15

‐ 1308

Vasconcelos v. Lynch



## In the



# United States Court of Appeals

**For the Second Circuit**

________

August Term, 2015

No. 15

‐ 1308

‐ ag

R UI G ILBERTO E NES DE V ASCONCELOS

,

Petitioner

,

v.

L ORETTA E. L YNCH

, U NITED S TATES A TTORNEY G ENERAL

, Respondent.

________

Petition for Review of a Final Order of the Department of Homeland

Security

________

Argued: May 18, 2016

Decided: November 2, 2016

________

Before: K EARSE

, J ACOBS

, and P ARKER

, Circuit Judges

.

________No. 15

‐ 1308

Rui Gilberto Enes de Vasconcelos, a citizen of Portugal and

native of Angola, petitions for review of a removal order issued by

the Department of Homeland Security without a hearing on the

ground that he waived the right to contest removal by submitting

via the Electronic System for Travel Authorization (“ESTA”) an

application to participate in the Visa Waiver Program (“VWP”), 8

U.S.C. § 1187, and subsequently entering the United States pursuant

to the program. The ESTA makes available online the I

‐ 94W

Nonimmigrant Visa Waiver Arrival/Departure Record Form, which

memorializes the terms of the program and contains a certification

that the applicant waives any right to a hearing. We are asked to

decide whether the government may establish waiver based upon an

ESTA record showing that a petitioner submitted an ESTA

application and thereby certified waiver, or whether, as Vasconcelos

urges, it must produce a physically signed I

‐ 94W. We hold that an

ESTA record is sufficient to establish waiver. Because the

administrative record supports the agency’s finding that

Vasconcelos waived his right to a hearing by submitting an ESTA

application and entering the United States pursuant to the VWP, the

petition is DENIED.

________

P AUL B. G ROTAS

, New York, N.Y., for Petitioner.

J AMIE D OWD (Benjamin C. Mizer, Principal

Deputy Assistant Attorney General, Anthony P.

Nicastro, Acting Assistant Director, Tracey N.

McDonald, Trial Attorney, Office of Immigration

Litigation, Department of Justice, Washington,

D.C., on the brief ), for Respondent.

________

2No. 15

‐ 1308

B ARRINGTON D. P ARKER

, Circuit Judge :

The Visa Waiver Program (“VWP”) allows eligible citizens

and nationals of designated countries to visit the United States for

up to ninety days without obtaining a visa, provided that they agree

to waive any right to contest removal other than by seeking asylum.

8 U.S.C. § 1187(a), (b)(2). Prior to 2009, the Department of Homeland

Security (“DHS”) required applicants to complete and physically

sign the I

‐ 94W Nonimmigrant Visa Waiver Arrival/Departure

Record Form, which memorializes the terms of the program and

contains a certification that the applicant waives any right to a

hearing. In response to legislation designed to modernize and

strengthen the security of the VWP, DHS developed the Electronic

System for Travel Authorization (“ESTA”), which makes the I

‐ 94W

available online and enables applicants to receive an automated

determination of eligibility in advance of travel.

Rui Gilberto Enes de Vasconcelos was ordered removed by

DHS without the benefit of a hearing on the ground that he waived

the right to challenge removal by submitting an ESTA application

and subsequently entering the country pursuant to the VWP. We

are asked to decide whether the government may establish waiver

based upon an ESTA record showing that a petitioner submitted an

ESTA application and thereby certified waiver, or whether, as

Vasconcelos urges, it must produce a physically signed I

‐ 94W. We

hold that an ESTA record is sufficient evidence of waiver. Because

the administrative record supports the agency’s finding that

Vasconcelos waived his right to a hearing by submitting an ESTA

application and entering the United States pursuant to the VWP, the

petition is DENIED.

3No. 15

‐ 1308

BACKGROUND

Vasconcelos is a citizen of Portugal and native of Angola who

has resided in the United States since 1989. He last entered the

country on June 25, 2012 at the port

‐ of

‐ entry at Champlain, New

York on the Canada

‐ United States border. Although the

circumstances of his admission are disputed, an ESTA computer

‐

generated record indicates that, approximately two months earlier,

he submitted via the ESTA an application to participate in the VWP,

in which he provided biographical, passport, and other information

necessary to determine his eligibility. The ESTA record also contains

an “N” notation next to the field “Third Party Indicator” and a “Y”

notation next to the field “Waived Rights,” reflecting that

Vasconcelos personally filled out and submitted the form and

certified that, by participating in the program, he waived any right

to challenge removal except by seeking asylum. Admin. R. at 3.

