Olsi Shkembi v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________________
No. 21-2592
_______________________
OLSI SHKEMBI,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
BIA-1: A097-669-336
Immigration Judge: Annie S. Garcy
__________________________
Submitted Under Third Circuit L.A.R. 34.1 (a)
June 14, 2022
Before: HARDIMAN, SMITH, and FISHER, Circuit Judges
(Filed July 27, 2022)
Marcia Kasdan
Law Office of Marcia S. Kasdan
127 Main Street
1st Floor
Hackensack, NJ 07601
Counsel for Petitioner
Matthew B. George
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
__________________________
OPINION OF THE COURT
__________________________
SMITH, Circuit Judge.
Olsi Shkembi is a citizen of Albania. He attempted to
enter this country by representing that he was a national of a
country that is a participant in the Visa Waiver Program
(VWP), 8 U.S.C. § 1187, although Albania is not a participant
in that program. His ruse was detected before he could leave
the airport where immigration authorities deemed him
inadmissible. Pursuant to the terms of the VWP, which
precludes contesting one’s removability except by applying for
2
asylum, immigration authorities referred him to an
Immigration Judge (IJ) for asylum-only proceedings. After his
application seeking asylum, withholding of removal, and relief
under the Convention Against Torture (CAT) was denied, he
succeeded in reopening his asylum proceeding. Despite the
VWP’s limitation to asylum-only proceedings, Shkembi
applied for a marriage-based adjustment of status (AOS) and
then withdrew his asylum application at a scheduled hearing
before the IJ. His immigration file was returned to the
Department of Homeland Security, but his AOS application
was not adjudicated. After being taken into custody, he filed
an emergency motion to reopen his asylum proceedings. The
motion was denied.
Shkembi petitioned for review. Shkembi asserts that his
AOS application should have been adjudicated because he is
not bound by the terms of the VWP. This Court has yet to
address whether the terms of the VWP apply to an alien who is
from a non-VWP-participant country but who nevertheless
attempts to enter the United States by using the passport of a
national of a VWP-participant country. We join all of our sister
circuits that have considered this question and now hold that
such an alien, despite his ineligibility for the VWP, is subject
to the terms of the VWP. Accordingly, Shkembi has never had
a right to contest his removability by seeking an AOS and has
been limited to asylum-only proceedings.
Shkembi also contends that the denial of his emergency
motion to reopen deprived him of his right to due process. We
disagree. We will deny the petition for review.
3
I.
Shkembi tried to enter the United States under the
VWP. “The Program allows travel without a visa for short-
term visitors from 38 countries that have entered into a
‘rigorous security partnership’ with the United States.” Trump
v. Hawaii, 138 S. Ct. 2392, 2411 (2018) (citation omitted); see
also 8 U.S.C. § 1187(a). In exchange for the United States’
waiver of its visa requirement, the “VWP visitor must waive
his or her right to contest the government’s admissibility
determinations and removal actions, except that the alien may
contest removal actions on the basis of asylum.” Bradley v.
Att’y Gen., 603 F.3d 235, 238 (3d Cir. 2010); see also 8 U.S.C.
§ 1187(b). “[T]he linchpin of the program is the waiver, which
assures that a [VWP visitor] who comes here . . . will leave on
time and will not raise a host of legal and factual claims to
impede his removal if he overstays.” Handa v. Clark, 401 F.3d
1129, 1135 (9th Cir. 2005).
Shkembi arrived in Miami in 2003 seeking entry
without a visa under the VWP. He used an Italian passport that
had substituted Shkembi’s photograph for that of an Italian
citizen. After immigration authorities detected the altered
photograph on the passport and questioned Shkembi, he
revealed that he was a citizen of Albania. As noted above,
Albania is not a VWP partner. In the Notice of Referral to
Immigration Judge, Form I-863, Shkembi was initially
designated as a VWP applicant and the I-863 was provided to
an Immigration Judge (IJ) with the passport and an I-94W
waiver of appeal signed by Shkembi.
4
In 2004, Shkembi applied for asylum, withholding of
removal, and CAT relief, alleging political persecution. In the
processing of his application, Shkembi was designated as a
“VWP violator.” CAR1163. The IJ denied Shkembi’s
application in its entirety, and the Board of Immigration
Appeals (BIA) affirmed that order. The denial of relief
resulted in a final order, and Shkembi was subject to removal
without further process. Shehu v. Att’y Gen., 482 F.3d 652,
656 (3d Cir. 2007). We upheld the BIA’s decision. Shkembi
v. Att’y Gen., 380 F. App’x 207 (3d Cir. 2010) (per curiam).
Although Shkembi could have been removed, for
reasons not explained in the record, he remained in the United
States. He married, and he and his wife had two children who
were born in this country. In 2013, his wife filed an I-130 form
to facilitate her husband’s efforts to apply for an AOS. On
March 11, 2014, his wife’s I-130 request was approved.
