FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANUJ HANDA, 

Petitioner-Appellant,

v.

A. NEIL CLARK,* Field Office No. 04-35293

Director, Seattle Field Office, U.S. D.C. No.

IMMIGRATION AND CUSTOMS  CV-03-02350-TSZ

ENFORCEMENT; TOM RIDGE,

OPINION Secretary of Homeland Security;

and CONDOLEEZZA RICE,**

Secretary of State,

Respondents-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Thomas S. Zilly, District Judge, Presiding

Argued and Submitted

March 8, 2005—Seattle, Washington

Filed March 25, 2005

Before: Ferdinand F. Fernandez, A. Wallace Tashima, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Fernandez

*The current Field Office Director, A. Neil Clark, is substituted for his

predecessor Aaron G. Wilson, the Former Field Office Director. Fed. R.

App. P. 43(c)(2). 

**Condoleezza Rice is substituted for her predecessor, Colin L. Powell,

as Secretary of State. Fed. R. App. P. 43(c)(2). 

3689
COUNSEL

Robert Houston Pauw, Gibbs Houston Pauw, Seattle, Washington, for the petitioner-appellant. 

Christopher Lee Pickrell, Assistant United States Attorney,

Seattle, Washington, for the respondents-appellees. 

OPINION

FERNANDEZ, Circuit Judge: 

Anuj Blake Handa appeals the district court’s denial of his

petition for habeas corpus relief filed against the Director of

the Seattle Field Office of the Bureau of Immigration and

Customs Enforcement (BICE).1 He asserts that he was wrongfully removed to the United Kingdom after he overstayed the

ninety-day limit on his visa, which was issued pursuant to the

Visa Waiver Program, 8 U.S.C. § 1187 (VWP). We affirm. 

BACKGROUND

Handa is a citizen of the United Kingdom, who entered the

1Handa v. Crawford, 312 F. Supp. 2d 1367 (W.D. Wash. 2004) (Handa

I). 

HANDA v. CLARK 3691
United States under the VWP on March 2, 2003. Under the

terms of that program, he was required to sign a waiver which

was designed to facilitate use of the program and preclude the

need for formal removal proceedings. See 8 U.S.C.

§ 1187(b). The waiver reads as follows, in pertinent part: 

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 an application for asylum, any

action in deportation. 

. . . . 

WARNING: . . . You are authorized to stay in the

U.S. for 90 days or less . . . . Violation of these terms

will subject you to deportation. 

His purpose in coming was to take medical board examinations, which were held on June 11, 2003, beyond the ninetyday period — that period expired on June 2, 2003. He asserts,

however, that he had planned to leave the United States

before the ninety-day period expired and then to reenter. He,

for various reasons, did not do so. He stayed on and even

scheduled his return trip to the United Kingdom for July 22,

2003, a date, obviously, far beyond the expiration of his

ninety days. 

In the meantime, Handa decided that he would take a threeday vacation trip to Vancouver, British Colombia. In pursuit

of that diversion, on June 14, 2003, he presented himself to

the Canadian authorities at the Blaine, Washington, border

crossing. He was inspected there by a member of the Canadian Immigration Service, who noted that Handa’s VWP visa

had expired. That official did not admit Handa to Canada.

Handa, for his part, voluntarily withdrew his application to

enter Canada and left its soil without delay, as he promised to

do. He was told to turn the car around and go back to the

3692 HANDA v. CLARK
United States immigration authorities, which he promptly did

by circling the Canadian flag pole, recrossing the border, and

presenting himself to the United States officials. Those officials arrested him as a visa overstay and in due course

removed him to the United Kingdom on July 21, 2003. In the

meantime, however, Handa filed the present habeas corpus

petition on July 17, 2003. 

The district court denied Handa’s petition for lack of jurisdiction, and, in the alternative, on the merits. Handa I, 312 F.

Supp. 2d at 1375. This appeal followed. 

STANDARD OF REVIEW

We review the district court’s denial of Handa’s petition for

a writ of habeas corpus de novo. Ferreira v. Ashcroft, 382

F.3d 1045, 1049 (9th Cir. 2004). 

