Xiao v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1589
___________
HUI HUA XIAO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Administrative Order of
the Department of Homeland Security Ordering
Removal pursuant to 8 U.S.C. § 1187(A077-772-272)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 1, 2012
Before: FISHER, WEIS and BARRY, Circuit Judges
(Opinion filed: June 11, 2012)
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OPINION
___________
PER CURIAM.
Hui Hua Xiao, a native and citizen of China, presented a fraudulent Japanese
passport to customs officials in an attempt to gain entry to the United States under the
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Visa Waiver Program (“VWP”), 8 U.S.C. § 1187. Relying upon the provisions of the
VWP which authorize summary removal, an agent with Immigration and Customs
Enforcement (“ICE”), an arm of the Department of Homeland Security, ordered Xiao’s
removal from the United States. Xiao petitions this Court for review, arguing that,
because he only attempted to enter, but was not granted entry, under the VWP, he is
entitled to a removal proceeding before an immigration judge. We conclude that ICE
properly applied the VWP in ordering removal and will deny Xiao’s petition for review.
I.
The relevant facts are undisputed and can be recounted briefly. In 1999, Xiao
arrived at Chicago O’Hare International Airport on a flight from Japan, where he had
been residing illegally. Xiao sought admission under the VWP, a program that allows
non-immigrant visitors from designated countries to enter the United States without a
visa and to remain for up to ninety days, provided the visitor complies with various
statutory and regulatory requirements. See Bradley v. Att’y Gen., 603 F.3d 235, 238 (3d
Cir. 2010). Xiao presented a Japanese passport bearing a photograph of himself and the
name “Toshiaki Tanaka.” (Japanese citizens, unlike Chinese citizens, are eligible for
VWP admission. See 8 C.F.R. § 217.2(a).) As required for admission under the VWP,
Xiao also completed Form I-94W, which waived his right to contest any action for
removal, other than on the basis of an application for asylum. See 8 U.S.C. § 1187(b)(2).
When questioned at the airport, Xiao conceded under oath that the Japanese
passport was fake and that he is a Chinese citizen. Xiao was detained and refused
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admission to the United States. In a subsequent interview, Xiao expressed fear of
returning to China due to, inter alia, alleged persecution on account of his religion. The
government referred his case to an immigration judge by issuing a Notice to Appear,
which charged Xiao as removable under various provisions of the Immigration and
Nationality Act (“INA”). In addition, the government released Xiao from custody and
paroled him into the country under 8 U.S.C. § 1182(d)(5) (affording the Attorney General
discretion to parole temporarily an alien applying for admission, “but such parole of such
alien shall not be regarded as an admission of the alien”).
Thereafter, Xiao filed an application for asylum. In 2003, an immigration judge in
New York terminated Xiao’s removal proceeding, explaining that, because Xiao sought
entry under the VWP, the government must issue a Notice of Referral (which commences
an asylum-only proceeding before an immigration judge) not a Notice to Appear (which
commences a removal proceeding under INA § 240). 1 The government promptly issued
a Notice of Referral, and in 2006 an immigration judge in Boston denied Xiao’s asylum
claim. Xiao appears not to have appealed that decision.
On February 17, 2011, an ICE agent issued a summary removal order under the
VWP, determining that Xiao is inadmissible under 8 U.S.C. §§ 1182(a)(6)(C)(i) and
1182(a)(7)(A)(i)(II) because he willfully misrepresented a material fact in attempting to
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“VWP participants who apply for asylum are granted ‘asylum-only’ hearings.”
Shehu v. Att’y Gen., 482 F.3d 652, 655 (3d Cir. 2007). “If the applicant is denied
relief in those proceedings, the VWP participant can be removed without any further
process.” Id.3
gain admission to the United States. Xiao timely filed a petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a) because ICE’s order constitutes a
final order of removal. See Bradley, 603 F.3d at 237 n.1. Xiao contends on appeal that
ICE had no authority to order his removal. He concedes that he engaged in a fraudulent
attempt to enter this country under the terms of the VWP, but he argues that ICE cannot
remove him summarily because he was never actually granted entry as a VWP
participant. We discern no error in the removal order.
Non-immigrant visitors who wish to benefit from the process of expedited
admission provided by the VWP “must waive certain procedural rights afforded other
aliens within this country[.]” Vera v. Att’y Gen., 672 F.3d 187, 190 (3d Cir. 2012).