In 2019, Shkembi succeeded in reopening his asylum
proceeding based on changed country conditions in Albania.
Thereafter, in January 2020, Shkembi, seeking an AOS, filed
an application for waiver of certain grounds of inadmissibility,
Form I-601, noting in his application that his wife was now a
United States citizen. Days before the scheduled IJ hearing on
his reopened asylum application, Shkembi moved to terminate
the proceeding. In his motion, Shkembi acknowledged that the
IJ could not adjust his status because he had been before the IJ
in asylum-only proceedings under the VWP, but sought to
remand his case to the United States Citizenship and
Immigration Services (USCIS) so it could adjudicate his
marriage-based AOS application.
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At the hearing, the Government opposed the motion to
terminate or to administratively close Shkembi’s case.
Mindful of the remand from the BIA reopening the asylum
case, the IJ took steps to confirm that termination was truly the
action Shkembi was requesting. The IJ admitted the I-589
asylum application as an exhibit and Shkembi, after being
sworn-in to testify, affirmed that he would “not proceed with
the 589.” CAR78. When the IJ asked again, Shkembi
confirmed that he did not want to proceed with his asylum
claim. He denied being threatened or forced to give up his right
to pursue his I-589 application. He also denied being under the
influence of drugs or alcohol, or that he suffered from a mental
illness. In response to the IJ’s inquiry of whether Shkembi
understood that she could not “guarantee” what would
transpire before USCIS, Shkembi confirmed that he
understood. CAR79.
Before the hearing concluded, Shkembi’s counsel
sought to preserve the legal issue that “a false visa waiver in
contrast to a genuine visa waiver should not be subject to
restrictions under [§ 1187] for asylum only relief.” CAR80.
The IJ declined to address that issue, stating that she had “no
authority to consider such an argument.” Id.
The IJ denied the motion to terminate. In her decision,
the IJ noted that the Government had “not agreed to
termination or dismissal of these proceedings.” CAR91. Then,
after reciting the procedural history of reopening to permit
Shkembi to proceed on his I-589 asylum application, the
decision stated that Shkembi had “testified that he will not
proceed on the I-589 application . . . before this court, and this
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court finds that [Shkembi] knowingly and voluntarily so
testified.” Id. The IJ took “no further action” on Shkembi’s I-
589 and “returned” the matter to the Department of Homeland
Security (DHS). Id.
Months later, Immigration and Customs Enforcement
took Shkembi into custody. Shkembi promptly filed an
emergency motion to reopen his asylum proceeding, seeking
to reinstate his I-589. The DHS opposed the motion. The IJ
denied the emergency motion. After reciting the procedural
history in which Shkembi failed to take advantage of the
“golden opportunity” that he had been afforded when his case
was reopened, choosing instead to withdraw his I-589
application, the IJ noted that Shkembi’s new I-589 asylum
application mirrored the earlier application he had withdrawn.
Because motions to reopen require a movant to present “new
facts” that were not previously available, 8 C.F.R. §
1003.23(b)(3), and because Shkembi sought “to reinstate the
same application that he abandoned,” CAR59, the IJ concluded
that he had failed to clear the hurdles for reopening. The IJ
also determined that there was no basis to allow a sua sponte
reopening. Shkembi unsuccessfully appealed to the BIA.
This timely petition for review followed.1 Shkembi
raises two issues. First, he contends that as a VWP applicant
1
The IJ had jurisdiction under 8 C.F.R. § 1208.2(c)(iii). The
BIA had appellate jurisdiction under 8 C.F.R. § 1003.1(b)(9).
Because the “denial of a VWP applicant’s petition for asylum,
withholding of removal, and relief under the CAT constitutes
‘a final order of removal,’” Shehu, 482 F.3d at 656 (citation
7
who attempted to enter the U.S. by using the altered passport
of a national from a VWP participating country, but who never
received the lawful 90-day visit, he did not waive his right to
contest removal through an adjustment of status. Therefore, he
submits that his AOS application should have been decided.
Second, he asserts that the denial of his emergency motion to
reopen was fundamentally unjust and deprived him of the due
process to which he is entitled under the Fifth Amendment.
II.
We review both the BIA and the IJ’s decisions
inasmuch as the BIA relied on the IJ’s findings and her
decision. See B.C. v. Att’y Gen., 12 F.4th 306, 313 (3d Cir.
2021). Our review of the factual determinations is for
substantial evidence, and we apply plenary review to legal
issues. Id. The denial of a motion to reopen is reviewed for an
abuse of discretion. Darby v. Att’y Gen., 1 F.4th 151, 159 (3d
Cir. 2021).
III.