In October 2014, while incarcerated at the Nassau County

Correctional Center in East Meadow, New York for failing to pay

child support, Vasconcelos was interviewed by an immigration

officer. In connection with the interview, he submitted a sworn

affidavit acknowledging that he had last entered the United States in

June 2012 at the “New York/Canadian border, by bus,” using a

“Portuguese passport.” Admin. R. at 14. An “I

‐ 94 Arrival

Record”confirmed that he had entered the country on June 25, 2012

as a “Visa Waiver/Tourist (WT)” with an admission expiration date

of September 23, 2012. Admin. R. at 44. Based upon this

information, the immigration officer concluded that Vasconcelos had

entered the United States at Champlain, New York on June 25, 2012

“as a non

‐ immigrant Waiver Tourist (WT) under the Visa Waiver

Program (VWP) for a temporary period not to exceed September 23,

4No. 15

‐ 1308

2012” and was removable for failing to depart by that date. Admin.

R. at 7. On March 27, 2015, Vasconcelos was served with an arrest

warrant and order of removal that reiterated the immigration

officer’s findings and noted that he had “waived [his] right to

contest any action for removal, except to apply for asylum, having

applied for admission under [the VWP].” Admin. R. at 12.

Vasconcelos timely petitioned for review.

DISCUSSION

We have jurisdiction over final orders of removal, 8 U.S.C.

§ 1252(a)(1), and may review such orders issued pursuant to § 1187

for the purpose of determining whether the VWP’s statutory criteria

have been satisfied, see, e.g.

, Gjerjaj v. Holder

, 691 F.3d 288, 292–93 (2d

Cir. 2012). We review the agency’s factual findings for substantial

evidence and will set them aside only if “any reasonable adjudicator

would be compelled to conclude to the contrary.” Bah v. Mukasey

,

529 F.3d 99, 110 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Our

consideration of questions of law and the application of law to

undisputed facts is de novo

. See Shabaj v. Holder

, 602 F.3d 103, 105 (2d

Cir. 2010).

I.

Congress established the VWP in 1986 to facilitate

international travel and tourism, improve relations with friendly

nations, and reduce the administrative burdens that result from

unnecessary visa processing by authorizing the Attorney General

and the Secretary of State to waive the visa requirement for

nonimmigrant aliens who meet certain statutory requisites. See 8

U.S.C. § 1187(a); H.R. Rep. No. 99–682, pt. I, at 50 (1986), reprinted in

1986 U.S.C.C.A.N. 5649, 5654. To be eligible to participate in the

5No. 15

‐ 1308

program, a person must, among other things, be a citizen or national

of a designated country who is in possession of a valid, unexpired

passport, does not present a threat to national security, and promises

to depart the country within ninety days of entry. 8 U.S.C.

§ 1187(a)(1)–(3), (6). 1 Participants also must agree to waive any right

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

action for removal.” Id. § 1187(b)(2). If a VWP entrant fails to leave

the country within the ninety

‐ day time frame (or becomes

removable for some other reason), the DHS district director for the

jurisdiction in which he is located may order him removed without

referring him to an immigration judge for a hearing. 8 C.F.R.

§§ 217.4(b), 1208.2(c)(iv). Because a continuously present resident

alien has a constitutional right to a pre

‐ removal hearing, e.g.

, Landon

v. Plasencia

, 459 U.S. 21, 32 (1982), the waiver of that right acts as the

“linchpin of the program,” Handa v. Clark

, 401 F.3d 1129, 1135 (9th

Cir. 2005), ensuring that the statute accomplishes “Congress’s goal of

allowing VWP participants expeditious entry into the country but

streamlining their removal,” Gjerjaj

, 691 F.3d at 293.

Before 2009, applicants were required to present upon arrival

a “completed, signed Form I

‐ 94W,” which memorializes the terms of

the program and collects biographical and other information

necessary to determine eligibility. 8 C.F.R. § 217.2(b)(1); Bayo v.

