Jordana Vera v. Atty Gen USA ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 11-3157
______________
JORDANA VERA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
______________
On Petition for Review of a Removal
Order of the Department of Homeland Security
File No. A201 246 042
______________
Submitted under Third Circuit LAR 34.1(a)
December 16, 2011
BEFORE: SLOVITER, VANASKIE, and GREENBERG,
Circuit Judges
(Filed: March 1, 2012)
______________
Robert J. Adinolfi
110 Wall Street
11th Floor
New York, NY 10005
Attorney for Petitioner
Eric H. Holder, Jr.
Attorney General
Tony West
Assistant Attorney General
Richard M. Evans
Assistant Director
Sharon M. Clay
Thomas W. Hussey
United States Department of Justice
Office of Immigration Litigation
Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
______________
OPINION OF THE COURT
______________
2
GREENBERG, Circuit Judge.
I. INTRODUCTION
Petitioner Jordana Vera (also known as Jordana Vera-
Sera) (“Vera”), a citizen of Argentina, seeks review of a
removal order of the Department of Homeland Security (“the
Department”). 1 The Department ordered Vera removed for
staying beyond the 90 days that she was permitted to stay
pursuant to the Visa Waiver Program (“VWP”), under which she
entered this country. Vera contends that the Department’s
removal order is invalid because the government failed to show
that she waived her right to contest her removal under the VWP
and she did not receive the due process procedural protections to
which she contends she would have been entitled under the Fifth
Amendment in the absence of such a waiver. Vera also argues
that, because she was a minor when she entered this country, she
could not at that time either explicitly or implicitly waive any
procedural rights that she had with respect to contesting a later
1
Throughout this opinion we refer to the agency enforcing the
applicable law and regulations as the Department of Homeland
Security. In point of fact, however, the Department was not
established until after Vera entered this country. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 101, 116 Stat.
2135, 2142. The Homeland Security Act integrated all or parts
of 22 different federal departments and agencies, including as
relevant to this case the Immigration and Naturalization Service
and the Customs Service. Thus our references to the
Department are sometimes to its predecessor agency.
3
order of removal. For the reasons that follow, we will deny her
petition for review.
II. FACTUAL AND PROCEDURAL HISTORY
On September 8, 2000, when she was 12 years old, Vera,
accompanied by her father, 2 entered the United States through
the VWP. 3 Recently, in Bradley v. Attorney General, 603 F.3d
2We are uncertain as to whether Vera’s mother accompanied
her.
3
In her opening brief in this Court, Vera did not concede
expressly that she entered the United States pursuant to the
VWP. But the government in its answering brief pointed out
that Vera stated that she was admitted under the VWP in the
Record of Sworn Statement that she executed when Immigration
and Custom Enforcement officers took her into custody and that
her father, in an affidavit submitted on her behalf, made the
same representation. Though she had the opportunity in her
reply brief to contest the government’s representation of the
contents of those documents she did not do so nor does she deny
now that she entered the United States under the auspices of the
VWP. Moreover, she does not contend that she entered the
United States on any basis other than under the VWP. In these
circumstances, we are satisfied that she entered pursuant to the
VWP. We also point out that there is no indication in the briefs
or the record on the petition before us that she ever has left this
country since the time of her entry.
4
235, 238 (3d Cir. 2010), we described the pertinent components
of the VWP:
Under the VWP, a qualifying
visitor may enter the United States
without obtaining a visa, so long as
a variety of statutory and regulatory
requirements are met. Among
other things, a visitor seeking
admission under the VWP must
execute certain immigration forms,
present a passport from a qualifying
country, and possess a round-trip
ticket. 8 U.S.C. § 1187(a). Once
admitted under the VWP, a visitor
may remain in the United States for
90 days. 8 U.S.C. § 1187(a).