In an effort to obtain an adjudication of his AOS
application, Shkembi points out that VWP entrants receive a
90-day period in this country in exchange for waiving their
rights to contest removability determinations, except through
an asylum application. 8 U.S.C. §§ 1187(a)(1), (b). In
Shkembi’s view, because he did not receive the 90-day lawful
stay after immigration authorities discovered that he had
omitted), we have jurisdiction under 8 U.S.C. § 1252(a)(1).
See Bradley, 603 F.3d at 237 n.1.
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falsely presented himself as an Italian national, he is not bound
by the VWP waiver of the right to contest removability.
In Bradley, we considered and rejected the argument of
a VWP entrant that his waiver of the right to contest
removability was invalid. 603 F.3d at 239–41. Bradley, who
was a citizen of New Zealand, lawfully entered the United
States under the VWP, but overstayed the 90-day period by
almost a decade. When he applied to adjust his status to that
of a lawful permanent resident based on his marriage to a
United States citizen, he was arrested and ordered removed.
He challenged his removal on several grounds. First, he argued
the removal order was invalid because the Government could
not produce the signed I-94. He also asserted that his waiver
was neither knowing nor voluntary because he was intoxicated
when he signed it. We rejected his contentions.
Alternatively, Bradley argued that he should be eligible
to apply for a marriage-based AOS because § 1255(c)(4)
specifically allows VWP entrants to do so. 603 F.3d at 241–
42 (considering 8 U.S.C. § 1255(c)(4)). We acknowledged
that § 1255(c)(4) “carve[d] out an exception for VWP entrants
seeking to adjust their status on the basis of an immediate-
relative petition.” Id. at 242 n.6. But this exception, as six of
our sister courts of appeals had determined, did not extend
beyond the 90-day authorized stay. Id. n.7 (listing cases). We
agreed with the Seventh Circuit’s analysis that:
[a]t first glance, it appears that there is a conflict
between the adjustment-of-status statute, 8
U.S.C. § 1255(c)(4), and the VWP statute, 8
U.S.C. § 1187(b)(2). Upon closer examination,
9
however, we believe that they can be reconciled.
During the time when a nonimmigrant visitor is
within the VWP’s 90-day window, she may
submit an adjustment-of-status application based
on an immediate relative. An application
submitted at that time would not represent a
challenge to removal. After the visitor overstays
her 90-day visit, however, the effect of the VWP
waiver kicks in, preventing any objection to
removal (except for asylum), including one
based on adjustment of status.
Id. at 242 (quoting Bayo v. Napolitano, 593 F.3d 495, 507 (7th
Cir. 2010) (en banc)). We went on to hold that although
Bradley had been eligible for an adjustment when he entered
the United States, he could no longer apply for adjustment
“after the expiration of his 90-day stay . . . [because] Bradley’s
VWP waiver squarely foreclose[d] him from contesting his
removal on this basis.” Id.Shkembi seeks to avoid Bradley’s holding by
highlighting that Bradley lawfully entered under the VWP and
enjoyed the 90-day stay. Unlike Bradley, Shkembi points out
he did not have a lawful 90-day visitation period as his
fraudulent scheme to gain entry was detected before he even
left the airport. That distinction, he contends, renders his
waiver inoperative.
Shkembi fails to appreciate that the Seventh Circuit’s en
banc decision in Bayo, which we relied on in Bradley, rejected
the alien’s contention that his VWP waiver was void because
he had entered the United States using the stolen passport of a
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Belgian citizen and had not been entitled to enter the United
States under the VWP. 593 F.3d at 499–502. In examining the
text of § 1187, the Bayo Court acknowledged that the statute
was silent as to the applicability of the VWP to citizens of non-
VWP countries. The Court concluded that “the Attorney
General appropriately . . . acted here to clarify the scope of the
VWP” by enacting regulation § 217.4(a) to “address the
situation of ineligible aliens entering fraudulently under the
VWP.” Id. at 501 (citing 8 C.F.R. § 217.4(a)). That regulation
filled the gap in § 1187 “by applying the terms of the program
to those who enter under the VWP, even if they are ineligible
for it.”2 Id. In the Seventh Circuit’s view, this regulation was
reasonable and entitled to deference. Id. (citing Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984)); see also Riera-Riera v. Lynch, 841 F.3d 1077,
1080 (9th Cir. 2016) (concluding that the regulation
interpreting § 1187 is reasonable and that the program’s
2
Subsection 217.4(a) specifies that aliens who apply for
admission to the United States under the VWP, but are not
eligible under that program or for admission under § 1182 or
because they possessed and “present[ed] fraudulent or
counterfeit travel documents, will be refused admission into
the United States and removed. Such refusal and removal . . .
shall be effected without referral of the alien to an immigration
judge . . . except” if he or she “applies for asylum[.]” 8 C.F.R.
