from
- 19 -
the deprivation of process that he claims that he was subjected to
by virtue of the issuance of the administrative order of removal.2
The government counters this contention on the basis of
Bayo, 593 F.3d at 506, and Bradley, 603 F.3d at 240-41. The
circuit court in each of those cases determined that an alien
potentially could show prejudice if the alien could have exercised
the option of not entering through the VWP and, by doing so,
obtained admission into the United States through some other means
that would have enabled the alien to forge a relationship that
would have supplied a ground for contesting removal -- such as by
seeking adjustment of status based on that relationship. See Bayo,
593 F.3d at 506; Bradley, 603 F.3d at 240-41. The prejudice, the
court went on to explain in each case, would then arise from the
alien having been denied -- due to the enforcement of the
waiver -- the opportunity to contest the administrative order of
removal on the basis of that relationship. See Bradley, 603 F.3d
at 241; Bayo, 593 F.3d at 506.
2 In pointing out that, in consequence of 8 U.S.C. § 1255(a)(2),
he is now barred from obtaining adjustment of status so long as
the 10-year bar on his admissibility into the United States remains
in place, O'Riordan does not argue that, wholly apart from the
procedural due process challenge that he brings, it is
constitutionally impermissible to impose such a ten-year bar on
alien adults who first entered this country through the VWP years
earlier as children with their family and thus might not have been
aware of their immigration status during the years that followed
in which they lived in this country and developed ties to it.
- 20 -
In each case, however, the circuit court determined that
the claim of prejudice was too speculative. See Bradley, 603 F.3d
at 240; Bayo, 593 F.3d at 506. The problem that each court
identified inhered in the fact that it was highly uncertain that
the relationship on which the eligibility for adjustment of status
would have been based would have been forged at all, absent the
alien first having been admitted to the country through the VWP.
See Bradley, 603 F.3d at 240; Bayo, 593 F.3d at 506.
O'Riordan is right that, unlike in either Bayo or
Bradley, we need not speculate in O'Riordan's case whether, if he
had not been admitted into this country through the VWP, he would
have forged a relationship through which he then could have been
eligible for admission to this country. The relationship that
would provide the basis for his eligibility would be the one that
he had with his parent, who was a lawful permanent resident at the
time of his admission to this country as a child through the VWP
and thereafter. See 8 U.S.C. § 1153(a)(1).
This distinction notwithstanding, O'Riordan still has
failed to show how the fact that his parents could have chosen not
to seek his admission through the VWP is relevant to his contention
that he was prejudiced by the deprivation of process that he
identifies. A necessary premise of the prejudice claim addressed
in Bayo and Bradley was that the alien petitioner might not have
- 21 -
entered this country through the VWP in the first place. It is
no less a necessary premise of O'Riordan's related prejudice claim.
But, that premise was plausible in Bayo and Bradley
precisely because the alien petitioner claimed in each case that
he had not made a knowing and intelligent waiver of the process
rights that the VWP required him to make. That premise is not
similarly plausible here.
O'Riordan appears to accept -- at least for purposes of
his constitutional challenge -- that one of his parents did make
the choice to seek his admission, as a child, through the VWP.
O'Riordan does not explain how his inability to knowingly and
intelligently effect the waiver that his parent made on his behalf
at that time bears on the choice that the parent made to seek his
admission through the VWP at that time. Thus, we do not see what
reason we have to posit an alternative scenario for purposes of
assessing prejudice -- such as was considered in Bayo and
Bradley -- in which he would not have entered this country through
the VWP and thus might be thought to have been prejudiced by having
been removed through the administrative proceeding afforded to
those who have been admitted in that way. Accordingly, this more
particularized ground for showing prejudice necessarily fails.
V.
The petition for review is denied.
- 22 -