Visitors to the United States admitted pursuant to the
VWP must waive certain procedural rights afforded other aliens
within this country before they may be removed without their
consent. Thus, as we indicated in Bradley, “[m]ost significantly,
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.” 603 F.3d at 208 (citing 8 U.S.C. § 1187(a)-(b)). The
Department has implemented this statutory requirement through
regulations requiring that a VWP applicant, prior to admission
to the United States, present United States officers with a
completed, signed Form I-94W, Nonimmigrant Visa Waiver
Arrival/Departure Form,” 8 C.F.R. § 217.2(b)(1) (2000), which
5
contains an express waiver of any possible right to contest
admissibility determinations and removal actions. 4 A visitor’s
execution of the Form I-94W waiver is an “ironclad”
requirement; “[i]ndeed, a VWP applicant may not be provided a
waiver [of visa requirements] under the program unless the alien
has signed a VWP waiver, [8 U.S.C. § 1187(b)], and an
applicant who does not sign will be refused admission and
removed, see 8 C.F.R. § 217.4(a)(1).” Bradley, 603 F.3d at 238
(internal quotation marks omitted). 5
4
We reference the regulations in effect at the time Vera entered
the United States though we note that those regulations do not
differ as significant here from the more current regulations to
which Bradley evidently cited.
5
In full, the VWP’s waiver provision states:
An alien may not be provided a waiver under the
program unless the alien has waived any right-
(1) to review or appeal under this chapter
of an immigration officer’s determination
as to the admissibility of the alien at the
port of entry into the United States, or
(2) to contest, other than on the basis of an
application for asylum, any action for
removal against the alien.
8 U.S.C. § 1187(b) (2000).
6
So far as we are aware neither the statute authorizing the
establishment of the VWP nor its implementing regulations
make any exception to the requirement for the execution of the
waiver in the case of a minor, and the parties in their briefs do
not suggest that there is any such provision. In a procedure
differing from that applicable in cases in which aliens were
admitted on bases other than under the VWP, the determination
of whether a VWP entrant will be removed is made “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.” 8
C.F.R. § 217.4(b) (2000). 6
It is undisputed that Vera remained in the United States
for many years beyond the time that the VWP authorized her to
stay, and that she still remains here. But Vera’s long and
apparently undisturbed unlawful stay in the United States was
interrupted on July 22, 2011, when, during their execution of a
warrant for the arrest of her brother, Immigration and Customs
Enforcement (“ICE”) officers discovered that Vera was in the
United States. At that time the ICE officers took Vera into
custody, and while in custody she completed a Record of Sworn
Statement regarding her entry and status in the United States in
which she confirmed that she entered the United States pursuant
to the VWP. That same day, the Department issued a warrant
for her arrest and removal, and ICE also issued to Vera a
“Notice of Intent to Deport for Violating the Terms of Your
6
There is an exception to this provision, not applicable in this
case, for cases in which the alien is seeking asylum.
7
Admission Under Section 217 [of the Immigration and
Nationality Act (“INA”)].” 7 That document stated:
[ICE] has determined that you
entered the United States pursuant
to Section 217 of the Immigration
and Nationality Act. Accordingly,
you executed a Form I-791, Visa
Waiver Program Information Form
that explained to you the conditions
of admission under the Visa Waiver
Program. When you signed Form
I-791, you also waived your right to
contest deportability before an
immigration judge and the Board of
Immigration Appeals, and to any
judicial review of any and all of the
above decisions.
[ICE] has determined that you have
violated the terms of your
admission under Section 217 . . . on
the grounds that:
You have remained in the United
7
The Visa Waiver Program originally was entitled the “Visa
Waiver Pilot Program” and was enacted as section 217 of the
Immigration and Nationality Act. See Pub. L. No. 99-603, 100
Stat. 3359, 3435-39 (1986).
8
States for a time longer than
permitted.
App. at 4. 8
In conformity with the provisions of the VWP, following
the time that the ICE officers took Vera into custody there were
no proceedings before an immigration judge to determine her
removability. Rather, the Department promptly scheduled her
for forthwith removal on August 4, 2011. On that date,
however, she refused to board the aircraft and thus she did not
depart. 9 Instead, Vera filed a timely petition for review with this
8
The “Notice of Intent to Deport” refers to Vera’s execution of a
Form I-791, while the pertinent statutes and regulations in place
as of Vera’s entry required that a VWP visitor execute a form I-
94W. Those regulations referencing Form I-791 label that form
as a “Visa Waiver Pilot Program Information Form,” while
labeling the I-94W as a “Nonimmigrant Visa Waiver
Arrival/Departure Form.” 8 C.F.R. § 299.1 (2000). We do not
find the variation in forms to be of great concern as the
significant question remains the same: whether at the time of her
entry into the United States Vera executed a waiver of her right
to contest her removal.