Among other things, “a VWP visitor must waive his or her rights to contest the
government’s admissibility determinations and removal actions, except that the alien may
contest removal actions on the basis of asylum.” Id. (quoting Bradley, 603 F.3d at 238)
(quotation marks omitted). To this end, a VWP applicant is required, “prior to admission
to the United States, [to] present United States officers with a ‘completed, signed Form I-
94W, Nonimmigrant Visa Waiver Arrival/Departure Form,’ ... which contains an express
waiver of any possible right to contest admissibility determinations and removal actions.”
Id. (quoting 8 C.F.R. § 217.2(b)(1)).
Federal regulations adopted to implement the VWP do not afford different
treatment to aliens, like Xiao, who apply for VWP admission with fraudulent travel
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documents and fail to gain entry under the program:
An alien who applies for admission under the provisions of
section 217 of the Act [i.e., the VWP] ... who is in possession
of and presents fraudulent or counterfeit travel documents,
will be refused admission into the United States and removed.
Such refusal and removal shall be made at the level of the
port director or officer-in-charge, or an officer acting in that
capacity, and shall be effected without referral of the alien to
an immigration judge for further inquiry, examination, or
hearing, except that an alien who presents himself or herself
as an applicant for admission under [the VWP] and applies
for asylum in the United States must be issued a Form I-863,
Notice of Referral to Immigration Judge, for [an asylum-only
proceeding].
8 C.F.R. § 217.4(a)(1).
Section 217.4(a)(1) forecloses Xiao’s argument here. The regulation makes clear
that an alien who “applies” for VWP admission with a fraudulent travel document will be
refused admission and removed summarily, unless the alien requests asylum. Section
217.4(a)(1) thus “treats someone who applies under the [VWP] using fraudulent papers
as bound by its provisions[.]” Shabaj v. Holder, 602 F.3d 103, 105 (2d Cir. 2010).
Furthermore, the summary removal procedure applies “to anyone who seeks admission
under the [VWP] using a passport from a nation included in the [VWP], whether the
passport is valid or bogus.” Id. at 106; see also In re Kanagasundram, 22 I. & N. Dec.
963, 964 (BIA 1999) (explaining that “the provisions of 8 C.F.R. § 217.4 are not limited
to aliens who are actually nationals of VWP[] designated countries, but specifically
encompass individuals who present fraudulent and counterfeit travel documents from
such countries.”). Consequently, “a fraudulent [VWP] applicant ... is a [VWP] applicant
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nevertheless.” Shabaj, 602 F.3d at 106.
Xiao concedes that he applied for admission under the VWP using a fraudulent
passport in an effort to pass himself off as a citizen of Japan, a VWP-designated country.
In addition, Xiao does not dispute that he executed Form I-94W, which waived his right
to challenge the determination that he is removable. Xiao was afforded an asylum-only
proceeding, as contemplated by the VWP, and an immigration judge denied that relief.
On this record, ICE was authorized to order removal without further proceedings before
an immigration judge. See Shabaj, 602 F.3d at 105 (holding that VWP applicant was
“bound by the terms of the program” notwithstanding that he used a fraudulent passport
to apply for admission); Zine v. Mukasey, 517 F.3d 535, 542-43 (8th Cir. 2008)
(rejecting the argument that an alien who is ineligible to enter under the VWP should not
be bound by its restrictions).
While Xiao expresses a desire for a removal proceeding under INA § 240 so that
he can apply for relief before an immigration judge and seek to adjust his status, Xiao’s
attempted VWP entry subjected him to removal without further process. “[T]he need for
summary removal procedures to enforce the conditions of ... the VWP is obvious. If
individual hearings before already overworked immigration judges were required before
an alien ... could be removed summarily the program might become unmanageable.”
Vera, 672 F.3d at 198. Finally, Xiao suggests that the government’s initial issuance of a
Notice to Appear coupled with its decision to parole him into the country somehow
conferred a right to have an immigration judge determine his removability. Xiao fails,
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however, to cite any authority in support of this argument, and we reject it on the record
in this case. We hold that ICE did not err in ordering Xiao’s removal under the VWP.
III.
For the foregoing reasons, we will deny the petition for review.
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