John Lavery v. William Barr, U. S. Atty Gen ( 2019 )

Case: 18-60244 Document: 00515211400 Page: 1 Date Filed: 11/22/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60244 FILED
November 22, 2019
Lyle W. Cayce
JOHN JOSEPH LAVERY, Clerk
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review from a Decision of
Immigration and Customs Enforcement
Before JONES, SMITH, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
John Lavery, the petitioner, was ordered removed from the United
States by the Department of Homeland Security (“DHS”) after he violated the
terms of his admission under the Visa Waiver Program (“VWP”), 8 U.S.C.
§ 1187. He filed a motion to reopen pursuant to 8 C.F.R. § 103.5, positing that
he never voluntarily and knowingly waived his right to a hearing before an
immigration judge and thus should not be summarily removed. An
Immigration and Customs Enforcement (“ICE”) Deputy Field Office Director
denied Lavery’s motion, and Lavery filed a petition for review in this court.
The government moved to dismiss for lack of jurisdiction. We DISMISS
Lavery’s petition for lack of jurisdiction because it calls for judicial review of
the denial of a motion he is not entitled to file.
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BACKGROUND
John Lavery is a native and citizen of the United Kingdom. He first
entered the United States in 1974 using a B-2 visitor’s visa. He remained in
the United States for the next forty years in violation of the conditions of that
visa.
In December 2014, Lavery and his wife were given tickets for a trip to
Scotland. The trip was scheduled for June 2015 and required Lavery to possess
a visa to reenter the United States. Interestingly, he had maintained his U.K.
passport. But the visa requirement presented a problem for Lavery because
he did not have a visa and his American citizen wife was unaware that he was
not a citizen of the United States. Lavery turned to his cousin for advice
because she was a frequent traveler. She told Lavery about the VWP.
The VWP “permits alien visitors to enter the United States from
designated countries for a period not exceeding 90 days without obtaining a
nonimmigrant visa.” Nose v. Attorney Gen. of U.S., 993 F.2d 75, 77 (5th Cir.
1993). The program is dependent upon, inter alia, the alien’s waiver of his
right “to contest, other than on the basis of an application for asylum, any
action for removal.” 8 U.S.C. § 1187(b)(2). This waiver is the linchpin of the
program; it allows VWP participants to enter the country expeditiously while
streamlining their removal. When the VWP was first piloted, the waiver was
executed using Form I-791. Visa Waiver Pilot Program, 53 Fed. Reg. 24,898,
24,901 (June 30, 1988) (to be codified at 8 C.F.R. pt. 217). That form was
replaced a few years later by Form I-94W. Visa Waiver Pilot Program, 56 Fed.
Reg. 32,952 (July 18, 1991) (to be codified at 8 C.F.R. pt. 217). Form I-94W
used to be completed when an alien entered the country. It is now, however,
integrated as part of the Electronic System for Travel Authorization (“ESTA”).
Changes to the Visa Waiver Program, 80 Fed. Reg. 32,267, 32,269 (June 8,
2015) (to be codified at 8 C.F.R. pt. 217) (“ESTA provide[s] for an automated
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collection of the information required on the [paper] Form I-94W . . . in advance
of travel.”). The ESTA is an online portal through which aliens apply for the
VWP. Applicants who intend to travel by air or sea must submit an ESTA
application—including signing the VWP waiver—and receive travel
authorization before entering the United States. Id. at 32,267.
Just before leaving for Scotland, Lavery completed an ESTA application
and was approved for admission into the United States. Lavery does not recall
being informed that by applying for entry through the VWP he was waiving
his right to a hearing before an immigration judge. He asserts that if that
condition was “stated any place on the website,” he either “missed it or did not
understand it.” The government, for its part, has produced Lavery’s ESTA
application. The application includes an “N” notation next to the field “Third
Party Indicator” and a “Y” notation next to the field “Waived Rights,” reflecting
that Lavery personally filled out the application and certified that he waived
his right to challenge removal except on the basis of an application for asylum.
Lavery traveled to Scotland in 2015. He returned to the United States
on June 30, 2015, and was admitted as a tourist under the VWP with
authorization to remain in the country until September 27, 2015. He remained
in the United States past that date. On March 7, 2017, Lavery was arrested
for the crime of “Fraud-False Statement.” He posted bond in the criminal
proceeding but was immediately transferred into ICE custody.