9
We are surprised that an alien ordered removed can frustrate
the removal process simply by refusing to board the aircraft
available to take her to the country of removal. We would have
thought that measures would be in place to effectuate an order
of removal by whatever means are necessary.
9
Court on August 8, 2011, requesting that we vacate the order of
removal and direct the Department to release her or provide her
with the ordinary removal process, including a hearing before a
neutral arbiter.
III. STATEMENT OF JURISDICTION
Pursuant to 8 U.S.C. § 1252(a)(1), we have jurisdiction
over “final orders of removal.” See Khouzam v. Attorney Gen.,
549 F.3d 235, 247 (3d Cir. 2008). The parties’ briefs and the
record before us do not make clear whether the Department
issued a removal order directed to Vera following the issuance
of the “Notice of Intent to Deport,” an omission that causes us to
pause before concluding that there has been a final order of
removal in this case over which we can exercise jurisdiction on
a petition for review. 10 Nevertheless, in other cases we have
treated documents to be final orders of removal under 8 U.S.C. §
1252(a)(1) that, as is true here, by their titles might seem to be
something less than final provided that the documents were
coupled with agency action so that the documents and the action
together had the effect of “an order . . . concluding that the alien
is [removable] or ordering [removal].” See Khouzam, 549 F.3d
at 247 (concluding that the Department’s decision to terminate
petitioner’s deferral of removal, which decision made petitioner
“eligible for, and apparently subject to, imminent removal” was
an “‘order of removal’ under section 1252”). We are satisfied
that the Department’s near deportation of Vera demonstrates
We think it likely that the Department did not issue any order
10
after the Notice of Intent to Deport as the briefs do not refer to
any such order.
10
that even if the Department did not issue a document styled as a
final order of removal addressed to Vera, that the “Notice of
Intent to Deport” was, in effect, a final order of removal. Thus,
we have jurisdiction over Vera’s petition for review. See
Bradley, 603 F.2d at 237 n.1 (concluding that 8 U.S.C. §
1252(a)(1) provides jurisdiction to review final orders of
removal in cases involving VWP entrants).
IV. ANALYSIS
The government has been unable to produce the signed
waiver that it contends that Vera must have executed pursuant to
the VWP when she entered the United States. Vera contends
that this inability creates a presumption that she did not execute
such a waiver and she accordingly was entitled to due process,
including a hearing before a neutral arbiter, prior to being
removed. The government responds that because Vera concedes
that she entered the United States through the VWP, in light of
the statutory and regulatory requirements that VWP entrants
execute a waiver before being admitted, the government is
entitled to the benefit of a rebuttable presumption that Vera
executed a waiver. We agree that under Bradley the government
is entitled to a presumption that Vera executed the waiver, and
we further believe that the presumption has not been rebutted
here.
In Bradley, a case similar in some respects to this case,
the petitioner, Bradley, conceded that he had been admitted
pursuant to the VWP and had stayed beyond the 90-day limit
allowed. Nevertheless he contended that the government’s
failure to produce his signed I-94W form rendered his removal
11
invalid because the government was required to prove that he
executed such a waiver by “clear, unequivocal, and convincing
evidence” in accordance with Woodby v. INS, 385 U.S. 276,
285-86, 87 S.Ct. 483, 488 (1966). 603 F.3d at 237-39. We
rejected Bradley’s argument, as we concluded that even if the
Woodby standard applied to waivers required by the VWP for
admission into the United States, 11 the government met its
burden because of Bradley’s concession that he entered the
United States through the VWP, his declaration that he signed “a
form” that he handed to the Customs Officer upon entering the
United States, and that he thereafter was admitted to the United
States. Id. at 239. The government provided further evidence in
support of its position by submitting the top, unsigned portion of
a Form I-94W bearing Bradley’s name, date of birth, and his
date of admission. 12 Id. We found that this evidence became
“nearly irrefutable in view of the regulations and procedures
governing admission under the VWP,” which preclude entry
into the United States without execution of a waiver. Id. We
held that “[b]ecause ‘agency action . . . is entitled to a
presumption of regularity,’ McLeod v. INS, 802 F.2d 89, 95 n.8
11
Notably, we expressed “doubt [as to] Bradley’s assumption
that the Department must prove his waiver by ‘clear,
unequivocal, and convincing evidence.’” Bradley, 603 F.3d at
239.
