UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-2497

GEORGE PLUMAJ; FILE PLUMAJ,

Petitioners,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A-78-148-474; A78-148-470)

Submitted: July 29, 2005 Decided: August 19, 2005

Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Gary J. Yerman, New York, New York, for Petitioners. Peter D.

Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright,

Assistant Director, Carol Federighi, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

The Program was later made permanent by Congress, and was

renamed the Visa Waiver Program.

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PER CURIAM:

George and File Plumaj petition for review of the Board

of Immigration Appeals’ denial of their motion to reconsider the

Board’s prior order that denied their motion to remand for

adjustment of status. The petition is denied.

The Plumajs, a married couple who are natives and

citizens of Albania, attempted to enter the United States on

December 27, 1998, under the Visa Waiver Pilot Program (“VWPP”),1

which allows visitors from certain countries to enter the United

States without a visa for a stay of ninety days or less. See 8

U.S.C.A. § 1187 (West 1999 & Supp. 2004). In exchange for the visa

waiver, the alien must waive his right “to contest, other than on

the basis of an application for asylum, any action for removal.”

§ 1187(b)(2). 

The Plumajs were apprehended at Dulles airport, posing as

assistants to a soccer team from Slovenia, a party to the VWPP.

During their questioning by agents of the former Immigration and

Naturalization Services (“INS”), the Plumajs admitted that they

were not citizens of Slovenia, that they were in possession of

fraudulently obtained passports from Slovenia, that they were

citizens of Albania (a country that does not participate in the

VWPP), and that they feared reprisals for their participation in
2

We note that the merits of the orders issued by the Board --

the October 31, 2003 order denying the Plumajs’ motions to reopen

and to remand or of its earlier February 13, 2003 decision

dismissing their appeal from the immigration court -- are not the

subject of the present petition because the Plumajs did not timely

file a petition for review of any of those decisions. The Plumajs

had thirty days from the date of each of these orders to timely

file a petition for review. See 8 U.S.C. § 1252(b)(1) (2000).

This time period is “jurisdictional in nature and must be construed

with strict fidelity to [its] terms.” Stone v. INS, 514 U.S. 386,

405 (1995). The filing of a motion to reopen or reconsider with

the Board does not toll the thirty-day period for seeking review of

the underlying order. Id. at 394. Accordingly, this court’s

review is limited to the propriety of the Board’s denial of the

Plumajs’ motion to reconsider.

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anti-communist activities if they were returned to Albania.

Although the Plumajs were advised that they would not be permitted

to enter the United States under the VWPP, as they were ineligible,

and that they would be deported, their case was referred to an

immigration judge for “asylum-only proceedings” pursuant to 8

C.F.R. § 208.2(c).

When their application for asylum was denied, the Plumajs

filed a motion to remand for adjustment of status, contending that

Mr. Plumaj’s brother, a United States citizen, filed a visa

petition on his behalf. After that motion was denied, the Plumajs

filed a motion to reconsider. The Board denied that motion,

stating that the Plumajs were not eligible for adjustment of status

because they sought to enter the United States under the VWPP. The

Board noted that, under § 217(b) of the INA, a VWPP entrant may

apply only for asylum relief as a means of contesting deportation.

The Plumajs then filed the instant petition.2 
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The Plumajs contend that due process requires that the

waiver of their right to all claims for relief other than asylum

must have been made “knowingly and voluntarily” to be enforceable

against them, Nose v. Attorney General, 993 F.2d 75, 79 (5th Cir.

1993), and argue that they did not sign their waivers “knowingly

and voluntarily.” According to the Plumajs, at the time of their

entry they were unable to speak English, and although they signed

the forms requesting entry under the VWPP, a third party actually

completed the paperwork for them. Thus, the Plumajs maintain that

they did not understand the forms they were signing.

“In order to prevail on a due process challenge to a

[removal hearing], an alien must demonstrate that he was prejudiced

by any such violation.” See Rusu v. INS, 296 F.3d 316, 320 (4th

Cir. 2002) (stating that removal and asylum proceedings are

“subject to the requirements of procedural due process”). Under

current agency regulations, arriving aliens seeking admission

without valid entry documents (such as a visa or visa waiver), are

precluded from applying for adjustment of status under INA § 245,

8 U.S.C.A. § 1255 (West 1999 & Supp. 2005). See 8 C.F.R.

§ 245.1(c)(8) (2005). Moreover, the Plumajs have not demonstrated

that a visa was “immediately available to them,” an element

required to establish an alien’s eligibility for adjustment of

status. See 8 U.S.C.A. § 1255(a) (West 1999 & Supp. 2005); 8

C.F.R. § 245.1 (g)(1) (2005). Because the Plumajs cannot
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demonstrate that they were entitled to an adjustment of status,

they cannot show they were prejudiced by the alleged error. See

Rusu, 296 F.3d at 324. We therefore find that the Board did not

abuse its discretion when it denied the Plumajs’ motion to

reconsider. See 8 C.F.R. § 1003.2(a) (2004); INS v. Doherty, 502

U.S. 314, 323-24 (1992); Yanez-Popp v. INS, 998 F.2d 231, 234 (4th

Cir. 1993).

Accordingly, we deny the petition for review. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

PETITION DENIED