                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________                       FILED
                                                                   U.S. COURT OF APPEALS
                                    No. 07-13660                     ELEVENTH CIRCUIT
                                                                        MARCH 2, 2009
                              ________________________
                                                                      THOMAS K. KAHN
                                                                           CLERK
                                Agency No. A71-794-766

PEDRAM MOKARRAM,


                                                                                  Petitioner,

                                           versus

U.S. ATTORNEY GENERAL,

                                                                                Respondent.

                              ________________________

                        Petition for Review of a Decision of the
                             Board of Immigration Appeals
                             _________________________

                                    (March 2, 2009)


Before TJOFLAT and CARNES , Circuit Judges, and HOOD,* District Judge.

PER CURIAM:


       *
        Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
      Petitioner seeks review of Respondent Department of Homeland Security’s

(“DHS”) July 11, 2007, Order of Deportation pursuant to the Visa Waiver Program

(“VWP”) provision in § 217 of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1187. Petitioner contends that he was wrongfully removed without the

opportunity for a hearing on the grounds that, when he entered the United States,

he did not waive his rights to a hearing under 8 U.S.C. § 1187, INA § 217.

Respondent challenges the district court’s transfer of the petition to this Court

under 28 U.S.C. § 1631, arguing that it was not in the “interest of justice.”

Respondent further argues that Petitioner waived his right to a hearing when he

entered the country under the VWP and that, in any event, his right to due process

was not violated when he was removed without a hearing.

      For the reasons stated below, the Court holds that Mokarram’s petition was

properly transferred to this Court from the district court in which it was originally

filed and that, in the absence of a waiver of his right to due process, Mokarram was

entitled a hearing prior to removal. Accordingly, we affirm the decision of the

district court, vacate the Order of Deportation, and remand this matter to the DHS

for further proceedings.

I.    BACKGROUND

      Pedram Mokarram entered the United States of America in Charlotte, North

Carolina, on December 7, 1988, at the age of 12. He was accompanied by a friend
                                           2
of a relative who was neither Petitioner’s guardian nor relative. The record related

to Mokarram’s entry is scant, but it includes a page from a Form I-94 Departure

Record bearing the printed name “Pedrom Mokaram,” a stamp, and additional

handwriting, presumably that of an immigration officer, which indicate that he was

admitted under Class “WT” until March 5, 1989.1 The record also contains a copy

of Mokarram’s British passport, stamped to indicate that Mokarram was admitted

to the United States in Charlotte, North Carolina, on December 7, 1988, as Class

“WT,” as well as a computer print-out of unknown provenance which again

indicates that Mokarram was granted entry to the United States under admission

class “WT.”2

         Petitioner remained in the United States unmolested until, on June 30, 2007,

local law enforcement stopped him in Charlotte, North Carolina, for state traffic

law violations. DHS placed a detainer on Petitioner and, after disposition of the

state law charges, picked him up at the Etowah County Jail in Gadsden, Alabama.

         An Order of Deportation was entered on July 11, 2007, stating in relevant

part that it had been determined that Mokarram had violated the conditions of his



         1
             “WT” means “waiver/tourist.” See Itaeva v. I.N.S., 314 F.3d 1238, 1239 (10th Cir.
2003).
         2
         Notably, there is no record of Petitioner’s waiver of rights upon entry. Indeed, at oral
argument, the government conceded that it could not produce a waiver form for Mokarram
because one could not be located.
                                                 3
December 7, 1988, admission to the United States because “[a]fter admission as a

nonimmigrant under Section 217 of said act, [Mokarram] remained in the United

States longer than authorized” and had “waived [his] right to contest any action for

deportation, except to apply for asylum, having been admitted under Section 217

of the [INA].”

       On July 11, 2007, DHS also issued to Petitioner a Notice of Intent to Deport

for Violation of the Terms of Your Admission Under Section 217 of the INA. That

document provides, in relevant part, as follows:

              The Immigration and Naturalization Service has
              determined that you entered the United States pursuant to
              Section 217 of the Immigration and Nationality Act.
              Accordingly, you executed a Form I-791 Visa Waiver
              Pilot Program Information Form, that explained to you
              the conditions of admission under the Visa Waiver Pilot
              Program.3 When you signed Form I-791, you also
              waived your right to contest deportability before an
              Immigration Judge and the Board of Immigration
              Appeals, and to any judicial review of any and all of the
              above decisions.