12
“During the admission process, [t]he departure record at the
bottom of the form is retained by the alien, while the
immigration official admitting the alien keeps the top portion,
including the signed waiver.” Bradley, 603 F.3d at 239 (citation
and internal quotation marks omitted).
12
(3d Cir. 1986), we presume that the Department admitted
Bradley under the VWP only after collecting the top portion of
his completed I-94W form, including his signed VWP waiver.”
Id.
Although the record in Bradley, unlike the record here,
included the petitioner’s declaration and the top, unsigned
portion of the I-94W, we find the reasoning of the opinion in
that case to be compelling here. Vera admitted or at least did
not deny that she entered the United States pursuant to the VWP,
and her father’s sworn affidavit essentially conclusively
establishes that she entered the United States on that authority.
As noted, a VWP applicant must present a “completed, signed
Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure
Form,” which contains the VWP waiver, prior to admission. 8
C.F.R. § 217.2(b)(1) (2000). An alien may not be admitted
pursuant to the VWP “unless the alien has waived any right . . .
to contest . . . any action for removal,” 8 U.S.C. §
1187(b)(2)(2000), and an alien who does not sign the VWP
waiver will be refused admission and removed from the United
States, see 8 C.F.R. § 217.4(a)(1) (2000). Vera does not direct
our attention to any evidence that could rebut the presumption
that the Department followed its own regulations in admitting
her under the VWP. We therefore presume that Vera, as a VWP
entrant, executed the statutorily-required waiver prior to her
entry. 13
13
Although Vera was a minor when she entered the United
States she was not of such tender years that she could not
possibly have executed the waiver. We hasten to add, however,
13
We recognize that our holding in this case is contrary to
that of the Court of Appeals for the Second Circuit in an opinion
on which Vera understandably relies in a case involving facts
somewhat similar to those here. 14 In Galluzzo v. Holder, 633
F.3d 111 (2d Cir. 2011), the court refused to find that a VWP
entrant had executed a waiver because, as is true here, the
government did not provide a signed I-94W or any explicit
evidence that the alien had executed the waiver. Id. at 115. We
recognize also that courts generally “indulge every reasonable
presumption against waiver of fundamental constitutional
rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,
1023 (1938) (emphasis added) (stating so in the context of
waiver of Sixth Amendment right to counsel); see also Fuentes
v. Shevin, 407 U.S. 67, 94 n.31, 92 S.Ct. 1983, 2001 n.31 (1972)
(“In the civil area, the Court has said that we do not presume
acquiescence in the loss of fundamental rights. Indeed, in the
civil area no less than the criminal area, courts indulge every
reasonable presumption against waiver.”) (citations and internal
quotation marks omitted) (emphasis added) (quoting Ohio Bell
Tel. Co. v. Pub. Utils. Comm’n, 301 U.S. 292, 307, 57 S.Ct.
724, 731 (1937), and Aetna Ins. Co. v. Kennedy, 301 U.S. 389,
393, 57 S.Ct. 809, 812 (1937)); Bayo v. Napolitano, 593 F.3d
that we are not implying that even if she had been of such a
tender age our result would have been different. Instead, we
leave the question of how the VWP is applied when the alien to
be removed was of tender years when she entered the country to
another day when it is necessary to answer it. See infra note 18.