ICE issued a Notice of Intent to Remove (“NOIR”) on March 22, 2017.
The NOIR alleged that Lavery
executed a Form I-791, Visa Waiver Pilot Program Information
Form that explained to [him] the conditions of admission under the
Visa Waiver Pilot Program. When [Lavery] signed Form I-791,
[he] also waived [his] right to contest any action for removal before
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an immigration judge and Board of Immigration Appeals, and to
any judicial review of any and all of the above decisions. 1
On the same day, ICE issued an order of removal on the basis that Lavery
failed to comply with the conditions of his admission under the VWP. The
removal order made clear that because Lavery had been admitted under the
VWP, he had “waived [his] right to contest any action for removal, except to
apply for asylum.” Lavery attests that neither the NOIR nor the order of
removal was immediately served on him. And neither the NOIR nor the order
of removal is accompanied by a certificate of service evidencing that these
documents were served. Lavery maintains that he first saw these documents
on February 16, 2018, when his immigration attorney brought them to his
attention.
On February 21, 2018, Lavery submitted Form I-290B and an
accompanying brief to ICE’s Enforcement and Removal Field Office in San
Antonio, Texas, requesting that it “reopen [the] office’s administrative order of
removal.” He argued that he did not knowingly and voluntarily waive his right
to a hearing before an immigration judge and thus should not be summarily
removed. On March 14, 2018, the Deputy Field Office Director (“Director”)
rejected Lavery’s request, stating that “there is no appeal of the Immigration
Officer’s decision in this instance.” The Director then went on to note that
Lavery’s case had nonetheless been reviewed and that ICE’s decision would
not be overturned.
On April 6, 2018, Lavery submitted this petition for review, claiming
again that he did not knowingly and voluntarily waive his right to a hearing
1 The government later clarified that it was “highly unlikely that [Lavery] executed
an I-791” paper form because he applied for the VWP through the ESTA. This clarification,
however, was only provided after repeated requests from Lavery’s counsel and finally a
request from this court. The government should have been more forthcoming with this
information.
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before an immigration judge. Before merits briefs were filed, the government
moved to dismiss the petition for lack of jurisdiction based on its untimeliness.
DISCUSSION
“Federal courts are courts of limited jurisdiction, and absent jurisdiction
conferred by statute, lack the power to adjudicate claims.” Stockman v. FEC,
138 F.3d 144, 151 (5th Cir. 1998). Accordingly, our first task is to determine
whether we have jurisdiction to entertain the merits of Lavery’s petition.
The government avers that this court lacks jurisdiction because Lavery’s
petition was untimely. A petition for review must be filed within thirty days
of the issuance of a final order of removal. 8 U.S.C. § 1252(b)(1). This “time
limit is ‘mandatory and jurisdictional.’” Mendias-Mendoza v. Sessions,
877 F.3d 223, 227 (5th Cir. 2017) (quoting Stone v. I.N.S., 514 U.S. 386, 405,
115 S. Ct. 1537, 1549 (1995)). Lavery filed his petition on April 6, 2018, over a
year after ICE issued its removal order and over thirty days after Lavery says
he was put on notice of the order. Thus, if Lavery were challenging the removal
order, his petition would be time barred. Lavery, however, is not challenging
that order; he contests the denial of his motion to reopen. 2 The latter order
constitutes a separate final order requiring its own petition for review. See
Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006). Lavery’s petition, filed
within thirty days of the Director’s denial of his motion to reopen, is therefore
timely.
There is, however, a different jurisdictional problem plaguing Lavery’s
petition. Lavery contested the waiver of his right to a hearing before an
immigration judge by moving to reopen under 8 C.F.R. § 103.5. But as a VWP
2The government also contends that Lavery did not technically file a motion to reopen
and that its rejection of his filing did not constitute a denial of a motion to reopen. We do not
address this argument because Lavery’s petition must be dismissed for lack of jurisdiction
regardless of how we characterize Lavery’s motion and the government’s rejection of it.
