11-445-ag
Gjerjaj v. Holder

                          UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT
                          _______________________________________


                                     August Term 2011
         Submitted: February 22, 2012                     Decided: August 28, 2012
                                    Docket No. 11-445-ag
                          _______________________________________
                                      DANIELA GJERJAJ,
                                                                                   Petitioner,
                                              v.
                    ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
                                                                                  Respondent.
                         ______________________________________



Before: LEVAL, SACK, and HALL, Circuit Judges.

         Petitioner, a native and citizen of Albania, seeks review of a Order of Removal

issued on January 24, 2011, by U.S. Immigration and Customs Enforcement (“ICE”).

Petitioner entered the United States through the Visa Waiver Program (“VWP”), using a

fraudulent Italian passport. Petitioner signed a waiver, as all VWP participants are

required to do, agreeing to waive “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).

Petitioner was served with the now-contested Order of Removal six years after she

initially entered the country under the auspices of the VWP, which allows certain foreign

citizens expedited entry into this country for a period of 90 days in exchange for a waiver

of rights. During her time here, Petitioner unsuccessfully sought asylum but also married
a United States citizen, which led her to apply for an adjustment of status. That

adjustment of status application, however, was denied because Petitioner became subject

to the Order of Removal. Petitioner argues that the adjustment of status application

should be adjudicated before she is ordered removed and that she should have the benefit

of full removal proceedings. We hold that Petitioner knowingly and voluntarily waived

her right to contest her removal on any basis other than asylum, and having participated in

her asylum-only proceeding, Petitioner may not contest removal on the ground that she

filed an adjustment of status application after she overstayed the time she was authorized

to be in this country. In so holding, we join our sister circuits who have considered this

issue and have all concluded that a VWP participant may not contest his or her removal

on the basis of an adjustment of status application filed after the 90-day period during

which a VWP participant may stay in the country.

       PETITION DENIED.



                                                                 Mary Elizabeth Delli-Pizzi,
                                                               Babylon Village, New York,
                                                              for Petitioner Daniela Gjerjaj

                                                   Tony West, Assistant Attorney General;
                                                  Ernesto H. Molina, Jr., Assistant Director;
                                                         Dana M. Camilleri, Trial Attorney,
                                                           Office of Immigration Litigation,
                                                       United States Department of Justice,
                                                                          Washington D.C.,
                                                        for Respondent Eric H. Holder, Jr.,
                                                            United States Attorney General.


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       PER CURIAM:

       Petitioner Daniela Gjerjaj,1 a native and citizen of Albania, seeks review of a Order

of Removal issued on January 24, 2011, by U.S. Immigration and Customs Enforcement

(“ICE”). Gaining entry into the United States through the Visa Waiver Program

(“VWP”), Gjerjaj arrived in January 2005 using a fraudulent Italian passport. As a VWP

participant, Gjerjaj had a 90-day window during which she could lawfully remain in the

country. And like all VWP participants, she signed a waiver agreeing to waive “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). She subsequently applied for asylum, and the

matter was referred to an immigration judge, who denied her application. While her

appeal of that decision was pending, she filed an adjustment of status application seeking

to remain in this country on the grounds that she was married to a United States citizen.

After Gjerjaj had exhausted her asylum appeals, she was ordered removed based on her

status as a VWP participant who stayed past 90 days and has had an opportunity to

participate in asylum-only proceedings. As a result of the removal order, her adjustment

of status application was denied. Gjerjaj petitions this Court, requesting full removal

procedures. Further, she argues that she was entitled to a decision on the merits of her

adjustment of status application, and that the government’s issuance of a removal order

without a hearing and without consideration of her adjustment of status application



          1
              Gjerjaj’s surname is sometimes spelled Gjergjaj.

                                             -3-
amounts to due process and equal protection violations. We hold that Gjerjaj knowingly

and voluntarily waived her right to contest her removal on any basis other than asylum,

and having had her asylum-only proceeding, Gjerjaj may not now contest removal on the

ground that she filed an adjustment of status application after she overstayed the time she

was authorized to be in this country. In so holding, we join our sister circuits who have

considered this issue and have concluded that a VWP participant may not contest his or

her removal on the basis of adjustment of status application filed after the 90-day period

during which a VWP participant may stay in the country.