14
Vera also relies on a not precedential opinion from another
court of appeals but we do not give that opinion any weight.
14
495, 503 (7th Cir. 2010) (en banc) (concluding that the waiver
standard in immigration cases is “perhaps not quite as strict as
the one applicable to criminal cases [as articulated in Zerbst],
[but it] must reflect the Supreme Court’s recognition of the
unique character of [removal proceedings]”).
Despite the exacting standard against which a claimed
waiver of constitutional rights must be judged, we find it
unreasonable to conclude that, on the one hand, Vera was
admitted pursuant to the VWP, as she concedes, but, on the
other hand, she refused or otherwise failed to sign a waiver. The
controlling statutes and regulations are clear: a VWP applicant
may not be admitted without waiving her right to contest
removal, 8 U.S.C. § 1187(b)(2) (2000); 8 C.F.R. § 217.2(b)(1)
(2000), and an applicant who refuses to execute such a waiver is
denied entry to the United States, see 8 C.F.R. § 217.4(a)(1)
(2000). Vera has not provided us with any reason to believe that
the Department, in violation of its own regulations, admitted her
without requiring that she sign a waiver, and in the absence of
such evidence we will not indulge the unsupported presumption
that she and the Department both circumvented the “linchpin”
legal requirement of the VWP. See Handa v. Clark, 401 F.3d
1129, 1135 (9th Cir. 2005) (“[T]he linchpin of the [VWP]
program is the waiver, which assures that a person who comes
here with a VWP visa will leave on time and will not raise a
host of legal and factual claims to impede his removal if he
overstays.”).
Indeed, we think that even though the government
contends that it is entitled to only a rebuttable presumption that
Vera signed the waiver, in view of the circumstance that this
15
case involves the VWP, we should be particularly circumspect
before finding that the presumption has been rebutted. 15 In
being circumspect we take into account the cases that we have
cited establishing an exacting standard for waiver of
constitutional rights, but we nevertheless follow this particularly
cautious approach because the presumptively executed waiver
was joined with an application for entry into the United States.
This joinder is critical because Vera is an alien and thus her
request to enter the United States was statutorily based as it was
without any constitutionally protected or even favored basis.
See Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329
(1982). In this regard, we point out that Congress may prescribe
such requirements as it seems fit for an alien to be admitted into
this country. See Kleindienst v. Mandel, 408 U.S. 753, 770, 92
S.Ct. 2576, 2585 (1972) (“In summary, plenary congressional
power to make policies and rules for exclusion of aliens has
long been established.”). Of course, if an alien applicant for
admission will not sign a waiver, she simply will not be
admitted.
There is a second and independent basis for our result.
Even if Vera did not sign a waiver, or if she signed a waiver that
was invalid because she was a minor when she signed it, she
15
The government does not contend that the presumption was
irrebutable so that regardless of the actual facts Vera will be
deemed to have signed the waiver. See B&G Constr. Co. v.
Director, Office of Workers’ Compensation Programs, 662 F.3d
233, 254 (3d Cir. 2011) (statute creating “irrebutable
presumption” sets forth a rule of “substantive law”). Thus, we
do not consider that possibility.
16
suffered no prejudice. Vera’s contention with respect to the
effect of her age at the time of the waiver’s execution, if she
signed such a waiver, brings to bear an argument that Bradley
advanced regarding the enforceability of VWP waivers. Bradley
contended that a VWP waiver must be entered into knowingly
and voluntarily to be enforceable and that he was too intoxicated
at the time he purportedly signed the waiver to have executed
that document knowingly and voluntarily. 603 F.3d at 240. We
noted that “[i]n all respects, Bradley’s claim amounts to a
challenge of his removal order under the Due Process Clause of
the Fifth Amendment, and consequently, he cannot prevail
without ‘an initial showing of substantial prejudice.’” Id.
(quoting Khan v. Attorney Gen., 448 F.3d 226, 236 (3d Cir.
