Yancarlos Mendez Perez v. Matthew G. Whitaker ( 2019 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0017n.06
No. 18-3050
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
YANCARLOS MENDEZ PEREZ, ) Jan 14, 2019
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
MATTHEW G. WHITAKER, Acting Attorney ) DEPARTMENT OF
General, ) HOMELAND SECURITY
)
Respondent. ) OPINION
)
BEFORE: GIBBONS, ROGERS, and STRANCH, Circuit Judges.
PER CURIAM. The Visa Waiver Program (VWP) allows certain foreign nationals to
visit the United States without a visa for 90 days or less. To qualify for the program, visitors must
agree to waive any right to contest their removal from the country except on the basis of an asylum
application. After entering the United States under the VWP, Yancarlos Mendez Perez remained
in the country for almost three years. When Department of Homeland Security (DHS) officials
discovered that he had overstayed his 90-day travel allowance, they removed him from the United
States. He now seeks reversal of DHS’s removal order. Though we sympathize with Mendez
Perez’s difficult circumstances, we are bound by the VWP’s legal framework and our own
precedents. Because Mendez Perez waived his right to challenge his removal under the VWP, we
are constrained to DENY his petition.
No. 18-3050, Mendez Perez v. Whitaker
BACKGROUND
A. Factual and Procedural History
Mendez Perez entered the United States under the VWP in January 2015 and remained in
the country after his 90-day travel allowance had expired. While in the United States, Mendez
Perez began dating Sandrita Mendoza, whom he later married. Mendoza has a young child who
is paralyzed from the waist down and requires extensive at-home medical care. Mendez Perez
helped take care of the child and gave him and Mendoza financial support. In November 2017,
Mendez Perez was pulled over and arrested for driving without a license. During his detention,
DHS discovered that he had entered the country under the VWP almost three years before. The
agency began removal proceedings shortly thereafter and issued a final removal order in December
2017.
Mendez Perez asked DHS to stay his removal in January 2018. After DHS denied that
request, he asked this court for a stay of removal pending our resolution of this case. We denied a
stay in February 2018, and he was deported the following month. Mendez Perez now asks us to
reverse DHS’s removal order.1
B. Legal Framework
We begin with the VWP. Typically, a nonimmigrant visitor to the United States will be
denied entry if he “is not in possession of a valid nonimmigrant visa or border crossing
identification card at the time of application for admission . . . .” 8 U.S.C. § 1182(a)(7)(B)(i)(II).
But the VWP provides an exception to this rule. Under the program, eligible foreign nationals
may “apply for admission to the United States for 90 days or less as nonimmigrant visitors for
1
In addition to contesting DHS’s removal order, Mendez Perez appears to challenge DHS’s denial of his
petition to stay removal. To the extent that Mendez Perez wishes to appeal that denial, we must reject his
challenge because “[w]e do not have jurisdiction over denials of petitions to stay removal.” Casillas v.
Holder, 656 F.3d 273, 274 (6th Cir. 2011).
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No. 18-3050, Mendez Perez v. Whitaker
business or pleasure without first obtaining a nonimmigrant visa.” Lacey v. Gonzales, 499 F.3d
514, 516 (6th Cir. 2007) (citation and internal quotation marks omitted); see also 8 U.S.C.
§ 1187(a)(1). In exchange for waiving the visa requirement, the VWP requires visitors to waive
their right “to contest, other than on the basis of an application for asylum, any action for” their
removal while in the country under the program. 8 U.S.C. § 1187(b)(2). “Ordinarily, due to the
reciprocal-waiver requirement, federal courts lack jurisdiction over non-asylum-based, due-
process challenges to the removal of a VWP” visitor. Lacey, 499 F.3d at 518. On appeal, therefore,
we retain jurisdiction to answer two questions: first, whether Mendez Perez entered the United
States under the VWP; and second, whether he asked for asylum.
ANALYSIS
Because we must confine the scope of our inquiry to the above two questions, our analysis
is brief. Mendez Perez does not dispute that he entered the country under the VWP, so he cannot
challenge the validity of the waiver of his right to appeal DHS’s removal order. And he likewise
admits that he has not filed an asylum application, so he does not qualify for the only exception to
that waiver. We sympathize with Mendez Perez’s desire to return to the United States to support
his family and care for his stepson, but under the statutes at issue here and our own precedents, we
lack the power to undo his waiver. Having found no exception to Mendez Perez’s waiver of his
right to challenge DHS’s removal order, we must DENY his petition.
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