Vaidas Kulberkis v. Atty Gen USA ( 2012 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 12-1025
    ___________
    VAIDAS KULBERKIS,
    Petitioner
    v.
    ATTORNEY GENERAL OF THE UNITED STATES,
    Respondent
    ____________________________________
    Petition for Review of an Administrative Order of
    the Department of Homeland Security
    (Agency No. A205-016-173)
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    November 15, 2012
    Before: RENDELL, ALDISERT and NYGAARD, Circuit Judges
    (Opinion filed November 19, 2012)
    ___________
    OPINION OF THE COURT
    ___________
    PER CURIAM
    Vaidas Kulberkis, a citizen of Lithuania, petitions for review of an order of
    deportation issued by United States Immigration and Customs Enforcement (“ICE”), an
    arm of the Department of Homeland Security. For the reasons that follow, we will deny
    the petition.
    I.
    Because we write primarily for the parties, who are familiar with the background
    of this case, we discuss that background only briefly here. In June 2009, Kulberkis was
    admitted to the United States pursuant to the Visa Waiver Program (“VWP”). Under that
    program, “a qualifying visitor may 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. of the U.S., 
    603 F.3d 235
    , 238 (3d Cir. 2010). “Once admitted under the VWP, a
    visitor may remain in the United States for 90 days.” 
    Id.
     (citing 
    8 U.S.C. § 1187
    (a)(1)).
    “[A] VWP visitor must waive his or her right to contest the government‟s admissibility
    determinations and removal actions, except that the alien may contest removal actions on
    the basis of asylum.” Bradley, 
    603 F.3d at
    238 (citing 
    8 U.S.C. § 1187
    (a)-(b)). “[U]nlike
    the ordinary removal case, a VWP entrant‟s removal „shall be determined by the district
    director who has jurisdiction over the place where the alien is found, and shall be effected
    without referral of the alien to an immigration judge for a determination of
    deportability.‟” Bradley, 
    603 F.3d at 238
     (quoting 
    8 C.F.R. § 217.4
    (b)).
    Kulberkis ultimately remained in the United States beyond the VWP‟s 90-day
    period. In March 2011, he married Dawn Petro, a United States citizen, in New Jersey.
    In December 2011, ICE‟s Field Office Director for Newark, New Jersey, ordered that
    2
    Kulberkis be deported for having remained in the country for a time longer than
    permitted. Kulberkis now challenges that order.1
    II.
    Kulberkis presents two arguments in support of his petition. We consider them in
    turn.
    He first contends that, although he was admitted to the United States as a VWP
    entrant, the record fails to establish that he waived his right to a removal hearing. We
    previously considered a similar argument in Bradley. There, Petitioner Heathcliffe
    Bradley claimed that his waiver under the VWP was invalid because it was not knowing
    and voluntary. Bradley, 
    603 F.3d at 239-40
    . Because that claim amounted to a due
    process challenge under the Fifth Amendment, we explained that Bradley could not
    prevail unless he established that he was “substantially prejudiced” by the allegedly
    invalid waiver. 
    Id. at 240
    . We ultimately concluded that Bradley had not made that
    showing, for “[h]ad Bradley known the contents of the waiver and refused to sign, he
    would be in the same position as he is now — subject to summary removal without a
    hearing — and he would not now be eligible to adjust his status on the basis of his
    marriage to [his United States citizen wife].” 
    Id. at 241
    . Because we are not persuaded
    1
    We have jurisdiction over Kulberkis‟s petition based on our authority to review final
    orders of removal. See 
    8 U.S.C. § 1252
    (a)(1); Bradley, 
    603 F.3d at
    237 n.1. Although
    ICE‟s order was styled as an order of “deportation,” not an order of “removal,” “[w]e
    have repeatedly held, in a variety of contexts, that the terms „deportation‟ and „removal‟
    are interchangeable.” Sarango v. Att‟y Gen. of the U.S., 
    651 F.3d 380
    , 383 (3d Cir.
    2011).
    3
    that there is a meaningful distinction between Bradley and the case at bar, our reasoning
    in Bradley forecloses relief here.2
    Kulberkis‟s remaining argument is that his deportation order is void “because it
    was issued without allowing [him] to apply for marriage-based adjustment of status”
    under 
    8 U.S.C. § 1255
    (c)(4).3 (Pet‟r‟s Opening Br. 1.) Again, we considered a similar
    argument in Bradley. There, we held that, “although Bradley was once statutorily
    eligible under 
    8 U.S.C. § 1255
    (c)(4) for the adjustment he now seeks, he may not, after
    the expiration of his 90-day stay [under the VWP], adjust his status as a defense to
    removal.” Bradley, 
    603 F.3d at 242
    . Although Kulberkis maintains that his case is
    distinguishable from Bradley “because Bradley has filed his application for adjustment of
    status . . . and it was denied,” (Pet‟r‟s Opening Br. 3), our holding in Bradley did not
    hinge on those facts. Rather, it hinged on the fact that Bradley applied to adjust status
    after the expiration of the VWP‟s 90-day period. Because Kulberkis now seeks to do the
    same, our reasoning in Bradley controls and forecloses relief here.
    In light of the above, we will deny Kulberkis‟s petition for review.
    2
    Given our resolution of this claim, we deny as unnecessary the Government‟s motion to
    supplement the record with evidence that Kulberkis indeed executed the VWP waiver.
    3
    Although § 1255(c)(4) “generally makes VWP entrants ineligible for the „adjustment of
    status‟ remedy,” that provision “carves out an exception for VWP entrants seeking to
    adjust their status on the basis of an immediate-relative petition. The term „immediate
    relative‟ includes the spouse of a U.S. citizen.” Bradley, 
    603 F.3d at
    242 n.6 (citing 
    8 U.S.C. § 1151
    (b)(2)(A)(i)).
    4
    

Document Info

Docket Number: 12-1025

Filed Date: 11/19/2012

Precedential Status: Non-Precedential

Modified Date: 10/30/2014