Napolitano

, 593 F.3d 495, 499 (7th Cir. 2010) (en banc). The I

‐ 94W

also contains a certification that the applicant “hereby waive[s] any

right[]

. . . to contest, other than on the basis of an application for

asylum, any action in deportation.” 2 In Galluzzo v. Holder

, we held

1 Portugal is among the thirty

‐ six designated countries. 8 C.F.R. § 217.2(a).

2 U.S. Customs and Border Protection, Form I

‐ 94W Nonimmigrant Visa Waiver

Arrival/Departure Record, available at

https://www.cbp.gov/sites/default/files/documents/%20I

‐ 94W%20English%20%2811

‐ 11

6No. 15

‐ 1308

that because “we indulge every reasonable presumption against

waiver of fundamental constitutional rights,” the government

cannot rely solely upon a person’s status as a VWP entrant to show

that he waived his right to a hearing, but rather must offer “explicit

evidence of waiver.” 633 F.3d 111, 114–15 (2d Cir. 2011) (citation

omitted) (emphasis removed). A physically signed I

‐ 94W thus

played a central role in the program’s operation.

In the wake of the terrorist attacks on the United States on

September 11, 2001, Congress passed the Implementing

Recommendations of the 9/11 Commission Act of 2007, Pub. L. No.

110–53, 121 Stat. 266, in order to “modernize and strengthen the

security of the visa waiver program.” 121 Stat. 266 § 711(b), 121 Stat.

at 338. Unlike visitors who obtain a visa at a consular post overseas

before traveling, VWP participants were not screened for entry until

they arrived in the United States. See Changes to the Visa Waiver

Program to Implement the Electronic System for Travel

Authorization (ESTA) Program, 73 Fed. Reg. 32,440, 32,441–42 (June

9, 2008). As a result, thousands were turned away at the port

‐ of

‐

entry annually, “causing significant expense, delay, and

inconvenience for those aliens, other travelers, and the U.S.

government.” Id. at 32,442. In addition, the security vulnerabilities

of such a system created a risk that terrorists and other criminal

actors might exploit the program to enter the country. Privacy Act

of 1974; Department of Homeland Security/U.S. Customs and Border

Protection (DHS/CBP)–009 Electronic System for Travel

Authorization (ESTA) System of Records, 79 Fed. Reg. 65,414, 65,414

(Nov. 4, 2014). To address these concerns, the 9/11 Commission Act

requires the Secretary of Homeland Security, in consultation with

%29%20FINAL%20%28refer ence%20only%29.pdf (last visited October 26, 2016).

7No. 15

‐ 1308

the Secretary of State, to develop and implement a “fully automated

electronic travel authorization system

. . . to collect such biographical

and other information as the Secretary

. . . determines necessary to

determine, in advance of travel, the eligibility of, and whether there

exists a law enforcement or security risk in permitting, the alien to

travel to the United States.” 121 Stat. 266, § 711(d)(1)(E), 121 Stat. at

344 (adding 8 U.S.C. § 1187(h)(3)(A)). The Act further provides that

“each alien traveling under the [VWP] shall, before applying for

admission to the United States, electronically provide to the system”

such information. Id. § 711(d)(1)(A)(ii), 121 Stat. at 341 (adding 8

U.S.C. § 1187(a)(11)).

Pursuant to these directives, DHS developed and

implemented the ESTA, which makes the I

‐ 94W available online in

twenty

‐ two languages and enables applicants to receive an

automated determination of eligibility prior to travel. See Official

ESTA Application,

https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1;

Changes to the Visa Waiver Program to Implement the Electronic

System for Travel Authorization (ESTA) Program and the Fee for

Use of the System, 80 Fed. Reg. 32,267, 32,269 (June 8, 2015) (“ESTA

provide[s] for an automated collection of the information required

on the Form I

‐ 94W

. . . paper form

. . . in advance of travel.”). Under

the new system, applicants who intend to travel by air or sea must

submit an ESTA application and receive a travel authorization

before departing to the United States. Id. at 32,267. Applicants who

enter the country by land currently need not submit an ESTA

application, but if they have an approved ESTA, they may bypass

the requirement of completing a paper I

‐ 94W at the port

‐ of

‐ entry.

