                   UNITED STATES CO URT O F APPEALS

                                  TENTH CIRCUIT



 M ICH AEL SCH M ITT,

              Petitioner-A ppellant,
       v.                                                 No. 04-1436
 DOUGLAS M AURER, Interim Field
 Director, Immigration and Customs
 Enforcement, and D EPA RTM ENT OF
 HOM ELAND SECURITY,

              Respondents-Appellees.



                                        ORDER
                                 Filed October 19, 2006


Before L UC ER O, B AL DOC K , and M cCO NNELL, Circuit Judges.


      Appellant’s petition for rehearing is granted in part for the purpose of

modifying the previously filed opinion. The revised opinion, filed nunc pro tunc

to June 20, 2006, is attached.

      The petition for rehearing is otherwise denied.


                                               Entered for the Court
                                               Elisabeth A . Shumaker, Clerk


                                               By:
                                                     Deputy Clerk
                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                       PUBLISH
                                                                      June 20, 2006
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 M ICH AEL SCH M ITT,

              Petitioner-A ppellant,
       v.                                               No. 04-1436
 DOUGLAS M AURER, Interim Field
 Director, Immigration and Customs
 Enforcement, and D EPA RTM ENT OF
 HOM ELAND SECURITY,

              Respondents-Appellees.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                   FOR T HE DISTRICT OF COLORADO
                       (D.C. NO . 04-N-1745 (CBS))


Laura L. Lichter of Lichter & Associates, P.C., Denver, Colorado for Petitioner.

Kevin T. Traskos, Assistant United States Attorney (W illiam J. Leone, Acting
United States Attorney with him on the briefs), Denver, Colorado for
Respondents.


Before L UC ER O, B AL DOC K , and M cCO NNELL, Circuit Judges.


M cCO NNELL, Circuit Judge.


      M ichael Schmitt filed a petition for writ of habeas corpus under 28 U.S.C.

§ 2241 in the United States District Court for the District of Colorado,
challenging a final order to remove him on the ground that he had overstayed a

visa issued under the Visa W aiver Program, 8 U.S.C. § 1187. After M r. Schmitt

was deported, the district court denied his habeas petition as moot. He appealed.

Under the recently enacted REAL ID Act, we vacate the district court’s decision,

convert M r. Schmitt’s petition into a petition for review, and deny that petition

for review because M r. Schmitt was properly removable under the Visa W aiver

Program.

                         I. Facts and Procedural H istory

      M r. Schmitt is a citizen of Germany who legally entered the United States

on April 14, 1999. He was admitted under the Visa W aiver Program, 8 U.S.C. §

1187, as a visitor for pleasure. The Visa W aiver Program allows aliens from

designated countries to obtain expedited admission to the United States. Id. As

part of the program, however, participants must agree to two conditions. First,

they must be seeking admission as a nonimmigrant visitor for a period not

exceeding 90 days. Id. § 1187(a)(1). Second, participants must waive any right

“to contest, other than on the basis of an application for asylum, any action for

removal of the alien.” Id. § 1187(b)(2).

      M r. Schmitt signed the waiver, but overstayed his visa. During his stay in

the United States, M r. Schmitt married a United States citizen, Hollis Scoggin,

and in 2001 the couple had a child. Sometime during the marriage, M s. Scoggin

filed an I-130 immediate relative petition to adjust M r. Schmitt’s status to that of

                                           -2-
permanent resident. However, the I-130 petition was never approved and it is

unclear w hether it was denied, withdrawn, or deemed abandoned. M r. Schmitt

claims that M s. Scoggins became abusive during the marriage, and the couple

divorced in the spring of 2004. On July 16, 2004, the Denver office of

Immigration and Customs Enforcement, an agency of the United States

Department of Homeland Security, issued Schmitt an order directing that he be

removed from the United States. The Order of Removal stated that he was

authorized to remain in the United States only until April 14, 1999, and that he

had “remained in the United States longer than authorized.” App. 119. The

Order of Removal also reminded M r. Schmitt that he had waived his right “to

contest any action for deportation, except to apply for asylum” because he was

admitted under the Visa W aiver Program. Id. On July 26, 2004, M r. Schmitt

filed a self-petition as a spouse of an abusive United States citizen for

classification as a permanent resident. M r. Schmitt was taken into custody by the

Department of Homeland Security in A ugust 2004. On August 20, 2004, M r.

