Interesting Visa Waiver Case in District 2 (NY)

[Myopia 93]

I thought that this was an interesting case so I figured I would share the link with you here.

Apparently here in NY an Italian gentleman entered the US on the Visa Waiver Program and overstayed. He tried to adjust with a labor certificate but was denied.

He has been trying to fight his removal since. In the case it mentions the FBI asking about his ties to the Mafia. This case is dated the 26th January 2011.

Case of VWP

I found it interesting because the court remained silent on the matter of his Visa Waiver Overstay. Specifically these parts.

Petitioner Giorgio Galluzzo, a native and citizen of Italy, seeks review of an October 1, 2008 Order of Removal issued under § 217 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1187. U.S. Immigration and Customs Enforcement (”ICE”) issued the removal order without affording Galluzzo a hearing on the ground that Galluzzo waived any right to be heard when he entered the United States through the Visa Waiver Program (“VWP”) established by § 1187. Galluzzo objects that he did not waive his right to a hearing and that his due process rights were therefore violated by the issuance of the removal order without a prior hearing. Additionally, Galluzzo appeals from an order of the United States District Court for the Southern District of New York (Rakoff, J.) entered on March 28, 2009, dismissing for lack of jurisdiction Galluzzo’s civil action challenging the denial of his I-485 application to adjust his immigration status.

For the reasons stated below, we find that, in the absence of evidence of a waiver, Galluzzo’s due process rights were violated by his failure to receive a hearing. We REMAND to allow the Department of Homeland Security to determine whether Galluzzo was substantially prejudiced by this violation. As to the district court’s judgment, we AFFIRM.

And this part

The statute authorizing the VWP stipulates that “[a]n alien may not be provided a waiver under the [VWP] program unless the alien has waived 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)(2). Based on this statutory language, the Government argues that Galluzzo could not have entered the country absent waiver of his right to a hearing and therefore urges us to presume that Galluzzo must have waived his right to contest removal.

We decline to adopt this presumption. In fact, we “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The record is silent as to whether the Form I-94W Departure Record Galluzzo filled out upon his entry actually advised Galluzzo that he would waive his right to a hearing to contest removal by entering the country through the VWP.

More significantly, the record is likewise silent as to whether Galluzzo signed or otherwise agreed to waive his rights to contest removal. We will not presume away an evidentiary problem of the Government’s own making.

Edited January 27, 2011 by Myopia

[JimVaPhuong 4,863]

This tactic failed in the 3rd circuit court district in Bradley v Holder, and the circumstances were nearly identical.

Although we doubt Bradley’s assumption that the Department must prove his waiver by “clear, unequivocal, and convincing evidence,” we hold that the Department has easily met that burden. Bradley admits that he entered the United States under the VWP, and although his declaration is vague, he concedes that he signed a form, presented that form to a customs officer, and was admitted into the United States. (See Bradley Decl. ¶¶ 18, 20.) Consistent with that account, the record contains the top portion of a Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Form, filled out in handwriting “Bradley, Heathcliffe,” date of birth “07 10 72,” and stamped with Bradley’s admission date of “Nov 27 1996.” (App. 8.) Bradley’s admissions, together with the documentary evidence, constitute powerful evidence that Bradley signed a Form I-94W, including a waiver of due process rights, before he was admitted to the United States.

It goes on to say that the evidence becomes irrefutable in light of the fact that a VWP entrant may not be granted admission unless they agree to the waiver, and that barring any evidence to contrary, "agency action is entitled to a presumption of regularity", meaning they can presume CBP followed normal procedures.

BTW, how do you read the rest of that court decision without having to pay $5?

[Myopia 93]

This tactic failed in the 3rd circuit court district in Bradley v Holder, and the circumstances were nearly identical.