See Frequently Asked Questions,

8No. 15

‐ 1308

https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1.

Information submitted via the ESTA is checked against security and

law enforcement databases and stored in the system to satisfy the I

‐

94W retention requirement. See Privacy Act of 1974; Department of

Homeland Security, U.S. Customs and Border Protection

– Electronic

System for Travel Authorization (ESTA), Systems of Records, 73 Fed.

Reg. 32,720, 32,720 (June 10, 2008). An authorization to travel is

valid for two years, or until the applicant’s passport expires, and

may be used repeatedly during that time. 8 C.F.R. § 217.5(d)(1); The

Electronic System for Travel Authorization: Mandatory Compliance

Required for Travel Under the Visa Waiver Program, 73 Fed. Reg.

67,354, 67,354 (Nov. 13, 2008). Although an approved ESTA

expedites the admission process, a determination of eligibility does

not mean that a person is admissible; that determination is instead

made, as under the pre

‐ ESTA framework, by a Customs and Border

Protection officer at the port

‐ of

‐ entry. 8 U.S.C. § 1187(h)(3)(C)(ii); 8

C.F.R. § 217.5(f)(1).

II.

This petition requires us to resolve whether the government

may establish waiver based upon an ESTA record. Vasconcelos

contends that, under Galluzzo

, the government must obtain a

physically signed I

‐ 94W, notwithstanding the implementation of the

new electronic system. The government takes the view that Galluzzo

is not determinative because it addresses the burden of proof under

the pre

‐ ESTA framework and, in any event, the ESTA record is

“explicit evidence of waiver,” 633 F.3d at 114, because it shows that

Vasconcelos submitted an ESTA application and thereby certified

that he waived any right to contest removal.

9No. 15

‐ 1308

We agree with the government that an ESTA record is

sufficient to establish waiver. Nothing in Galluzzo requires the

production of a physically signed I

‐ 94W, even under the pre

‐ ESTA,

paper

‐ based system. On the contrary, we reasoned that the

government had failed to demonstrate waiver because the record

was “silent as to whether Galluzzo signed or otherwise agreed to

waive his rights to contest removal.” Id. at 115 (emphasis added); cf.

Bradley v. Att’y Gen.

, 603 F.3d 235, 237

‐ 239 (3d Cir. 2010) (finding

sufficient evidence of waiver where the petitioner admitted in a

declaration that he had signed a form, presented it to a customs

officer, and was then admitted into the United States, and the record

contained the relevant portion of a handwritten Form I

‐ 94W with

Bradley’s name and date of birth, and the stamped date on which

Bradley was admitted). Here, the ESTA record shows that

Vasconcelos personally completed and submitted the application

and thereby agreed that he waived the right to a hearing. As a

record generated by public officials in the ordinary course of their

duties, it is presumed reliable and may serve as competent evidence

in immigration proceedings. See, e.g.

, Felzcerek v. I.N.S.

, 75 F.3d 112,

117 (2d Cir. 1996) (citing Fed. R. Evid. 803(8) to justify reliance on

Form I

‐ 213).

In any event, we had no occasion in Galluzzo to consider what

proof of waiver would be appropriate under an electronic

application system, and we see no constitutional basis for

categorically prohibiting the electronic waiver of rights. See, e.g.

,

United States v. Luja

, 448 F.3d 86, 88–89, 92–93 (1st Cir. 2006)

(rejecting the notion that the defendant’s waiver of her right to a jury

trial, effected through counsel’s electronic signature, was invalid).

Indeed, the only other court of appeals to consider the issue

10No. 15

‐ 1308

summarily found that the ESTA’s electronic waiver was valid. See

Cho v. Att’y Gen.

, 606 F. App’x 574, 575 (11th Cir. 2015) (per curiam).