                                       Background

       Gjerjaj entered the United States under the VWP in January 2005 using a

fraudulent Italian passport bearing the name “Luciana Liberti.”2 Using the name Liberti,

she signed the Form I-94W, which contains a clause required by statute acknowledging

that by participating in the VWP, she waives any right to contest her removal, other than

on a basis advanced by way of an asylum application. 8 U.S.C. § 1187(b)(2). The

government has produced a copy of the signed I-94W, with the following clause

appearing directly below Gjerjaj’s signature:

       WAIVER OF RIGHTS: I hereby waive any rights to review or appeal of an
       immigration officer’s determination as to my admissibility, or to contest,
       other than on the basis of application for asylum, any action in deportation.

       Resp.’s Br., Ex. A.


          2
            Gjerjaj entered the United States with two children who are not parties to
   these proceedings because their status was adjusted to that of Lawful Permanent
   Residents.

                                            -4-
       In March 2005, Gjerjaj filed an application for asylum, withholding of removal,

and protection under the Convention Against Torture (“CAT”), alleging that her husband

had been killed by socialists in Albania due to his involvement with the Democratic

Party. As a VWP participant, she was referred to an immigration judge (“IJ”) for her

asylum-only proceedings. The IJ denied her application for relief, finding that she was

credible but concluding that she was ineligible for asylum. In April 2009, the Board of

Immigration Appeals (“BIA”) dismissed Gjerjaj’s appeal from that decision, agreeing

with the IJ that she had not established eligibility. In December 2009, the Eleventh

Circuit denied Gjerjaj’s petition for review of the BIA’s decision. See Gjergjaj v. U.S.

Att’y Gen., 358 F. App’x 98 (11th Cir. 2009) (unpublished).

       About four years after she had overstayed the initial 90-day period of authorized

time a VWP participant may stay in this country, but before the completion of her asylum

proceedings, in April 2009 Gjerjaj married a United States citizen who filed on her behalf

an I-130 Petition for Alien Relative. About three months later, the petition was approved,

and Gjerjaj applied for adjustment of status. Thereafter the U.S. Citizenship and

Immigration Services (“USCIS”) denied Gjerjaj’s adjustment of status application based

on its conclusion that aliens who enter under the VWP and who have been placed in

asylum-only proceedings are ineligible to adjust their status even if an immediate relative

petition has been approved. Gjerjaj filed a timely motion for reconsideration in

December 2010. In January 2011, however, Gjerjaj was served with an order of removal

issued by ICE. The removal order was issued on the ground that Gjerjaj had overstayed

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the period she was lawfully authorized to stay in this country and had waived any right to

object to her removal, except in asylum-only proceedings, when she entered the United

States through the VWP. After that removal order was issued, USCIS denied Gjerjaj’s

motion for reconsideration reasoning that Gjerjaj remained in the United States beyond

the period of authorized stay for VWP participants and that she was subject to a final

order of removal.

       Gjerjaj argues that she is not bound by the terms of the VWP because she is not a

citizen of one of the select countries whose citizens may enter under that program. Even

if she is subject to its terms, she argues that she did not knowingly waive her rights to

contest her removal. Finally, she argues that by filing an adjustment of status application,

she is entitled to a hearing and decision on that application regardless of her removability.

For that reason, she argues, the issuance of ICE’s removal order that resulted in USCIS’s

denial of her application for adjustment of status violated her constitutional rights to due

process and equal protection. On these grounds, she requests a hearing prior to her

removal and a full and fair opportunity for her adjustment of status application to be

reviewed.

                                         Discussion

       We have jurisdiction to review final orders of removal. 8 U.S.C. § 1252(a)(1). We

review de novo questions of law, including constitutional claims. See Bah v. Mukasey,

529 F.3d 99, 110 (2d Cir. 2008).



                                             -6-
       The VWP “permits qualified visitors from certain countries to enter the United

States without applying for a standard visa.” Galluzzo v. Holder, 633 F.3d 111, 113 (2d

Cir. 2011). Qualified visitors from certain countries (Albania not among them) may stay

in the United States for a period up to 90 days, but “in exchange for the benefit of entering

under the expedited process of the [VWP], the signing alien agrees to waive any right to

challenge removability except by way of an asylum claim.” Shabaj v. Holder, 602 F.3d

103, 104 (2d Cir. 2010).

       Notwithstanding Gjerjaj’s arguments, she is bound by the terms of the VWP. See

Shabaj, 602 F.3d at 105-06. In Shabaj, we held that a person who enters the country

based on a false passport under the auspices of the VWP is nevertheless bound by its

terms. Id. In keeping with the holding of Shabaj, therefore, Gjerjaj is precluded from

denying that the requirements of the VWP program do not apply to her because she is not

from a country whose citizens may be lawful VWP participants.