Schmitt filed a petition for writ of habeas corpus in the district court seeking an

emergency stay prohibiting removal. The district court entered a temporary

emergency stay of removal until August 26, 2004. However, on August 24, M r.

Schmitt asked the court to withdraw the temporary stay because “the parties ha[d]

reached an interim agreement not to remove Petitioner on or before September 16,

2004.” App. 39. Despite this agreement, M r. Schmitt was removed on September

                                          -3-
2, 2004. Because M r. Schmitt was no longer in custody of the Department of

Homeland Security, the district court dismissed M r. Schmitt’s habeas petition as

moot. M r. Schmitt filed a timely notice of appeal.

                                  II. Jurisdiction

      M r. Schmitt filed and briefed this case as a petition for writ of habeas

corpus under 28 U.S.C. § 2241. On appeal, he challenged the district court’s

decision that his habeas petition was moot because he was no longer “in custody.”

At the time he filed his habeas petition, it was unclear whether district courts or

courts of appeals had jurisdiction over habeas petitions filed by aliens challenging

removal orders. See Jordon v. Attorney Gen. of the United States, 424 F.3d 320,

326 (3d Cir. 2005). However, while this appeal was pending before this Court,

Congress passed the REAL ID Act of 2005, Pub. L. No. 119-13, Div. B, 119 Stat.

302 (codified in scattered sections of 8 U.S.C. (M ay 11, 2005)). The REAL ID

Act clarified that petitions for review filed in the courts of appeals are the “sole

and exclusive means for judicial review” of most orders of removal. Id. § 106(a),

119 Stat. at 310 (codified at 8 U.S.C. § 1252(a)(5)). Thus, district courts no

longer have jurisdiction over habeas petitions challenging orders of removal.

Instead, courts of appeals can consider in the first instance constitutional claims

and questions of law raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D).

      Because the REAL ID Act was passed while M r. Schmitt’s appeal was

pending before this Court, we must ascertain whether the Act applies retroactively

                                          -4-
to his habeas petition. Congress unequivocally provided that the amendments in §

106(a) of the REAL ID Act “take effect upon the date of the enactment of this

division and shall apply to cases in which the final administrative order of

removal, deportation, or exclusion was issued before, on, or after the date of the

enactment.” REAL ID Act § 106(b), 119 Stat. at 311. The Act further provides

that district courts should transfer an alien’s habeas petition challenging a final

order of removal to “the court of appeals for the circuit in which a petition for

review could have been properly filed [under 8 U.S.C. § 1252].” Id. § 106(c),

119 Stat. at 311. The court of appeals, in turn, should treat transferred cases as

though they had been filed as petitions for review. Id.

      Despite the Act’s comprehensive retroactivity discussion, the Act is silent

as to appeals from a district court’s denial of a habeas petition pending before the

court of appeals on the Act’s effective date. Although we have not considered

this question, we agree with the Third Circuit that “it is readily apparent, given

Congress’ clear intent to have all challenges to removal orders heard in a single

forum (the courts of appeals), that those habeas petitions that were pending before

this Court on the effective date of the Real ID Act are properly converted to

petitions for review and retained by this Court.” Bonhometre v. Gonzales, 414

F.3d 442, 446 (3d Cir. 2005) (internal citations omitted). W e therefore have

jurisdiction to consider M r. Schmitt’s petition as a petition for review under 8

U.S.C. § 1252(a).