We also did not consider in Galluzzo the implications of the 9/11

Commission Act, which was passed, as noted, to modernize and

strengthen the security of the VWP by requiring the Secretary to

“develop and implement a fully automated electronic travel

authorization system,” 8 U.S.C. § 1187(h)(3)(A) (emphasis added),

that enables DHS to collect from all applicants the information

necessary to determine their eligibility and security risk in advance

of travel, see id. § 1187(a)(11). Pursuant to the Act, DHS has included

in the ESTA application a certification of waiver

– a key requirement

for determining eligibility. Were the government precluded from

relying upon the ESTA’s electronic certification of waiver, it would

be impossible for DHS to implement the system envisioned by

Congress. Vasconcelos fails to persuade us that the use of electronic

certification of waiver such as the one at issue here warrants

upending the statutory framework.

Because our case law does not foreclose the use of electronic

waiver, we hold that an ESTA record showing that a petitioner

submitted an ESTA application and thereby certified that he waived

his right to a hearing is sufficient to establish waiver. That does not

mean, of course, that an ESTA record is invariably conclusive

evidence of waiver. While records generated by public officials in

the ordinary course of their duties are presumed reliable, that

presumption may be rebutted by evidence that “the sources of

information or other circumstances indicate a lack of

trustworthiness,” or by evidence that contradicts or impeaches the

record’s contents. E.g.

, Felzcerek

, 75 F.3d at 117 (quoting Fed. R. Evid.

803(8)). Vasconcelos gives us little reason, however, to doubt the

11No. 15

‐ 1308

reliability of the ESTA record in this case. Although he claims that

the government should not be permitted to rely on a “self

‐ serving”

computer record, Pet’r’s Br. at 11, the fact that the record supports

the government’s position is irrelevant to its reliability.

Unable to undermine the ESTA record itself, Vasconcelos

contends that even if he submitted an ESTA application in which he

waived his right to a hearing, he is not constrained by the strictures

of the VWP because he did not gain admission to the country

pursuant to the program. We recognize that Vasconcelos might not

be bound by his waiver if he did not receive the benefit of expedited

admission. See Gjerjaj

, 691 F.3d at 292 (“The VWP offers aliens the

benefit of expedited entry as a quid pro quo in exchange for a waiver

of rights.”) (internal quotation marks omitted). We believe,

however, that the agency’s determination that he entered the

country pursuant to the program based upon his ESTA application

is supported by substantial evidence. The ESTA record shows that

Vasconcelos submitted an application approximately two months

before he was admitted on June 25, 2012, Vasconcelos affirmed that

he was able to gain entry to the country with a “Portuguese

passport” alone, Admin. R. at 14, and the I

‐ 94 Arrival Record

indicates that he was logged upon arrival as a “Visa

Waiver/Tourist,” Admin. R. at 44.

Vasconcelos’s efforts to undercut the agency’s finding do not

convince us otherwise. He argues that his ESTA application could

not have been approved because it is missing certain requested

information, including a foreign address, an address in the United

States where he would be residing, a phone number, and airline and

flight information. But because none of the missing information is

12No. 15

‐ 1308

statutorily required to determine eligibility, it is unclear whether

approval was contingent upon its inclusion, and we cannot say on

the basis of these omissions that the application could not have been

approved. Vasconcelos also surmises that his application in fact was

not approved because the ESTA record includes the notation

“Expired” next to the field “Application Status.” Admin. R. at 3.

That notation, however, merely reflects that on the date on which

the ESTA record was retrieved from DHS’s database (June 16, 2015),

more than two years had passed since Vasconcelos’s application had

been approved. See Privacy Act of 1974; Department of Homeland

Security, U.S. Customs and Border Protection

– Electronic System for

Travel Authorization (ESTA), Systems of Records, 73 Fed. Reg.

32,720, 32,724 (June 10, 2008).

Along the same lines, Vasconcelos claims that he could not

have participated in the VWP because the administrative record

does not contain a copy of his passport and a round

‐ trip ticket, both

of which are, in his view, statutory prerequisites for participating in

the program. But we have never required the government to retain

proof that a petitioner satisfied each of the statute’s numerous

requirements for participation at the time of entry. Quite the

opposite, we have recognized that a waiver is binding on a person

who gains admission under the VWP even if they were ineligible to

participate in the program in the first place. See Shabaj

, 602 F.3d at

105–06. At any rate, the record shows that Vasconcelos had a valid,

unexpired passport at the time of entry, as the ESTA record includes

his passport information and he confirmed in his sworn affidavit

that he was able to enter the country using a “Portuguese passport.”