JURISDICTION

We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(a). Whether the district court had subject matter jurisdiction presents a more knotty problem, most of which was

unraveled in the district court’s excellent opinion, much of

which we agree with and adopt, as hereinafter indicated. We

will take up each of the government’s challenges in turn. 

First, the government asserts that because Handa has been

physically removed, jurisdiction to proceed has terminated.

We, however, agree with the district court that because

Handa’s petition for a writ of habeas corpus was filed before

his physical removal and because there are collateral consequences as a result of that removal,2

 jurisdiction remains. In

short, we agree with and adopt the district court’s discussion

of this issue in Handa I, 312 F. Supp. 2d at 1370. 

2

See 8 U.S.C. § 1182(a)(9)(A)(ii) (inadmissible for ten years). 

HANDA v. CLARK 3693
Second, we agree with the district court that because Handa

did waive his rights, he actually had no further administrative

remedies to exhaust at the time he commenced his habeas corpus action. Id.

Third, we further agree with the district court that Handa

did not properly raise constitutional claims before it. See id.

at 1372. The sum total of his presentation was a statement in

his habeas corpus petition that, “[b]y failing to adopt reasonable and lawful procedures for determining whether a person

is removable under 8 C.F.R. § 217.4, BICE has violated substantive and procedural Due Process.” As a result, Handa has

waived his constitutional claims on appeal because a mere

passing reference to a constitutional claim is not sufficient to

raise that claim before the district court, and does not preserve

the claim for our review. See Crawford v. Lungren, 96 F.3d

380, 389 n.6 (9th Cir. 1996). Briefly stated, a party cannot

treat the district court as a mere ill-placed bunker to be circumvented on his way to this court where he will actually

engage his opponents. Id.

Nevertheless, we are not able to agree with the district

court that Handa entirely waived his claim that the government improperly applied the VWP procedures to him. Handa

I, 312 F. Supp. at 1372. He can still assert that (1) he was not

subject to them at all, and (2) the law required that he be

brought before an immigration judge (IJ) before he was

removed. 

We do agree that when Handa signed the waiver, he gave

up the possibility of other forms of relief, as well as the

opportunity to challenge the merits of a removal decision arising out of his VWP entry. See, e.g., Itaeva v. INS, 314 F.3d

1238, 1241-42 (10th Cir. 2003); Nose v. Attorney Gen. of the

United States, 993 F.2d 75, 80 (5th Cir. 1993). It is true that

a decision of this case requires consideration of the merits of

Handa’s position that he was no longer in the VWP at all.

However, that is not the equivalent of deciding the merits of

3694 HANDA v. CLARK
a claim by a person in the VWP that he should not be

removed. Nor is the claim that the government ignored the

statutory procedures for removal when it did not take the case

to an IJ waived.3 We will, therefore, consider those claims. 

DISCUSSION

While we do not agree with the district court’s determination that it lacked jurisdiction to consider Handa’s claim that

he was not under the VWP at all, we do agree with its conclusion that Handa’s departure-and-reentry argument is unpersuasive. We, therefore, adopt the district court’s decision in

Handa I, 312 F. Supp. 2d at 1372-74, as dispositive of that

claim. We add only that it would be amazing indeed if Congress intended that an alien who was here on the special VWP

could remove himself from the strictures of that program by

the maneuver that Handa claims to have executed here — a

mere physical entry into Canada for a few seconds. 

That leaves us with Handa’s claim that the statutory procedures were not followed because he was not brought before

an IJ. In analyzing this claim the district court said: 

Lastly, Dr. Handa argues that the Governments’

removal procedures violate the INA because he was

not entitled to sit before an immigration judge. Dr.

Handa cites INA § 240(a)(3), which governs

removal procedures: “Unless otherwise specified in

this chapter, proceedings under this section shall be

the sole and exclusive procedure for determining

whether an alien may be . . . removed from the

3Handa also suggests that the wrong immigration officer made the

removal decision. But the record shows that it was made by the persons

to whom removal authority was delegated. See 8 C.F.R. § 217.4(b); see

also 8 C.F.R. §§ 1.1(o), 2.1. Similarly, it is clear that he was notified of

the grounds of his removal — violation of the VWP. In short, we agree

with the district court’s disposal of those claims. See Handa I, 312 F.