Finally, on July 11, 2007, DHS issued a Warrant under Section 217, commanding

that Mokarram be taken into custody and deported.

       Mokarram filed a petition for writ of habeas corpus before the United States



       3
        “The VWP was first enacted in 1986 and was entitled the Visa Waiver Pilot Program
(“VWPP”). The program was so successful that in 2000 Congress made it permanent and
renamed it the Visa Waiver Program.” Itaeva, 314 F.3d at 1239, n.1. We will refer to the
program as the VWP.
                                              4
District Court for the Northern District of Georgia on July 24, 2007, challenging

DHS’ efforts to remove him, as well as his detention. The Respondent challenged

the jurisdiction of the district court to review the final order of removal because

petition for review with the appropriate court of appeals is the “sole and exclusive

means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). As a

result, on August 3, 2007, the district court transferred the matter to this Court

pursuant to 28 U.S.C. § 1631 as a Petition for Review of the final order of removal

under § 217 of the INA.4 Petitioner was ultimately removed from the United States

without a hearing on August 16, 2007.5

II.    STANDARDS OF REVIEW

       We review the district court’s decision to transfer Mokarram’s petition to

this Court in the interest of justice under 28 U.S.C. § 1631 for an abuse of

discretion. See Howell v. Tanner, 650 F.2d 610, 616 (5th Cir. Unit B July 1981)

(discussing transfer for convenience of parties and witnesses and in interest of

justice under 28 U.S.C. § 1404 for an abuse of discretion because it is “such an

inherently subjective decision”). In addition, we review subject matter jurisdiction

       4
         On September 12, 2007, Mokarram filed a separate petition for review of his August
16, 2007, deportation “out of an abundance of caution.” That Petition was docketed at No. 07-
14247 and dismissed as untimely by another panel of this Court on December 18, 2007, as it was
filed more than 30 days after the July 11, 2007, Order of Deportation.
       5
          On October 22, 2007, this Court entered an order dismissing Petitioner’s challenge to
his detention as moot because he had already been deported. Accordingly, that issue is no longer
before the Court.
                                                5
and constitutional challenges de novo. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338,

1341 (11th Cir. 2003); Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002),

superseded in part by statute, Real ID Act, Pub. L. No. 109-13, 119 Stat. 231, 8

U.S.C. § 1252(a)(2)(D), as recognized in Singh v. U.S. Att’y Gen., 11th Cir. 2008,

___ F.3d ____ (No. 08-10780, Dec. 31, 2008).

III.   DISCUSSION

       A.    Transfer of Petition to This Court Was Not an Abuse of
             Discretion

       An alien admitted under the VWP and determined by an immigration officer

to be deportable shall be removed. 8 C.F.R. § 217.4(b)(1). Such a removal is

equivalent in all respects and has the same consequences as removal [resulting

from proceedings before an immigration judge].” 8 C.F.R. § 217.4(b)(2). A

petition for review with the appropriate court of appeals is the “sole and exclusive

means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5).

       Under 28 U.S.C. § 1631, whenever a civil action is filed in a court that lacks

jurisdiction to review it, the court in which the action or appeal was filed:

             . . . shall, if it is in the interest of justice, transfer such
             action or appeal to any other such court in which the
             action or appeal could have been brought at the time it
             was filed or noticed, and the action or appeal shall
             proceed as if it had been filed in or noticed for the court
             to which it is transferred on the date upon which it was
             actually filed in or noticed for the court from which it is
             transferred.
                                             6
We have held that a transfer is “in the interest of justice” where the party filed a

petition “in the wrong court for very understandable reasons” and filing the

petition in the appropriate court would now likely be time-barred. ITT Base Servs.

v. Hickson, 155 F.3d 1272, 1276 (11th Cir. 1998) (citation and internal quotation

marks omitted).

