                                                                     [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                      FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                         -------------------------------------------U.S. COURT OF APPEALS
                                      No. 06-11664                    ELEVENTH CIRCUIT
                                                                      NOVEMBER 22, 2006
                                Non-Argument Calendar
                        -------------------------------------------- THOMAS K. KAHN
                                                                            CLERK

                               BIA No. A79-508-876

STUART CREGGY,

                                                         Petitioner,

                                          versus

U.S. ATTORNEY GENERAL,

                                                         Respondent.

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

                                  (November 22, 2006)

Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Stuart Creggy (“Creggy”) petitions for review of an order entered by the

Department of Homeland Security (“DHS”) requiring his removal from the United

States for overstaying the time permitted by the Visa Waiver Program (“VWP”),
section 217 of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1187,

1227.1 No reversible error has been shown; we deny the petition.

         Creggy, a native and citizen of the United Kingdom, entered the United

States under the VWP on 10 March 2001, signed a Form I-94 waiver as required

by the program, and was authorized to remain until 9 June 2001. Creggy failed to

depart the U.S. by that date. On 28 June 2001, Creggy’s employer filed a Form I-

129 (the “Initial Petition”) on Creggy’s behalf, requesting “L-1A” classification

for Creggy.2 The Initial Petition, signed by Creggy and dated December 2000, did

not indicate Creggy was currently in the U.S.; in fact, it suggested just the

opposite, stating that Creggy’s date of arrival, I-94 number, and current

nonimmigrant status were “N/A.” Notably, the Initial Petition did not request a

change in Creggy’s nonimmigrant status or classification.

         DHS approved the Initial Petition, which was valid until 25 July 2002. The

Notice of Action (“Notice”) indicated that Creggy should “contact the consulate


  1
   The order is styled an “Order of Deportation,” but deportation is now referred to as “removal.”
See INA § 240, 8 U.S.C. § 1229(a).
  2
      The following individuals are eligible for such classification under under INA § 101(a)(15)(L):
         [A]n alien who, within 3 years preceding the time of his application for admission
         into the United States, has been employed continuously for one year by a firm or
         corporation or other legal entity or an affiliate or subsidiary thereof and who seeks
         to enter the United States temporarily in order to continue to render his services to
         the same employer or a subsidiary or affiliate thereof in a capacity that is managerial,
         executive, or involves specialized knowledge. . . .

                                                   2
with any questions about visa issuance” and stated, “THIS FORM IS NOT A

VISA AND MAY NOT BE USED IN PLACE OF A VISA.” The Notice further

provided that if Creggy was “already in the U.S., the petitioner can file a new

Form I-129 to seek to change or extend [his] status based on this petition.” That

Creggy never obtained a visa from the U.S. Consulate in London and never filed a

new I-129 seeking a change of status based on his presence in the United States is

undisputed.

       On 21 February 2006, DHS ordered Creggy removed for failing to comply

with the conditions of his VWP admission by remaining longer than the time

permitted.3 Creggy now petitions this Court for review of that order, raising two

arguments. First, Creggy contends that the removal order was improper because

he was not subject to the VWP once DHS approved the Initial Petition, which

legally changed his status to L-1A. Second, Creggy argues that DHS’s failure to

provide him with a hearing before an Immigration Judge violated his statutory and


  3
    The removal order was prompted by DHS’s denial on 17 February 2006 of Creggy’s application
to extend his L-1A status (“Second Petition”), filed in July 2002. In the Second Petition, Creggy’s
status was listed as L-1A, but his date of arrival and I-94 numbers were again omitted. On the same
date, DHS also denied the “Application to Register Permanent Residence or Adjust Status”
(“Adjustment Application”) filed by Creggy in April 2005. DHS found that subsections (2), (4) and
(8) of INA § 245(c) barred Creggy’s adjustment of status because he entered the U.S. under the VWP
and failed to maintain a continuously lawful status by overstaying the time permitted by the VWP.
Creggy does not challenge DHS’s denial of his Adjustment Application in this appeal. In denying
Creggy’s Adjustment Application, DHS noted that the Initial Petition was “erroneously approved”
because his VWP status “was concealed.”

                                                3
constitutional rights. In response, the government moved to dismiss Creggy’s

petition, arguing that we lack jurisdiction to consider the petition.

       We review our subject-matter jurisdiction de novo. Brooks v. Ashcroft,

283 F.3d 1268, 1272 (11th Cir. 2002). In general, our authority to review a final

order of removal4 is derived from INA § 242, 8 U.S.C. §1252. The government

contends that our review is limited by INA § 217(b)(2), 8 U.S.C. § 1187(b)(2),

which provides that an alien admitted under the VWP has waived the right “to

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

removal of the alien.” The government argues that this language precludes a court

from hearing any challenge to removal pursuant to the VWP other than one based

on an asylum claim, citing decisions from several of our sister circuits.

Wigglesworth v. INS, 319 F.3d 951, 956 n.4 (7th Cir. 2003); Nose v. Att’y Gen.,

993 F.2d 75, 80 (5th Cir. 1993). We need not decide this issue here, because we

have jurisdiction to decide the issues presented.5




  4
    The government argues that we lack jurisdiction to review DHS’s denial of the Second Petition
and Adjustment Application, as they are not “final orders of removal.” This question is not before
the Court, as Creggy has not raised any arguments regarding those DHS actions on appeal. The
government does not argue that the removal order was not a “final order” under the statute. See INA
§ 240, 8 U.S.C. § 1229a; 8 C.F.R. § 217(b).
   5
     For the reasons set forth herein, we therefore DENY the government’s motion to dismiss the
petition for review for lack of jurisdiction.