Supp. 2d at 1373-74. 

HANDA v. CLARK 3695
United States.” 8 U.S.C. § 1229a(a)(3). Under this

“exclusive” procedure, an alien is entitled to sit

before an immigration judge, to have counsel, to

have a reasonable opportunity to examine the evidence against him, to present evidence on his behalf,

and to cross-examine witnesses presented by the

Government. See 8 U.S.C. § 1229a(b)(4). Dr. Handa,

however, overlooks the conditional language of INA

§ 240(a)(3): “Unless otherwise specified in this

chapter.” Congress has “otherwise specified” that

under the VWP, an alien waives his right to any

review or appeal of an immigration officer’s determination as to his deportability. 8 U.S.C. 1187(b);

see also, Wigglesworth v. INS, 319 F.3d 951, 960

(7th Cir. 2003) (VWP deportee “waived right to a

hearing on her deportation and her right to apply for

discretionary relief.”). 8 C.F.R. § 217.4(b) clarifies

this by providing that deportation of an alien under

the VWP “shall be effected without referral of the

alien to an immigration judge for determination of

deportability.” (Emphasis added). Contrary to his

contention, Dr. Handa, a VWP entrant, was not entitled to a hearing before an immigration judge. 

Id. at 1374-75. There is much force to the district court’s

determination, but more does need to be said because the statutory language is not hyaline. It does not expressly state that

a VWP alien cannot appear before an IJ; that demands more

discussion. 

In Morales-Izquierdo v. Ashcroft, 388 F.3d 1299, 1305 (9th

Cir. 2004), we held that the procedures for reinstatement of

prior orders of removal had to be conducted before an IJ and

that a regulation to the contrary was invalid. In so doing, we

applied a Chevron4 analysis. Morales-Izquierdo, 388 F.3d at

1302-04. 

4Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842-45, 104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984); see also FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 120 S. Ct.

1291, 1300-01, 146 L. Ed. 2d 121 (2000); INS v. Aguirre-Aguirre, 526

U.S. 415, 424, 119 S. Ct. 1439, 1445, 143 L. Ed. 2d 590 (1999). 

3696 HANDA v. CLARK
We referred to the fact that “[t]he plain language of INA

§ 240(a) [8 U.S.C. § 1229a(a)] unambiguously indicates that

an immigration judge must decide the ‘inadmissibility’ or

‘deportability’ of an alien.” Id. at 1303. The government

argued that reinstatement of a removal order was different,

but we responded that the provision in question did not say so,

and Congress could have said so if it had wished to. Id. at

1304. 

[1] Here, as the district court recognized, 8 U.S.C.

§ 1187(b) seems to say so, at least in a backhanded fashion.

It provides that the alien must waive any right — “(1) to

review or appeal under this chapter of an immigration officer’s determination as to the admissibility of the alien at the

port of entry into the United States, or (2) to contest, other

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

removal of the alien.” Id. And, of course, 8 U.S.C. § 1229a(a)

itself indicates that its provisions are not exclusive; they

apply: “[u]nless otherwise specified in this chapter.” Id.

§ 1229a(a)(3). Again, § 1187(b) does appear to otherwise

specify. 

Some clarity is added by the context of 8 U.S.C.

§ 1187(b)’s provisions as a whole. At the port of entry, the

alien waives the right to any review or appeal of an immigration officer’s determination. Id. § 1187(b)(1). Once allowed to

enter, the alien, as relevant here, gives up the right to “contest” his removal. Id. § 1187(b)(2). Of course, the word “contest” refers to disputation, contention, litigation, and the like.

See, e.g., 1 The Compact Edition of the Oxford English Dictionary 536 (1971); Webster’s Third New Int’l Dictionary 492

(1986). When the government decides to remove a VWP

alien, the alien has already waived the right to dispute or litigate the removal, but the whole purpose of having proceedings before an IJ is to have that officer preside over just such

a dispute. See 8 U.S.C. § 1229a(b).5 Requiring a hearing

5The IJ “shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.” Id. § 1229a(b)(1).

