                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0017n.06

                                           No. 18-3050


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
 YANCARLOS MENDEZ PEREZ,              )                                          Jan 14, 2019
                                      )                                      DEBORAH S. HUNT, Clerk
       Petitioner,                    )
                                      )
 v.                                   )                     ON PETITION FOR REVIEW
                                      )                     FROM THE UNITED STATES
 MATTHEW G. WHITAKER, Acting Attorney )                     DEPARTMENT OF
 General,                             )                     HOMELAND SECURITY
                                      )
       Respondent.                    )                                OPINION
                                      )


       BEFORE: GIBBONS, ROGERS, and STRANCH, Circuit Judges.

       PER CURIAM. The Visa Waiver Program (VWP) allows certain foreign nationals to

visit the United States without a visa for 90 days or less. To qualify for the program, visitors must

agree to waive any right to contest their removal from the country except on the basis of an asylum

application. After entering the United States under the VWP, Yancarlos Mendez Perez remained

in the country for almost three years. When Department of Homeland Security (DHS) officials

discovered that he had overstayed his 90-day travel allowance, they removed him from the United

States. He now seeks reversal of DHS’s removal order. Though we sympathize with Mendez

Perez’s difficult circumstances, we are bound by the VWP’s legal framework and our own

precedents. Because Mendez Perez waived his right to challenge his removal under the VWP, we

are constrained to DENY his petition.
No. 18-3050, Mendez Perez v. Whitaker


                                           BACKGROUND

    A. Factual and Procedural History

        Mendez Perez entered the United States under the VWP in January 2015 and remained in

the country after his 90-day travel allowance had expired. While in the United States, Mendez

Perez began dating Sandrita Mendoza, whom he later married. Mendoza has a young child who

is paralyzed from the waist down and requires extensive at-home medical care. Mendez Perez

helped take care of the child and gave him and Mendoza financial support. In November 2017,

Mendez Perez was pulled over and arrested for driving without a license. During his detention,

DHS discovered that he had entered the country under the VWP almost three years before. The

agency began removal proceedings shortly thereafter and issued a final removal order in December

2017.

        Mendez Perez asked DHS to stay his removal in January 2018. After DHS denied that

request, he asked this court for a stay of removal pending our resolution of this case. We denied a

stay in February 2018, and he was deported the following month. Mendez Perez now asks us to

reverse DHS’s removal order.1

    B. Legal Framework

        We begin with the VWP. Typically, a nonimmigrant visitor to the United States will be

denied entry if he “is not in possession of a valid nonimmigrant visa or border crossing

identification card at the time of application for admission . . . .” 8 U.S.C. § 1182(a)(7)(B)(i)(II).

But the VWP provides an exception to this rule. Under the program, eligible foreign nationals

may “apply for admission to the United States for 90 days or less as nonimmigrant visitors for


1
 In addition to contesting DHS’s removal order, Mendez Perez appears to challenge DHS’s denial of his
petition to stay removal. To the extent that Mendez Perez wishes to appeal that denial, we must reject his
challenge because “[w]e do not have jurisdiction over denials of petitions to stay removal.” Casillas v.
Holder, 656 F.3d 273, 274 (6th Cir. 2011).
                                                   -2-
No. 18-3050, Mendez Perez v. Whitaker


business or pleasure without first obtaining a nonimmigrant visa.” Lacey v. Gonzales, 499 F.3d

514, 516 (6th Cir. 2007) (citation and internal quotation marks omitted); see also 8 U.S.C.

§ 1187(a)(1). In exchange for waiving the visa requirement, the VWP requires visitors to waive

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

removal while in the country under the program. 8 U.S.C. § 1187(b)(2). “Ordinarily, due to the

reciprocal-waiver requirement, federal courts lack jurisdiction over non-asylum-based, due-

process challenges to the removal of a VWP” visitor. Lacey, 499 F.3d at 518. On appeal, therefore,

we retain jurisdiction to answer two questions: first, whether Mendez Perez entered the United

States under the VWP; and second, whether he asked for asylum.

                                            ANALYSIS

       Because we must confine the scope of our inquiry to the above two questions, our analysis

is brief. Mendez Perez does not dispute that he entered the country under the VWP, so he cannot

challenge the validity of the waiver of his right to appeal DHS’s removal order. And he likewise

admits that he has not filed an asylum application, so he does not qualify for the only exception to

that waiver. We sympathize with Mendez Perez’s desire to return to the United States to support

his family and care for his stepson, but under the statutes at issue here and our own precedents, we

lack the power to undo his waiver. Having found no exception to Mendez Perez’s waiver of his

right to challenge DHS’s removal order, we must DENY his petition.




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