                                                4
      Even where the INA precludes judicial review of the merits of an alien’s

claim for relief from removal, we retain jurisdiction to determine whether the

statutory conditions for limiting judicial review exists. Vuksanovic v. U.S. Att’y

Gen., 439 F.3d 1308, 1310 (11th Cir. 2006). Thus, because we must first

determine whether Creggy was subject to the provisions of the VWP at the time of

his removal, we must necessarily decide whether approval of the Initial Petition

removed him from the program. See Handa v. Clark, 401 F.3d 1129, 1133 (9th

Cir. 2005). In so doing, we defer to DHS’s interpretation of the INA if it is

reasonable. See Brooks, 283 F.3d at 1272. We also retain jurisdiction to hear

Creggy’s constitutional challenge to the statute itself. See Richardson v. Reno,

180 F.3d 1311, 1316 n.5 (11th Cir. 1999), overruled on other grounds by INS v.

St. Cyr, 533 U.S. 289, 312-13, 121 S.Ct. 2271, 2286, 150 L.Ed.2d 347

(2001)(constitutional challenge to INA § 242(a)(2)(C)); Wigglesworth, 319 F.3d

at 957 (due process challenge to VWP provision).

      Under the VWP, aliens from certain countries may enter the U.S. for

business or pleasure without visas as nonimmigrant visitors for a period not to

exceed 90 days, as long as they waive their right to contest removal other than on

asylum grounds. INA § 217(a), 8 U.S.C. § 1187(a). That Creggy entered the U.S.

in March 2001 under the VWP, signed such a waiver, and overstayed the 90-day

                                         5
period is undisputed. He contends, however, that the approval of the Initial

Petition adjusted his status to an L-1A classification in July 2001 and that he was

then in the country legally. We disagree.

       DHS’s approval of the Initial Petition merely authorized Creggy to apply to

the U.S. Consulate in London for a visa; it was not a visa itself, and could not be

used by Creggy to gain entry to the U.S.. See 8 C.F.R. § 214.2(l)(13)(i); 8 C.F.R.

§ 212.1. The Notice unequivocally indicated as much. To receive a visa, which

would then authorize Creggy to enter the U.S., he was required to depart the U.S.,

to return to London, and to undergo an interview with American officials in

London. See 8 U.S.C. § 1202(h)(1). Had Creggy done so, it is highly likely that

consulate officials would have denied him a visa upon learning that the Initial

Petition had been approved while he was in the U.S. pursuant to the VWP. See

INA § 248(a)(4), 8 U.S.C. § 1258(a)(4) (precluding a change in nonimmigrant

classification for aliens admitted under the VWP). Regardless, Creggy failed to

enter the U.S. under a visa issued pursuant to the I-129 authorization, and his

presence in the country was thus illegal once the 90-day VWP period expired.6

   6
     The Notice specifically indicated that if Creggy was in the country at the time of the approval,
he was required to file a new I-129 in order to adjust his status. It is uncontroverted that had DHS
been aware that Creggy had been admitted to the U.S. under the VWP, any petition to change his
status would have been denied. Creggy contends that he should not be prejudiced by DHS’s
erroneous approval and failure to investigate the facts fully underlying his petition. His argument
ignores the fact that he had a responsibility to provide full and truthful disclosure to DHS regarding

                                                  6
        Because the approval of the Initial Petition failed to change his status,

Creggy remained subject to the provisions of the VWP. If an alien admitted under

the VWP violates his status and does not apply for asylum, the removal will be

“effected without referral of the alien to an immigration judge for further inquiry.”

8 C.F.R. § 217.4(b)(1) (elaborating on INA § 217(b), 8 U.S.C. §1187(b)). Thus,

Creggy had no statutory right to a hearing. See Handa v. Clark, 401 F.3d 1129,

1133-35 (9th Cir. 2005). He also waived any due process right to a hearing by

signing the Form I-94 upon his entry into the U.S. See Boddie v. Connecticut, 401

U.S. 371, 378-79, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (due process right to

hearing may be waived). Creggy does not contend that the waiver was unknowing

or involuntary, nor does the record suggest such a conclusion, given Creggy’s

level of education and sophistication as an executive for a multinational company.

See Wigglesworth v. INS, 319 F.3d 951, 959 (7th Cir. 2003); Nose v. Att’y Gen.,

993 F.3d 75, 78-80 (5th Cir. 1993). Thus, the order requiring removal without a

hearing was proper because Creggy waived his right to a hearing upon his entry to

the U.S. pursuant to the VWP.




his application for nonimmigrant status. Cf. 8 C.F.R. § 214.1(f) (willful failure to provide truthful
information, whether or not material, results in loss of nonimmigrant status and deportability).

                                                 7
      We conclude that the BIA properly ordered removal of Creggy without a

hearing because DHS’s approval of the Initial Petition failed to remove him from

the VWP, under which Creggy waived any statutory or constitutional right to a

hearing before an immigration judge. Creggy’s petition for relief is therefore

      DENIED.




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