HANDA v. CLARK 3697
before an IJ would make little sense; it would only add delay

to what should be an expeditious procedure. 

[2] We can be quite confident that Congress did wish to

make the VWP process quick and simple. Congress saw that

the great advantages of the program were promoting better

relations with friendly nations, eliminating unnecessary barriers to travel, stimulating the travel industry, and alleviating

vast amounts of paperwork, particularly paperwork at consular offices. See H.R. Rep. No. 99-682, pt. I, at 50 (1986),

reprinted in 1986 U.S.C.C.A.N. 5649, 5654. At the same

time, Congress was well aware of the potential for abuse that

the program made possible. Id. And Congress sought to eliminate that by, among other things, using careful screening and

monitoring programs, while also providing that overstays will

be deportable “without any judicial recourse or review, except

when claiming asylum.” H.R. Rep. No. 106-564, at 7 (2000).

Again, this helps demonstrate that Congress wished to have

violators, like Handa, removed without the often extensive

delays and expensive processes which are involved in providing the adversary procedures that are presided over by IJs.

Surely, Congress did not wish to shift the great burdens on the

consular offices to the Attorney General. Yet, it must be

admitted that the answer to our question is still not pellucid.

This, then, presents a classic case for administrative construction. As the Supreme Court has told us: 

If, however, the court determines Congress has not

directly addressed the precise question at issue, the

court does not simply impose its own construction

on the statute, as would be necessary in the absence

Moreover, the alien has the right to counsel and “shall have a reasonable

opportunity to examine the evidence against the alien, to present evidence

on the alien’s own behalf, and to cross-examine witnesses presented by the

Government.” Id. § 1229a(b)(4)(A), (B). 

3698 HANDA v. CLARK
of an administrative interpretation. Rather, if the

statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the

agency’s answer is based on a permissible construction of the statute. 

Chevron, 467 U.S. at 843, 104 S. Ct. at 2781-82 (footnotes

omitted); see also Aguirre-Aguirre, 526 U.S. at 424, 119

S. Ct. at 1445. 

[3] Here, when faced with the possible uncertainty created

by Congress’s determination that VWP visa holders could not

seek review of admissibility determinations or contest

removal, and Congress’s declaration that, in general, both

sorts of proceedings are to be conducted before IJs, the

agency resolved any ambiguity by deciding that, in general,

“removal shall be determined by the district director who has

jurisdiction over the place where the alien is found, and shall

be effected without referral of the alien to an immigration

judge for a determination of deportability . . . .” 8 C.F.R.

§ 217.4(b)(1). That interpretation is not “arbitrary, capricious,

or manifestly contrary to the statute.” United States v.

Hernandez-Vermudez, 356 F.3d 1011, 1015 (9th Cir. 2004).

Therefore, Handa’s claim that he was improperly removed

because he was not permitted to have an IJ decide whether he

should be removed must come to naught. 

CONCLUSION

The VWP is designed to eliminate unnecessary red tape

and to make it possible for people to travel more easily to this

country, while also making it easier for United States citizens

to travel more easily to cooperating countries. But the linchpin of the program is the waiver, which assures that a person

who comes here with a VWP visa will leave on time and will

not raise a host of legal and factual claims to impede his

removal if he overstays. 

HANDA v. CLARK 3699
Handa, who was well aware of the restrictions upon his

entry and of his waiver, took it upon himself to overstay. He

was caught out and removed. He now seeks relief from the

consequences of his actions, but we need not be as strict as

Rhadamanthus in order to observe that Handa is not entitled

to relief from those consequences. Neither his vermiculate

claim that he bypassed the VWP by his brief step onto Canadian soil (a whole new kind of step transaction), nor his factitious argument that he had a right to appear before an IJ,

where he could not contest his removal, can serve his present

purposes. In fine, he is a peregrine who chose to violate our

laws, and who was properly removed from our shores. 

AFFIRMED. 

3700 HANDA v. CLARK