§ 217.4(a)(1). In other words, an alien who fraudulently enters
under the VWP is “subject to the restrictions on asylum-only
proceedings” and the IJ cannot address issues of removability.
Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008) (citing 8
C.F.R. § 1208.2(c)(3)(i)).
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restrictions apply to those who enter under the VWP even
though they are ineligible); Zine v. Mukasey, 517 F.3d 535,
542–43 (8th Cir. 2008) (concluding § 217.4(a)(1) subjects
aliens, who present fraudulent documents to enter under the
VWP, to the program’s restriction to asylum-only
proceedings). Accordingly, the Bayo Court determined that
the waiver the alien had executed to enter the United States
under the VWP, even though he was ineligible, operated as a
bar to his applying for an AOS after the 90-day visit had
expired. 593 F.3d at 507.
Unlike the aliens in Bayo, Zine, and Riera-Riera, all of
whom entered the country under the VWP using altered
passports and then overstayed, Shkembi’s attempt to gain entry
by presenting a falsified passport resulted in his detention
before he could even leave the airport at which he had arrived
in the United States. CAR227. That distinction, however, is a
difference that is of no moment. By its terms, the regulation
pertains to any alien who “applies for admission under the”
VWP, but is ineligible under the program or § 1182 or “is in
possession of and presents fraudulent or counterfeit travel
documents.” 8 C.F.R. § 217.4(a)(1). In short, if an alien is not
eligible to enter under the VWP, but does so or attempts to do
so, then he or she is removable and may not contest his or her
removability except by seeking asylum. Entering or
attempting to enter the United States under the VWP by using
fraudulent documents from a VWP-participating country
violates the VWP and subjects that alien to the terms of the
VWP, which includes the restriction to asylum-only
proceedings.
12
The Second Circuit reached this same conclusion in
Shabaj v. Holder, 602 F.3d 103, 105–06 (2d Cir. 2010). Like
Shkembi, Shabaj was an Albanian who fraudulently presented
an Italian passport in an attempt to enter under the VWP,
resulting in his detention. While still in this country, Shabaj
married a United States citizen and applied for an AOS. He
asserted that he was not bound by the terms of the VWP
because, as an Albanian citizen, he had been ineligible for entry
under the VWP. The Second Circuit observed that “[t]he
regulation implementing the statute treats someone who
applies under the Visa Waiver Program using fraudulent
papers as bound by its provisions.” Id. at 105. In holding that
Shabaj was bound by the terms of the program, the Court
declared: “[A] fraudulent Visa Waiver program applicant [] is
a Visa Waiver Program applicant nevertheless.” Id. at 106.
We agree, and hold, consistent with regulation § 217.4(a)(1),
that an alien’s attempt to enter the United States under the
VWP by presenting fraudulent travel documents subjects that
alien to the terms of the VWP. Those terms limit the alien to
asylum-only proceedings. It makes no difference if the alien
violated the VWP by overstaying after lawful entry as in
Bradley, or by using fraudulent documents to enter or to
attempt to enter the United States under the VWP. Once the
alien has attempted to benefit from the VWP, he or she is
bound by its terms.
Accordingly, because Shkembi attempted to enter the
United States by using an altered passport of a national from a
VWP participating country, his waiver of the right to contest
his removability was effective, and he was not entitled to
13
pursue an AOS when he applied in 2019. In short, AOS was
never a viable option for him.
IV.
Finally, we turn to Shkembi’s contention that the IJ
erred by denying his emergency motion to reopen after he had
been taken into custody. The IJ carefully considered this
motion, recited the procedural history, noted Shkembi’s
“[s]ympathetic [s]ituation,” CAR38, and then turned to the
legal requirements for reopening set forth in 8 C.F.R.
§ 1003.23(b)(3), ultimately concluding that Shkembi failed to
meet his burden. And the IJ explained why sua sponte
reopening was not warranted. We conclude that the IJ did not
abuse her discretion in denying reopening.
Nor is there any basis for concluding that Shkembi was
deprived of his right to due process. Due process requires that
an alien is “provided the right to a full and fair hearing that
allows [him] a reasonable opportunity to present evidence on
[his] behalf.” Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d
Cir. 2003) (internal quotation marks and citation omitted). The
record confirms that Shkembi had this opportunity, but chose
to withdraw his I-589. Unhappy with his own decision, he now
asserts that he was deprived of his right to due process by the
IJ’s denial of his emergency motion to reopen and the BIA’s
dismissal of his appeal. But an “alien [has no] constitutionally
protected interest in reopening” his case. Darby, 1 F.4th at
166. We conclude that, in light of his violation of the VWP by
attempting to enter the United States by presenting the
fraudulent passport of a national from a VWP participating
14
country, Shkembi has been afforded all of the process to which
he was entitled.
For the reasons set forth above, we will deny Shkembi’s
petition for review.
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