Harold Riera-Riera v. Loretta E. Lynch , 841 F.3d 1077 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAROLD JOHN RIERA-RIERA, No. 13-73062
Petitioner,
Agency No.
v. A200-245-971
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 10, 2016*
Pasadena, California
Filed November 28, 2016
Before: Mary M. Schroeder and Jay S. Bybee, Circuit
Judges, and William E. Smith,** Chief District Judge.
Opinion by Judge Schroeder
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable William E. Smith, Chief United States District
Judge for the District of Rhode Island, sitting by designation.
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SUMMARY***
Immigration
The panel denied Harold Riera-Riera’s petition for
review of the Board of Immigration Appeals’ decision
refusing to consider his adjustment of status application
because he entered the United States using a fraudulent
Italian passport to gain the benefits of the Visa Waiver
Program (VWP).
The panel held as a matter of first impression that the BIA
properly concluded that Riera-Riera could not seek
adjustment because he entered, albeit fraudulently, under
the VWP. The panel held that an alien who fraudulently
enters under the VWP is subject to the VWP’s limitations,
including waiving any challenge to deportation other than
asylum.
The panel also held that the BIA did not err in denying
Riera-Riera’s applications for asylum, withholding of
removal and relief under the Convention Against Torture,
because he failed to establish a nexus to a protected
ground, and the harm he suffered was insufficient for CAT
protection.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RIERA-RIERA V. LYNCH 3
COUNSEL
Jorget T. Cabrera, Studio City, California, for Petitioner.
Stefanie Notarino Hennes, Trial Attorney; Leslie McKay,
Assistant Director; Joyce R. Branda, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
SCHROEDER, Circuit Judge:
Petitioner Harold Riera-Riera, a native and citizen of
Peru, petitions for review of the Board of Immigration
Appeals’s (“BIA”) refusal to consider his application for
adjustment of status in proceedings limited to consideration
of relief related to asylum. Riera had fraudulently entered the
United States under an Italian passport in order to gain the
benefits of the Visa Waiver Program (“VWP”), that carried
with it a limitation of his rights to contest deportation. He
argues that since he is not now, and never has been, an alien
eligible for lawful admission under the VWP, he is not
subject to its limitation. While this is an issue of first
impression in this circuit, we now join the other circuits that
have rejected a similar argument. Given VWP’s limitation of
relief available in deportation proceedings, the BIA properly
refused to consider the application for adjustment of status.
The denial of asylum and related relief, as well as the denial
of the claim under the Convention Against Torture (“CAT”),
were supported by substantial evidence. We therefore deny
the petition.
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BACKGROUND
We begin with the legal and factual background. The
VWP allows certain aliens who are “[n]ational[s] of program
countr[ies]” to enter the United States without a visa.
8 U.S.C. § 1187(a)(2). Admission under the VWP is subject
to numerous restrictions, most relevant here are that the alien
present a valid passport from a qualifying country that offers
reciprocal rights to American citizens and that the alien
present a return ticket for departure from the United States
within ninety days. Id. Most importantly for this case, the
VWP requires that the alien agree not to “review or appeal
. . . an immigration officer’s determination as to the
admissibility of the alien at the port of entry into the United
States” or “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). We have previously held that this
restriction is lawful. See Handa v. Clark, 401 F.3d 1129,
1135 (9th Cir. 2005).
Riera entered the United States in 1998 using an Italian
passport; Riera is a Peruvian citizen, however, and has never
been an Italian citizen. Since Italian nationals are able to
enter the United States under the VWP, while Peruvian
nationals are not, Riera used this fraudulently acquired Italian
passport to enter the United States without a visa. He agreed
to all conditions of VWP entry and presumably presented his
return ticket for a departure within ninety days.
Riera did not depart within ninety days; he remained in
the United States. In 2011, Riera came to the attention of the
Department of Homeland Security. After initially placing
Riera in removal proceedings, the Department realized that he
had entered under the VWP, and his removal proceedings
RIERA-RIERA V. LYNCH 5
were stayed. The Department then proceeded to order his
removal under the VWP. After ordering his removal, the
Department referred him to an Immigration Judge (“IJ”) for
asylum only proceedings. Before both the IJ and the BIA,
Riera argued that since he was not an Italian national, and
since his entry under the VWP was fraudulent, he could not
be bound to the VWP’s restrictions, and he was entitled to
have an IJ determine both his removeablity and his petition
for adjustment of status. The IJ and the BIA determined that
there was no jurisdiction under the VWP for consideration of
his non-asylum claims. They considered and denied the
asylum and CAT claims.