                                          -5-
                                   III. Discussion

      In his now-converted petition for review, M r. Schmitt argues that the

district director erred in issuing a removal order when M r. Schmitt had a pending

I-130 self-petition for change of status. Respondents contend not only that a self-

petition is not a basis to contest a removal order under the Visa W aiver Program,

but also that M r. Schmitt is barred from making this argument, essentially

because he has failed to exhaust his administrative remedies. W e turn first to the

subject of exhaustion.

A.    Exhaustion of Adm inistrative Rem edies

      The Respondents’ exhaustion position appears to embrace two related

arguments: first, that M r. Schmitt failed to present the present claim concerning

the effect of the self-petition to the agency for review; and second, that M r.

Schmitt failed to present the petition itself to the agency for review . Neither is

persuasive.

      The first argument, that M r. Schmitt failed to present his claim to the

agency, misconceives the expedited removal scheme established by the V isa

W aiver Program. Although it is true that where Congress has entrusted a decision

to administrative agencies, a court of appeals is “not generally empowered to

conduct a de novo inquiry into the matter being reviewed and to reach its own

conclusions based on such an inquiry,” INS v. Orlando Ventura, 537 U.S. 12, 16

(2002) (per curiam) (internal quotation marks omitted), the limitation applies only

                                         -6-
where there is an opportunity for administrative review . Similarly, the statute

governing judicial review of orders of removal requires aliens to “exhaust[] all

administrative remedies available to the alien as of right” before a court may

review a final order of removal. 8 U .S.C. § 1252(d)(1) (emphasis added). This

provision does not prevent a court from reviewing a final order of removal where

there are no administrative remedies available. Under the Visa W aiver Program,

removal of aliens who are not seeking asylum “shall be effected without referral

of the alien to an immigration judge for a determination of deportability.” 8

C.F.R. § 217.4(b)(1) (emphasis added); Handa v. Clark, 401 F.3d 1129, 1135 (9th

Cir. 2005). The Visa W aiver Program therefore ensures that there are no

“administrative remedies available to the alien as of right” that the alien must

exhaust. See 8 U.S.C. § 1252(d)(1). Because there were no administrative

remedies for M r. Schmitt to exhaust, it is improper to deny his claim solely

because he did not present it to the agency.

      The second argument is that this Court should not consider M r. Schmitt’s

self-petition because the document itself was not presented to the agency. The

Respondents apparently assume that an alien can be required to present facts to an

agency even when the alien is not entitled to a hearing before an immigration

judge. W e need not decide whether that assumption is correct because, in seeking

review of the removal order, M r. Schmitt provided the district director with a

copy of the self-petition before M r. Schmitt filed his habeas petition in the district

                                          -7-
court. Because M r. Schmitt gave Respondents an opportunity to consider the

effect of his self-petition on the Removal Order even though he was not entitled

to administrative proceedings, we will proceed to the merits of his claim.

B.    Interaction Between Adjustm ent of Status Provisions and the Visa W aiver
      Program

      M r. Schmitt concedes that he overstayed his visa, but contends that 8

U.S.C. § 1255(a), which allows the Attorney General to change the status of an

alien who has an approved self-petition without requiring the alien to leave the

United States, overrides the Visa W aiver Program’s waiver provision at 8 U.S.C.

§ 1187(b)(2), w hich requires aliens to waive their right to contest their removal.

W e disagree.

      An alien who is abused by his United States citizen spouse may file a self-

petition for classification as a permanent resident. See 8 U.S.C. §

1154(a)(1)(A)(iii). If the petition is approved, the alien’s status “may be adjusted

by the Attorney General, in his discretion and under such regulations as he may

prescribe, to that of an alien lawfully admitted for permanent residence.” Id. §

1255(a). The regulations clarify that an alien admitted under the Visa W aiver

Program may obtain adjustment of status through an immediate relative or self-

petition. 8 C.F.R. § 1245.1(b)(8). Nonetheless, an alien’s ability to apply for

adjustment of status does not entitle the alien to administrative proceedings which

would not otherw ise have been provided. Id. § 1245.2(a)(5)(ii).