       It is undisputed that, at the time Mokarram filed his petition in the Northern

District of Georgia, jurisdiction over the matter lay with this Court and not with the

district court. As for whether the transfer was “in the interest of justice,” it is also

undisputed that filing the petition in this Court would now be time-barred.

Furthermore, there is no evidence showing that Mokarram was aware that a final

order of removal – necessitating a petition for review with this Court under 8

U.S.C. § 1252(a)(5) – had been entered against him before filing his petition for

habeas relief with the district court. Thus, he filed his petition with the district

court for “very understandable reasons.” Hickson, 155 F.3d at 1276. We conclude

from the record that the district court did not abuse its discretion in transferring

Mokarram’s petition to this Court under 28 U.S.C. § 1631. Accordingly, we affirm

the district court’s order of transfer.

       B.     Due Process Required in Absence of Waiver

       Under the VWP, certain aliens are permitted to enter the United States as a

tourist for 90 days or less if they, among other things, waive any right “to contest,
                                            7
other than on the basis of an application for asylum, any action for removal of the

alien.” 8 U.S.C. §§ 1187(a)(1), (b)(2). Although this statute limits judicial review,

this Court retains jurisdiction to determine whether the statutory conditions

limiting judicial review exist, in this case whether Mokarram waived any right he

had to contest his removal. Vuksanovic v. U.S. Att’y Gen., 439 F.3d 1308, 1310

(11th Cir. 2006).

      The Supreme Court has stated that “an alien seeking initial admission to the

United States requests a privilege and has no constitutional rights regarding his

application.” Landon v. Plasencia, 459 U.S. 21, 32, 103 S. Ct. 321, 329, 74 L. Ed.

2d 21, 32 (1982). However, “once an alien gains admission to our country and

begins to develop the ties that go with permanent residence his constitutional status

changes accordingly.” Id. Indeed, Mokarram does not allege that his

constitutional rights were violated at the time of his admission into the United

States, but rather at the time he was deported without a hearing. Because

Mokarram, who has lived in the United States for nearly twenty years, is:

             “ . . . an alien who has entered the country, and has
             become subject in all respects to its jurisdiction, and a
             part of its population[,]” [he] is entitled to due process
             under the fifth amendment and cannot be deported
             “without giving him all opportunity to be heard upon the
             questions involving his right to be and remain in the
             United States.”



                                          8
Jean v. Nelson, 727 F.2d 957, 967 (11th Cir. 1984) (quoting Kaoru Yamataya v.

Fisher (Japanese Immigrant Case), 189 U.S. 86, 101, 23 S. Ct. 611, 615, 47 L. Ed.

721, 726 (1903)).

      An alien’s waiver of a right to a removal hearing under the VWP operates as

a prospective waiver of his constitutional right to a removal hearing. Our sister

circuits have held that because the alien is waiving a constitutional right under the

VWP, that waiver must be voluntary. See Nose v. U.S. Att’y Gen., 993 F2d 75, 78-

79 (5th Cir. 1993) (immigrant admitted under VWP has due process right to a

hearing before Immigration Judge before deportation but right can be waived if

done knowingly and voluntarily); Bayo v. Chertoff, 535 F.3d 749(7th Cir. 2008)

(knowing and voluntary standard applies to waiver under VWP). On the record

before this Court, there is no evidence that Mokarram signed a waiver at all.

      In the absence of that evidence, Respondent asks this Court to indulge in the

presumption that Mokarram waived any right to contest his removal based solely

on his admission to the United States as an alien in Class W/T, i.e., under the

VWP. Respondent has not identified any established legal presumption which

applies, and the Court declines to create the one proposed by Respondent. Rather,

courts generally “‘indulge every reasonable presumption against waiver’ of

fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.

1019, 1023, 82 L. Ed. 1461, 1466 (1938) (Sixth Amendment right to counsel). The
                                           9
responsibility of demonstrating the waiver of such the right to due process rests on

Respondent for this Court will not presume a waiver of such a fundamental

constitutional where the record is silent. Carnley v. Cochran, 369 U.S. 506, 516,

82 S. Ct. 884, 890, 8 L. Ed. 2d 70, 77 (1962) (“(p)resuming waiver [of Sixth

Amendment right to counsel] from a silent record is impermissible”); see also

Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274, 283

(1969); Miranda v. Arizona, 384 U.S. 436, 475-76, 82 S. Ct. 1602, 1628, 16 L. Ed.