2006)). We thus determined that “even assuming without
deciding that Bradley’s VWP waiver must be ‘knowing and
voluntary,’ Bradley cannot invalidate his removal order unless
he can demonstrate he was ‘substantially prejudiced’ by his
allegedly unknowing waiver.” 16
We held that Bradley could not demonstrate prejudice
and in so concluding adopted the reasoning of the en banc Court
of Appeals for the Seventh Circuit in Bayo, 593 F.3d 495. In
Bayo, a case similar to both this case and Bradley, the petitioner
asserted that he did not knowingly and voluntarily execute the
VWP waiver because the waiver was in English, a language that
16
In Bradley we recognized that the Courts of Appeals for the
Fifth and Seventh Circuits have found that VWP waivers must
be knowing and voluntary to be effective. 603 F.3d at 240
(citing Bayo, 593 F.3d 495; Nose v. Attorney Gen., 993 F.2d 75,
79 (5th Cir. 1993)).
17
he could not speak or read. In finding that the petitioner in Bayo
could not demonstrate prejudice the court explained:
Had he known what the waiver
said, Bayo would have had two
options, either of which would have
led to summary removal. If he had
signed the waiver anyway, knowing
full well what it said, he would be
in the same situation as he is now.
If he had refused to sign, he would
have been removed summarily at
the border because he did not have
a proper visa. Perhaps there is a
slight chance that after removal,
Bayo could have obtained a visa to
come to the United States, and then
he might have settled in Indiana,
met [the American citizen he
married following entrance through
the VWP], and married her,
allowing him to adjust his status
based on marriage at that time. As
Bayo admits in his brief though,
‘[i]t is difficult to compare what
might have been with what is.’
This is true, and it is the reason
why we find the explanation of how
Bayo might have been harmed too
speculative to support a showing of
prejudice.
18
593 F.3d at 506.
We concluded that Bradley, like Bayo, was unable to
“show he has been prejudiced by an unknowing or involuntary
waiver because any harm would be too speculative.” Bradley,
603 F.3d at 240. Reiterating the reasoning of Bayo, we found
that “[t]he consequence [Bradley] now faces — summary
removal — is the same consequence he would have faced had he
known of the waiver and refused to sign . . . [and] he has failed
to demonstrate how his knowledge of the waiver realistically
could have changed this outcome.” Id. In rejecting Bradley’s
contention that prejudice should be measured at the time
Bradley was denied process, not at the time of his entry to the
United States, we explained:
Bradley’s VWP waiver was an
express condition precedent to his
1996 entry to the United States, and
he would not have been admitted
without it. The prejudice of which
he complains — summary removal
without a hearing — is a direct
consequence of the VWP’s
congressional design and
implementing regulations, and not
Bradley’s alleged failure to
comprehend the terms of his VWP
visitor status. . . . To prevail on his
due process claim, Bradley must
demonstrate substantial prejudice
resulting from the due process
19
violation he has alleged — his
unknowing waiver of constitutional
rights. Accordingly, Bradley must
prove that, but for his ignorance of
the VWP waiver, he could
otherwise contest his removal on
the basis of his petition for
adjustment of status. This, he
cannot do. Had 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 [an
American citizen.]
Id. at 241; see also Bingham v. Holder, 637 F.3d 1040 (9th Cir.
2011) (relying on Bradley and Bayo in holding that VWP entrant
could not demonstrate prejudice on basis of an allegedly
unknowing or involuntary waiver).