DISCUSSION
Whether an ineligible alien who fraudulently enters under
the VWP is bound by the VWP’s limitations, including its
waiver of any challenge to deportation other than asylum, has
never been addressed by this Circuit. The Second, Seventh,
and Eighth Circuits, however, have all considered this issue,
holding that the VWP limitations apply to those admitted
under the program without being eligible. See Shabaj v.
Holder, 602 F.3d 103, 105–06 (2d Cir. 2010) (same); Bayo v.
Napolitano, 593 F.3d 495, 501–02 (7th Cir. 2010) (en banc)
(holding that such entrants are bound by the VWP
limitations); Zine v. Mukasey, 517 F.3d 535, 542–43 (8th
Cir. 2008) (same). Similarly, the BIA has ruled that the
restrictions of the VWP bind ineligible aliens who enter the
country using fraudulent travel documents. See In re
Kanagasundram, 22 I. &. N. Dec. 963, 964 (BIA 1999).
Though the statute enacting the VWP does not expressly
address fraudulent entrants, the Attorney General has filled in
that gap via regulation, issuing a rule that those who
6 RIERA-RIERA V. LYNCH
“present[] fraudulent or counterfeit travel documents” will be
removed “without referral of the alien to an immigration
judge,” unless the alien “applies for asylum.” 8 C.F.R.
§ 217.4(a). All of the circuit decisions rely upon the
regulation.
There is no real issue concerning the validity of the
regulation interpreting the statute. We would evaluate that
interpretation under the two-step test from Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842–43 (1984). The first step is whether the statute is
ambiguous; it is. The statute does not address what happens
should a national of a non-VWP country apply or receive
entry under the VWP. The second step is whether the
Attorney General’s interpretation is reasonable; it is. Indeed,
as the Seventh Circuit has observed, “[t]here is little reason
to think that Congress would have wanted to confer the
benefits of the VWP on ineligible aliens while sparing them
the costs of entering under the [VWP].” Bayo, 593 F.3d at
501–02.
Riera raises a further argument, which is that the refusal
to consider his adjustment of status petition or to re-open
removal proceedings to allow for it to be considered, denied
him due process. Even assuming without deciding that due
process attaches to VWP admittees, however, the restrictions
of the VWP comport with whatever due process such
admittees are entitled. We recognized this in Bingham v.
Holder, 637 F.3d 1040, 1047 (9th Cir. 2011). In that case, we
observed that the procedure required by the VWP is neither
complex nor unfair. The alien signing the VWP forms gives
up any right to challenge removal, except on asylum grounds,
if he overstays the grant of time permitted by the VWP.
Other courts have come to a similar conclusion. See Bradley
RIERA-RIERA V. LYNCH 7
v. Attorney Gen. of the U.S., 603 F.3d 235, 240–43 (3d Cir.
2010); Bayo, 593 F.3d at 505.
Petitioner also seeks review of the denial of his asylum
and withholding of removal claims. Riera is required to show
that he has suffered persecution or has a well-founded fear of
future persecution on account of one of five protected
statutory grounds: race, religion, nationality, political
opinion, or membership in a particular social group. See
8 U.S.C. § 1158(b)(1)(B)(i). Riera has never identified, let
alone argued, the ground on which he has been or would be
persecuted. This issue has been waived. The lack of a nexus
to a protected ground is dispositive of his asylum and
withholding of removal claims. See Parussimova v.
Mukasey, 555 F.3d 734, 740 (9th Cir. 2009).
With respect to the CAT claim, nothing in the record
compels a contrary conclusion to that of the IJ. See 8 U.S.C.
§ 1252(b)(4)(B). The harm that Riera suffered before he left
Peru did not rise to the level of torture, and he otherwise
relies on generalized evidence, which is insufficient for
protection under CAT. See Delgado-Ortiz v. Holder,
600 F.3d 1148, 1152 (9th Cir. 2010).
PETITION DENIED.