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participant, Lavery is limited to contesting his removal “on the basis of an
application for asylum.” 8 U.S.C. § 1187(b)(2). Lavery concedes that he is not
seeking asylum. The statute on its face appears to bar Lavery from challenging
his deprivation of a hearing by means of a motion to reopen.
Lavery argues otherwise. He maintains that a motion to reopen is a
proper vehicle for his claim because, pursuant to the broad language of
8 C.F.R. § 103.5, “a party affected by a decision issued by a Department of
Homeland Security . . . officer, which includes an ICE officer, may file a motion
to reopen the proceeding.” Lavery acknowledges that Section 103.5 “exempts
certain categories of decisions from its purview,” but removal decisions made
under 8 U.S.C. § 1187 or 8 C.F.R. § 217.4 (the relevant VWP statute and
regulation) are not among the listed exemptions. Because VWP removal orders
are not expressly barred from reconsideration on a motion to reopen, Lavery
reasons that VWP decisions fall within the scope of Section 103.5.
Lavery also insists that had Congress wished to deny aliens ordered
removed under the VWP the right to file a motion to reopen, it could have done
so expressly. As evidence of Congress’s ability to proscribe such relief, he
points to 8 U.S.C. § 1231(a)(5), which explicitly denies aliens subject to an order
of reinstatement of removal the right to file motions to reopen. See I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421, 432, 107 S. Ct. 1207, 1213 (1987) (“[W]here
Congress includes particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.” (quoting
Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 300 (1983))
(alteration in original) (internal quotation marks omitted)).
The government responds that the reach of 8 C.F.R. § 103.5(a) is
limited—it “only applies to aliens requesting immigration benefits and is not
applicable to aliens challenging a VWP order of removal.” An entirely different
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regulation, 8 C.F.R. § 217, controls VWP proceedings and makes no mention of
a motion to reopen. Nor is there any mention of this right in the governing
statute. See 8 U.S.C. § 1187. The government thus concludes that a VWP
entrant does not have the right to file a motion to reopen.
The government has the better reading of the relevant statutes and
regulations. The VWP statute speaks in broad, definitive terms. It mandates
that aliens participating in the VWP waive “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) (emphases added); see also 8 C.F.R. § 217.4(b)(1) (“Such
removal . . . shall be effected without referral of the alien to an immigration
judge for a determination of deportability . . . .”). This court has stated that
this statute “‘unambiguously’ limits an alien’s means of contesting removal
solely to an application for asylum.” McCarthy v. Mukasey, 555 F.3d 459, 460
(5th Cir. 2009) (quoting Nose, 993 F.2d at 80).
Admittedly, the McCarthy court did not confront the issue Lavery now
raises—whether an alien who denies knowingly signing a VWP waiver can
move to reopen pursuant to 8 C.F.R. § 103.5. Consequently, one might observe
that McCarthy’s expansive language cannot control the instant case. But a
contextual reading of 8 C.F.R. § 103.5 refutes this suggestion. The subpart in
which Section 103.5 is housed is entitled “Applying for Benefits, Surety Bonds,
Fees.” The provisions surrounding Section 103.5 describe the procedures for
obtaining immigration and naturalization benefits. Section 103.2, for
example, describes the processes for submitting and adjudicating benefit
requests. 8 C.F.R. § 103.2. Section 103.3 describes how to appeal denials of
benefit applications filed pursuant to Section 103.2. Id. § 103.3. When read in
conjunction with these related provisions, the scope of 8 C.F.R. § 103.5 is
limited to aliens who affirmatively seek and are then denied select immigration
benefits. It does not have any relevance in VWP removal proceedings.
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Lavery’s reliance on the carve-out in 8 U.S.C. § 1231(a)(5) is equally
unavailing. Section 1231(a)(5) strips from noncitizens who are subject to an
order of reinstatement of removal the right to file a motion to reopen. Lavery
cites this exemption to show that if Congress wished to strip the same right
from persons ordered removed under the VWP, it knew how to do so. That
proposition may be true, but it hardly advances the ball analytically. Congress
used broad proscriptive language in 8 U.S.C. § 1187. It explicitly limited the
grounds on which a VWP alien may challenge removal to an application for
asylum. 8 U.S.C. § 1187(b)(2). And “[w]hen a statute limits a thing to be done
in a particular mode, it includes the negative of any other mode.” Botany
Worsted Mills v. United States, 278 U.S. 282, 289, 49 S. Ct. 129, 132 (1929); see
also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 107 (2012) (defining the negative-
implication canon).