Admin. R. at 14. And although the record does not indicate that

Vasconcelos had a round

‐ trip ticket, the Secretary has waived that

13No. 15

‐ 1308

requirement for participants who, like him, enter the country by

land. See 8 U.S.C. § 1187(a)(8); 8 C.F.R. § 217.2(c)(2).

Citing DHS regulations, Vasconcelos alternatively asserts that

he could not have participated in the VWP based upon his ESTA

application because, as a person arriving by land, he was ineligible

to use the electronic system and was required to physically sign an I

‐

94W when he crossed the border. The provision on which he relies,

however, simply states that “[a]n applicant arriving at a land

‐ border

port

‐ of

‐ entry will be charged a fee

. . . for issuance of Form I

‐ 94W.”

8 C.F.R. § 217.2(c)(2). It does not prohibit applicants arriving by land

from submitting an ESTA application beforehand and using that

submission to satisfy the I

‐ 94W requirement, which is precisely what

other DHS regulations permit. Frequently Asked Questions,

https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1.

Vasconcelos lastly relies on two portions of the administrative

record which he believes show that he entered the country using a

visa, rather than as a visa waiver tourist. He points first to the I

‐ 94

Arrival Record and claims that only the I

‐ 94W is used in connection

with visa waiver entrants. But he offers no support for this

contention, and the I

‐ 94 provides that “[t]his form must be

completed by all persons except U.S. citizens, returning resident

aliens, aliens with immigrant visas

, and Canadian Citizens visiting or

in transit.” 3 It would appear, then, that DHS maintains an I

‐ 94 and I

‐

94W for persons admitted under the program, so there is nothing

unusual about the presence in the record of an I

‐ 94. Indeed,

3 U.S. Customs and Border Protection, Form I

‐ 94W Nonimmigrant Visa Waiver

Arrival/Departure Record, available at

https://www.cbp.gov/sites/default/files/documents/%20I

‐ 94W%20English%20%2811

‐ 11

%29%20FINAL%20%28refer ence%20only%29.pdf (last visited October 26, 2016).

14No. 15

‐ 1308

Vasconcelos’s own I

‐ 94 Arrival Record contains a field for “Visa

Class” and indicates that he was admitted as a “Visa

Waiver/Tourist.” This entry would be nonsensical if VWP entrants

were not or could not be assigned I

‐ 94 records. Cf. Mokarram v. Att’y

Gen.

, 316 Fed. App’x 949, 950–51 (11th Cir. 2009) (per curiam)

(observing that the petitioner’s “I

‐ 94 Departure Record” contained a

“WT” notation, indicating that he had been admitted under the

VWP).

Vasconcelos also observes that he was provided with a Form

I

‐ 826 Notice of Rights and Request for Deposition, which states,

“You have a right to a hearing before the Immigration Court to

determine whether you may remain in the United States.” Admin.

R. at 20. By supplying him with this form, he argues, DHS

acknowledged that he had entered the country as a visitor entitled to

a hearing, and not under the VWP. We are not persuaded. When

initiating removal proceedings, the DHS is required by statute to

provide an alien with a notice of rights, including the right to a

hearing before an immigration officer. 8 U.S.C. § 1229; see Nolasco v.

Holder

, 637 F.3d 159, 163–64 (2d Cir. 2011). The fact that Vasconcelos

was provided with the standard notice of the right to a hearing does

not mean that he could not have previously waived that right as a

condition of entry under the VWP.

While potential irregularities in the administrative record

might cause a reasonable adjudicator to conclude that Vasconcelos

did not enter the country pursuant to the VWP based on his ESTA

application, we cannot say that any reasonable adjudicator would be

compelled to reach that conclusion. Because DHS’s factual findings

are supported by substantial evidence, they are determinative.

15No. 15

‐ 1308

Having received the benefit of expedited entry in exchange for a

promise of expedited removal, Vasconcelos is bound by the terms of

the program and is not entitled to a hearing. See Gjerjaj

, 691 F.3d at

292.

CONCLUSION

For the foregoing reasons, and finding Vasconcelos’s

remaining arguments without merit, the petition is DENIED.

16