       Gjerjaj also asserts that even if she is technically in the VWP, she did not

knowingly and voluntarily waive her rights to contest her removal (as the VWP requires

participants to do). The record does not support this argument. The government has

produced a copy of a Form I-94W, signed by Gjerjaj, in which she explicitly waived her

right to challenge her removal. See Galluzzo, 633 F.3d at 115 (concluding that the

government is required to prove that an alien participated in the VWP). Assuming,

arguendo, that a VWP waiver is valid only if it has been entered into knowingly and

voluntarily, we conclude further that Gjerjaj was presumed to know the law and her rights

                                             -7-
when she read and signed the waiver. Cf. 8 C.F.R. § 208.3(c)(2); Zhi Wei Pang v. Bureau

of Citizenship & Immigration Servs., 448 F.3d 102,107-08 (2d Cir. 2006) (discussing

presumption in asylum proceedings that an applicant’s signature on a Form I-589 indicates

his or her understanding of its contents). Gjerjaj has not presented any evidence to

establish that her signature on the I-94W was involuntary or that she did not understand

the language in which the document was written. Cf. Bayo v. Napolitano, 593 F.3d 495,

505-06 (7th Cir. 2010) (en banc) (declining to address whether an alien may not be bound

by the VWP program if he does not understand the language in which the waiver was

written). The VWP offers aliens “the benefit of expedited entry” as a quid pro quo in

exchange for a waiver of rights; having received that benefit, Gjerjaj is bound to accept the

VWP’s strictures. See Shabaj, 602 F.3d at 105.

       Finally Gjerjaj argues that the asylum-only removal proceedings are inadequate

because she had an adjustment of status application pending prior to the time ICE issued

the removal order. Generally speaking, Gjerjaj argues that the denial of her adjustment of

status application based solely on the existence of the removal order and on her status as a

an overstayed VWP participant amounts to a due process violation. We disagree.

       Congress explicitly permits a VWP participant to apply for adjustment of status

pursuant to an immediate relative petition. See 8 U.S.C. § 1255(c)(4). Congress also

provided explicitly that VWP participants could contest their removability on only asylum

grounds. See 8 U.S.C. § 1187(b)(2). Accordingly, Gjerjaj waived her right to invoke as a

defense to her removal any of the procedural protections that would be associated with an

                                             -8-
adjustment of status application. To conclude otherwise would be contrary to the plain

language of the statute, and if we did so, we would frustrate Congress’s goal of allowing

VWP participants expeditious entry into the country but streamlining their removal. We

join our sister circuits in holding that a VWP participant may not contest removal on the

basis of an adjustment of status application filed after the that participant overstays the 90-

day period of authorized stay. See, e.g., Bayo, 593 F.3d at 506-507; McCarthy v.

Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097

(9th Cir. 2008); Ferry v. Gonzales, 457 F.3d 1117, 1127-29 (10th Cir. 2006).3 Having

provided Gjerjaj an asylum-only proceeding, the agency properly ordered her removal

because she “received all the . . . process to which [s]he was entitled.” Shabaj, 602 F.3d at

106.

       Gjerjaj also advances an equal protection argument, asserting that she was denied

equal protection because, although USCIS has historically adjudicated adjustment of status

applications filed by an alien after her initial 90 days under the VWP expire, in this case,

USCIS initially denied her application on these very grounds. Gjerjaj’s real complaint is

that she was ordered removed before her adjustment of status procedures were completed,

and, as we have already held, supra, she has waived her right to contest her removability

on that basis. See id. at 105-06. In sum, Gjerjaj, as a VWP participant, waived her right to


          3
           We do specifically decline to address and leave for another day the question
   whether an adjustment of status application filed before the 90-day window closes
   may serve as a defense to removal. See Freeman v. Gonzales, 444 F.3d 1031, 1035-
   37 (9th Cir. 2006).

                                              -9-
any procedural protections associated with her removal (except the opportunity to apply

for asylum) and, thus, ICE’s removal order was properly issued after Gjerjaj participated

in the asylum-only proceedings to which she was entitled.

      We have considered Petitioner’s remaining arguments, and we find them to be

without merit. For the foregoing reasons, the petition for review is DENIED. The

pending motion for a stay of removal in this petition is DENIED as moot.




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