Although we doubt Bradley’s assumption that the Department must prove his waiver by “clear, unequivocal, and convincing evidence,” we hold that the Department has easily met that burden. Bradley admits that he entered the United States under the VWP, and although his declaration is vague, he concedes that he signed a form, presented that form to a customs officer, and was admitted into the United States. (See Bradley Decl. ¶¶ 18, 20.) Consistent with that account, the record contains the top portion of a Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Form, filled out in handwriting “Bradley, Heathcliffe,” date of birth “07 10 72,” and stamped with Bradley’s admission date of “Nov 27 1996.” (App. 8.) Bradley’s admissions, together with the documentary evidence, constitute powerful evidence that Bradley signed a Form I-94W, including a waiver of due process rights, before he was admitted to the United States.

It goes on to say that the evidence becomes irrefutable in light of the fact that a VWP entrant may not be granted admission unless they agree to the waiver, and that barring any evidence to contrary, "agency action is entitled to a presumption of regularity", meaning they can presume CBP followed normal procedures.

BTW, how do you read the rest of that court decision without having to pay $5?

I managed to read the court decision like this Other Link

It does seem to be the same but obviously the two courts differ in approach.

Does this sound the same as the other circuits decision?

For the reasons stated below, we find that, in the absence of evidence of a waiver, Galluzzo’s due process rights were violated by his failure to receive a hearing. We REMAND to allow the Department of Homeland Security to determine whether Galluzzo was substantially prejudiced by this violation. As to the district court’s judgment, we AFFIRM.

The court made this statement

Given that Galluzzo had a constitutional right to a hearing absent waiver and that the Government has submitted no explicit evidence of waiver, we must determine whether Galluzzo’s status as a VWP entrant alone is de facto proof that he waived his right to contest removal.

The statute authorizing the VWP stipulates that “[a]n alien may not provided a waiver under the [VWP] program unless the alien has waived 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)(2).Based on this statutory language, the Government argues that Galluzzo could not have entered the country absent waiver of his right to a hearing and therefore urges us to presume that Galluzzo must have waived his right to contest removal. We decline to adopt this presumption.In fact, we “indulge every reasonable presumption against waiver of fundamental constitutional rights.”

That seems like a clear statement that they do not agree that the petitioner waived his right to appeal. Maybe I am reading it incorrectly.

Absent proof of a waiver, Galluzzo suffered a violation of his right to due process when he was denied the opportunity for a hearing prior to the issuance of the removal order.

[JimVaPhuong 4,863]

They're saying that they won't presume he waived his rights because USCIS couldn't produce the signed waiver form. They're not addressing specifically whether a VWP entrant waives their right to appeal or review. If USCIS had the other half of the I-94W then the court's decision would have been the opposite.

Like I said in the other thread, they're treating it like it was simple contract law. USCIS couldn't produce the contract, so the court is saying they can presume the contract doesn't exist. USCIS tried to use the same argument that was successful in the Bradley case, and it didn't work with this court.

Upon further reflection, I don't think this case is a precedent for VWP overstays adjusting status because it hinges on a technicality, which was USCIS' inability to produce a copy of the waiver. Most people now use ESTA, so there is no physical I-94W. They agree to the waiver when they enroll in the ESTA system.

I think we need to wait for a case in the 2nd district where USCIS can prove the appellant agreed to the waiver, and see if the court agrees that USCIS can deny solely because of the overstay.

[Myopia 93]

They're saying that they won't presume he waived his rights because USCIS couldn't produce the signed waiver form. They're not addressing specifically whether a VWP entrant waives their right to appeal or review. If USCIS had the other half of the I-94W then the court's decision would have been the opposite.

Like I said in the other thread, they're treating it like it was simple contract law. USCIS couldn't produce the contract, so the court is saying they can presume the contract doesn't exist. USCIS tried to use the same argument that was successful in the Bradley case, and it didn't work with this court.

Upon further reflection, I don't think this case is a precedent for VWP overstays adjusting status because it hinges on a technicality, which was USCIS' inability to produce a copy of the waiver. Most people now use ESTA, so there is no physical I-94W. They agree to the waiver when they enroll in the ESTA system.