That a motion to reopen is not a procedural vehicle Congress envisioned
for VWP participants is confirmed by the structure of the statute and
regulations that govern removal proceedings more generally. Consider first
8 U.S.C. § 1229a. That section authorizes aliens to “file one motion to reopen.”
8 U.S.C. § 1229a(c)(7)(A). But it applies only to “proceedings under [8 U.S.C.
§ 1229a]”—removal proceedings before an immigration judge. Id. VWP
participants are not entitled to a hearing before an immigration judge. See
8 C.F.R. § 217.4(b)(1). The statutory right to file a motion to reopen thus
appears to be foreclosed to VWP participants (at least those not seeking
asylum).
Consider also 8 C.F.R. §§ 1003.2, 1003.23. These two regulations
authorize aliens to file a motion to reopen in proceedings before the BIA or an
immigration judge. See id. § 1003.2(c)(1) (BIA); id. § 1003.23(b)(3)
(immigration judge). As just noted, VWP participants are not entitled to these
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types of proceedings. See id. § 217.4(b)(1). Thus, they cannot avail themselves
of the procedures afforded by these two regulations.
At first glance, one might postulate that this court’s precedents militate
in favor of reviewing Lavery’s petition. This court, after all, has, on at least
two occasions, considered the very argument Lavery presses—that he did not
knowingly and voluntarily waive his right to a hearing before an immigration
judge. See McCarthy, 555 F.3d at 462; Nose, 993 F.2d at 78–80. The VWP
aliens in McCarthy and Nose, however, were not petitioning from the denial of
a motion to reopen. They followed the procedural channels authorized by
Congress. The VWP entrant in McCarthy, for instance, filed a petition for
review directly to this court after she was ordered removed by DHS, McCarthy,
555 F.3d at 460, and the court rightly exercised jurisdiction pursuant to
8 U.S.C. § 1252(a)(2)(D), id. at 460 n.5. The VWP participant in Nose took a
different approach. Upon expiration of her authorized VWP stay, she filed a
complaint in federal district court seeking declaratory and injunctive relief.
Nose, 993 F.2d at 77. 3 After the district court granted summary judgment for
the government, the VWP alien appealed to this court. Because the district
court’s summary judgment order constituted a final decision, this court could
exercise jurisdiction over the alien’s appeal. See 28 U.S.C. § 1291.
The same cannot be said here. Lavery’s petition is premised on the
denial of a motion that Lavery is not entitled to file in the first instance. This
court accordingly lacks jurisdiction to consider the merits of his petition, and
it must be dismissed. 4 See Stockman, 138 F.3d at 151 (“It is incumbent on all
3 This was permissible at the time because Congress had yet to vest exclusive
jurisdiction to review removal orders in the courts of appeals. See REAL ID Act of 2005, Pub.
L. No. 109-13, Div. B., § 106(a)(1)(B), 119 Stat. 231, 310–11 (2005).
If VWP aliens not seeking asylum are prohibited from filing a motion to reopen
4
pursuant to 8 C.F.R. § 103.5, how are aliens like Lavery—who maintain that they did not
knowingly sign a waiver—supposed to challenge their summary removal? Title 8 U.S.C.
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federal courts to dismiss an action whenever it appears that subject matter
jurisdiction is lacking.”).
For these reasons, the petition for review is DISMISSED.
§ 1252 provides one answer to this question. It states that the courts of appeals have
jurisdiction to review a petition that raises constitutional claims or questions of law. 8 U.S.C.
§ 1252(a)(2)(D). Lavery could have filed a timely petition for review to this court arguing that
he did not knowingly and voluntarily waive his right to a hearing before an immigration
judge. See, e.g., McCarthy, 555 F.3d at 460 (asserting jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(D)); see also Bingham v. Holder, 637 F.3d 1040, 1043 (9th Cir. 2011) (“Though a
VWP entrant waives the right to contest removal except on the basis of asylum, . . . a VWP
entrant can invoke § 1252(a) to challenge a final order of removal on the basis that he or she
is not at all subject to the VWP regime.”).
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