Our prejudice analysis in Bradley, though based on
markedly different facts, guides us in our determination in this
case. In a contention similar to that Bradley advanced, Vera
contends that the government violated her Fifth Amendment
right to due process by denying her a hearing because her waiver
— if she executed one — was unenforceable by reason of her
20
status as a minor at the time she executed that document. 17
Accordingly, Vera must demonstrate that enforcement of the
allegedly defective waiver caused her substantial prejudice. As
was the case with respect to the petitioners in Bayo and Bradley,
Vera cannot do this. If Vera had been of majority age at the
time she entered the United States and otherwise knowingly and
voluntarily had executed the waiver, she would be in precisely
the position she is in now — facing summary removal. She
would not have been entitled to the procedural protections
normally afforded to an alien prior to removal, the denial of
which Vera contends causes her substantial prejudice. See
Pet’r’s br. at 15 (claiming prejudice on the basis of inability to
challenge the illegality of her arrest, to receive a bond hearing,
and to adjust her status on the basis of marriage). If Vera had
refused to sign the waiver when attempting to enter the United
States, she would have been denied entry because she did not
have a visa at that time and could not have entered pursuant to
the VWP. Vera thus fails to show how enforcement of the
allegedly defective waiver if she signed a waiver or the
enforcement of the VWP removal procedure even if she did not
sign a waiver has prejudiced her. 18
17
Whether Vera’s objection is cast as a contention that a minor’s
VWP waiver is ineffective per se or that Vera’s waiver
otherwise was not knowingly or voluntarily executed, the legal
predicate for the objection is the same and Bradley’s prejudice
analysis applies.
18
We thus decide this case without determining whether Vera’s
VWP waiver could not have been a knowing and voluntary
21
Bradley likewise disposes of Vera’s claim that under
Khouzam, 549 F.3d 235, substantial prejudice is presumed
because Vera received no process at all before the attempt to
remove her. In Khouzam, we held that the “complete absence of
any process” inherently and substantially prejudiced a non-VWP
petitioner when the government terminated his deferral of
removal under the Convention Against Torture. 549 F.3d at
239-40, 258. In Bradley, we distinguished Khouzam because
the petitioner in Khouzam “did not waive his due process rights,
and no statute conditioned his admission to the United States on
an express waiver of these rights.” 603 F.3d at 241. Finding
“no inherent prejudice in the enforcement of an express due
process waiver against an alien who has already received the
benefit of that waiver,” we held that “in the VWP context, we
will require the same showing of ‘substantial prejudice’ required
for other due process challenges to orders of removal.” Id.
(citing Khan, 448 F.3d at 236). As in Bradley, Vera’s due
waiver because of her age at the time of her entry into the
United States. We observe, however, that the consequence of a
decision that a minor cannot execute a valid waiver or the
summary removal provisions of the VWP cannot be enforced
against a minor could force the government to adopt a policy not
to allow minors to enter this country pursuant to the VWP.
After all, it seems obvious that the borders of this country
should not be opened to minor aliens literally to walk in on the
basis that they are temporary visitors but who then can refuse to
leave and demand procedures to determine if they can be
removed. In this regard, we point out that our experience shows
that removal proceedings frequently become both complicated
and protracted.
22
process claim thus fails because she cannot show that she
suffered any prejudice, even if she did not sign the mandated
waiver.
V. CONCLUSION
In reaching our conclusion we mention four significant
final points. First, the principles of the common law make it
plain that persons should not gain an advantage by their
wrongful conduct and that is precisely what Vera is trying to do
as she unlawfully has overstayed her 90-day authorization to be
in this country and seeks to build on that unlawful conduct to
remain longer. Second, inasmuch as there is no doubt that Vera
has been in this country illegally since 90 days after her
admission, this case is not one in which an alien who was
admitted legally nevertheless by reason of her later conduct may
be subject to removal. Quite to the contrary, Vera’s conduct
after her admission is immaterial in these proceedings. 19 Third,
the VWP is a vast program pursuant to which, according to the
government, in 2007 alone almost 16 million aliens were
admitted to the United States. Thus, the need for summary
removal procedures to enforce the conditions of admittance
under the VWP is obvious. If individual hearings before already
overworked immigration judges were required before an alien
19
Thus, this case differs from Judulang v. Holder, 132 S.Ct. 476,
490 (2011), where the Supreme Court was concerned about
arbitrariness in removal proceedings against “lawful resident
aliens.” Vera is not a lawful resident alien.
23
admitted pursuant to the VWP could be removed summarily the
program might become unmanageable. Fourth, though some
people might regard the outcome of this case to be harsh the fact
remains that if people in other countries object to the conditions
of their admission into the United States they are free not to
come here. In short, aliens either must accept the conditions of
their admission or not enter this country. The petition for review
which seeks to vacate the Notice of Intent to Deport is denied.
24