2d 694, 724 (1966); Barker v. Wingo, 407 U.S. 514, 525-26, 92 S. Ct. 2182, 2189,

33 L. Ed. 2d 101, 114 (1972); Fox v. Kelso, 911 F.2d 563, 569-70 (11th Cir. 1990);

Pardue v. Burton, 26 F.3d 1093, 1097 (“state’s showing must be based on

affirmative evidence; to ‘presum[e] waiver from a silent record is

impermissible’”).

      It would be unreasonable for this Court to conclude that waiver occurred in

the absence of anything more than the entry-ergo-waiver logic offered by

Respondent. Accordingly, this Court shall presume that no waiver of Mokarram’s

right to due process was made. The Court further concludes that, once Mokarram

was admitted to the United States and became subject in all respects to its

jurisdiction, he was entitled to due process under the Fifth Amendment and, in the

absence of waiver, should not have been deported without the opportunity to be

heard upon the questions involving his right to be and remain in the United States.
                                         10
      In fact, Respondent, who bears the burden of demonstrating waiver of

Petitioner’s constitutional right to due process, has offered nothing of any

substance to support its waiver argument. At best, Respondent points to a

photocopy of a Form I-94, which bears the hand-printed name of Petitioner, and

stamps on documents associated with Petitioner indicating that he was inspected

and admitted to the country in class W/T, i.e., under the auspices of the VWP.

      Respondent theorizes that some additional portion of the Form I-94 effective

on December 7, 1988, was completed prior to Mokarram’s admission into the

United States but was lost over the twenty years since Petitioner’s entry into the

country. Respondent asks this Court to believe that this missing portion of the

Form I-94 would have advised Mokarram (or his parent or guardian) of the fact

that he was waiving his right to a hearing upon removal if he entered the United

States under the VWP. Respondent further theorizes that the remainder of the

Form I-94 was submitted upon entry by Mokarram and would have borne his

signature (or that of his parent or guardian), indicating his acquiescence in the

waiving of his rights.

      Respondent has not, however, provided a copy of the remainder of Form I-

94 which may or may not have been completed by Mokarram. Respondent has not

even placed in the record of this matter an example of a Form I-94 in use by

immigration officials when Mokarram entered the United States in 1988. In other
                                          11
words, not only is there no direct evidence of Mokarram’s waiver of his right to

due process, there is not even competent evidence “as to [the] standard practice or

customary procedure [which] can be used to demonstrate compliance with

constitutional standards.” Banda v. Estelle, 519 F.2d 1057, 1058 (5th Cir. 1975)

(citing Webster v. Estelle, 505 F.2d 926, 930 (5th Cir. 1974)).

      However, a finding that Mokarram’s due process rights were violated does

not finally resolve Mokkaram’s claims because, “[t]o prevail on a procedural due

process challenge, [he] must show that he was substantially prejudiced by the

violation.” Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007).      In

order to determine whether Mokarram was substantially prejudiced by this

violation, we would need to address the merits of Mokarram’s underlying claim

that he was not subject to removal in the first instance. The Supreme Court has

indicated that the circuit courts should not conduct de novo inquiries into matters

Congress has exclusively entrusted to an agency, such as the Department of

Homeland Security. See I.N.S. v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355,

154 L. Ed. 2d 272, 277 (2002). “Rather, the proper course, except in rare

circumstances, is to remand to the agency for additional investigation or

explanation.” Id. (citation and internal quotation marks omitted).

IV.   CONCLUSION

      Accordingly, for the above-stated reasons, we AFFIRM the district court’s
                                          12
order transferring Mokarram’s habeas petition to this Court, but we VACATE the

Order of Deportation and REMAND this matter to the Department of Homeland

Security for further proceedings consistent with this opinion.




                                         13