                                         -8-
      The Visa W aiver Program, under which M r. Schmitt was admitted to the

United States, unequivocally required him to waive any right “to contest, other

than on the basis of an application for asylum, any action for removal.” 8 U.S.C.

§ 1187(b)(1). Aliens admitted under the Visa W aiver Program thus cannot apply

for any form of relief from deportation, including adjustment of status, other than

through an application for asylum. See Itaeva v. INS, 314 F.3d 1238, 1242 (10th

Cir. 2003) (rejecting alien’s argument that she could apply for suspension of

deportation after having been admitted under the Visa W aiver Program); Berrum -

Garcia v. Com fort, 390 F.3d 1158, 1163 (10th Cir. 2004) (noting that adjustment

of status is a form of relief from removal). Indeed, they are not even entitled to

appear before an immigration judge to present evidence contesting their removal.

8 C.F.R. § 217.4(b)(1); Handa, 401 F.3d at 1135. As M r. Schmitt properly

acknowledges, the Visa W aiver Program statute prevents an alien admitted under

the Visa W aiver Program from contesting a removal order based on a pending

application for adjustment of status.

      Because aliens admitted under the V isa W aiver Program cannot contest

orders of removal on the basis of pending adjustment of status applications, but

the statutes and regulations pertaining to adjustment of status specifically allow

aliens adm itted under the V isa W aiver Program to apply for adjustment of status,

M r. Schmitt claims that there is a “conflict” betw een the two statutes.

Petitioner’s Supp. Br. 5. Any conflict that exists between the two statutes,

                                          -9-
however, is of his own creation. During the first 90 days during which an alien is

lawfully present in the United States under the Visa W aiver Program, the alien

m ay apply for adjustment of status without any conflict arising between the two

statutes. See 8 C.F.R. § 1245.1(b)(8). The statutes authorize two different results

only when an alien overstays his visa and is ordered removed before the alien

files a petition for adjustment of status. 1 Thus, an alien’s decision about when to

file an immediate relative petition controls whether the statutes are in “conflict.”

      Allowing an alien to avoid the waiver provision of the Visa W aiver

Program by creating a conflict with another immigration statute is contrary to

Congress’s purpose in establishing the program. The Visa W aiver Program

provides an expedient method for foreign nationals to travel to the United States

with minimal paperw ork. See Handa, 401 F.3d at 1135. Because the program

makes it easier for foreigners to enter the United States, Congress recognized that

there was a risk for abuse. Id. To minimize that risk, Congress established

expedited procedures that rendered aliens w ho overstay their visa “deportable

‘without any judicial recourse or review, except when claiming asylum.’” Id.

(quoting H.R. Rep. No. 106-564, at 7 (2000)). The statutory text and legislative

history therefore make it abundantly clear that an alien may not challenge an



      1
       Even then, the statutes may not require a contrary result. Nothing in 8
U.S.C. § 1255 appears to preclude the Attorney General from adjusting the status
of an alien who had previously been removed from the country for violating the
Visa W aiver Program.

                                         -10-
Order of Removal issued to an alien who overstayed a visa issued through the

Visa W aiver Program on any grounds other than asylum. Nor do the text or

history of the adjustment of status statutes or regulations suggest a contrary

result. Indeed, the adjustment of status regulations provide that nothing within

them should be read to afford an alien procedures to w hich he is not otherwise

entitled. 8 C.F.R. § 1245.2(a)(5)(ii). That is exactly the relief M r. Schmitt asks

us to provide. Accordingly, we cannot say that Respondents erred in removing

M r. Schmitt without considering his pending self-petition for reclassification. 2

                                   IV. Conclusion

      Having converted M r. Schmitt’s petition for writ of habeas corpus into a

petition for review , w e deny his petition for review.




      2
      Because petitioner was removed on September 2, 2004, prior to the
passage of the Violence Against W omen and Department of Justice
Reeauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (Jan. 5, 2006),
we do not reach the issue of petitioner’s rights to a stay of removal under that
Act.

                                         -11-