I think we need to wait for a case in the 2nd district where USCIS can prove the appellant agreed to the waiver, and see if the court agrees that USCIS can deny solely because of the overstay.

I think its more than a technicality. The fact that with ESTA you have to explicitly sign a waiver is a huge difference to a presumed agreement with the waiver using the old I-94's. This court chose to remain silent. Obviously they were not comfortable in making a statement for or against it when they clearly believed that this was a problem for the government and something that the government need to resolve.

Yes, it may have worked in the other circuit but not in the second. Interesting.

[JimVaPhuong 4,863]

I think its more than a technicality. The fact that with ESTA you have to explicitly sign a waiver is a huge difference to a presumed agreement with the waiver using the old I-94's. This court chose to remain silent. Obviously they were not comfortable in making a statement for or against it when they clearly believed that this was a problem for the government and something that the government need to resolve.

Yes, it may have worked in the other circuit but not in the second. Interesting.

There is no presumed agreement with an I-94W. It contains the following statement:

WAIVER OF RIGHTS:

I hereby waive any rights to review or appeal of a U.S. Customs and Border Protection officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation.

CERTIFICATION:

I certify that I have read and understand all the questions and statements on this form. The answers I have furnished are true and correct to the best of my knowledge and belief.

Signature........................... Date.................

The problem is that the I-94W form is in two parts. The upper portion has areas where the alien enters his detailed biographic information on the front, and answers the admissibility questions and signs the declaration on the back. The lower part of the form is the entry/departure record we've all seen stapled in someone's passport. USCIS couldn't produce the top portion, which contains the alien's SIGNED waiver of rights, so the court presumed it didn't exist, in spite of the fact that Galluzzo admitted he entered using the VWP, and the lower portion of his I-94W was entered into record.

The court didn't make any ruling about the enforceability of the waiver. They simply said Galluzzo should be afforded due process because the government couldn't prove, to the satisfaction of the court, that he'd waived his rights. They remanded his case back to USCIS for review, presumably so that Galluzzo could have a deportation hearing. I can only guess how that's going to go - Galluzzo is going to claim he never waived his rights when entering with the VWP, and the immigration judge is going to say he was granted entry without complying with the terms of his non-immigrant entry class, and order his deportation.

This guy hasn't won yet.

[Myopia 93]

There is no presumed agreement with an I-94W. It contains the following statement:

WAIVER OF RIGHTS:

I hereby waive any rights to review or appeal of a U.S. Customs and Border Protection officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation.

CERTIFICATION:

I certify that I have read and understand all the questions and statements on this form. The answers I have furnished are true and correct to the best of my knowledge and belief.

Signature........................... Date.................

The problem is that the I-94W form is in two parts. The upper portion has areas where the alien enters his detailed biographic information on the front, and answers the admissibility questions and signs the declaration on the back. The lower part of the form is the entry/departure record we've all seen stapled in someone's passport. USCIS couldn't produce the top portion, which contains the alien's SIGNED waiver of rights, so the court presumed it didn't exist, in spite of the fact that Galluzzo admitted he entered using the VWP, and the lower portion of his I-94W was entered into record.

The court didn't make any ruling about the enforceability of the waiver. They simply said Galluzzo should be afforded due process because the government couldn't prove, to the satisfaction of the court, that he'd waived his rights. They remanded his case back to USCIS for review, presumably so that Galluzzo could have a deportation hearing. I can only guess how that's going to go - Galluzzo is going to claim he never waived his rights when entering with the VWP, and the immigration judge is going to say he was granted entry without complying with the terms of his non-immigrant entry class, and order his deportation.

This guy hasn't won yet.

Aha. Its been so long that I forgot that there were two parts.

I agree, who knows where this will go. If he is having a deportation hearing then I guess he is going to have the due process that he wants so in his case, he does get to appeal before a judge. Regardless of the result.