FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HAROLD JOHN RIERA-RIERA,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 13-73062

Agency No.

A200-245-971

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 10, 2016*

Pasadena, California

Filed November 28, 2016

Before: Mary M. Schroeder and Jay S. Bybee, Circuit

Judges, and William E. Smith,** Chief District Judge.

Opinion by Judge Schroeder

*

 The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable William E. Smith, Chief United States District

Judge for the District of Rhode Island, sitting by designation.
2 RIERA-RIERA V. LYNCH

SUMMARY***

Immigration

The panel denied Harold Riera-Riera’s petition for

review of the Board of Immigration Appeals’ decision

refusing to consider his adjustment of status application

because he entered the United States using a fraudulent

Italian passport to gain the benefits of the Visa Waiver

Program (VWP).

The panel held as a matter of first impression that the BIA

properly concluded that Riera-Riera could not seek

adjustment because he entered, albeit fraudulently, under

the VWP. The panel held that an alien who fraudulently

enters under the VWP is subject to the VWP’s limitations,

including waiving any challenge to deportation other than

asylum.

The panel also held that the BIA did not err in denying

Riera-Riera’s applications for asylum, withholding of

removal and relief under the Convention Against Torture,

because he failed to establish a nexus to a protected

ground, and the harm he suffered was insufficient for CAT

protection.

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
RIERA-RIERA V. LYNCH 3

COUNSEL

Jorget T. Cabrera, Studio City, California, for Petitioner.

Stefanie Notarino Hennes, Trial Attorney; Leslie McKay,

Assistant Director; Joyce R. Branda, Acting Assistant

Attorney General; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

SCHROEDER, Circuit Judge:

Petitioner Harold Riera-Riera, a native and citizen of

Peru, petitions for review of the Board of Immigration

Appeals’s (“BIA”) refusal to consider his application for

adjustment of status in proceedings limited to consideration

of relief related to asylum. Riera had fraudulently entered the

United States under an Italian passport in order to gain the

benefits of the Visa Waiver Program (“VWP”), that carried

with it a limitation of his rights to contest deportation. He

argues that since he is not now, and never has been, an alien

eligible for lawful admission under the VWP, he is not

subject to its limitation. While this is an issue of first

impression in this circuit, we now join the other circuits that

have rejected a similar argument. Given VWP’s limitation of

relief available in deportation proceedings, the BIA properly

refused to consider the application for adjustment of status. 

The denial of asylum and related relief, as well as the denial

of the claim under the Convention Against Torture (“CAT”),

were supported by substantial evidence. We therefore deny

the petition.
4 RIERA-RIERA V. LYNCH

BACKGROUND

We begin with the legal and factual background. The

VWP allows certain aliens who are “[n]ational[s] of program

countr[ies]” to enter the United States without a visa. 

8 U.S.C. § 1187(a)(2). Admission under the VWP is subject

to numerous restrictions, most relevant here are that the alien

present a valid passport from a qualifying country that offers

reciprocal rights to American citizens and that the alien

present a return ticket for departure from the United States

within ninety days. Id. Most importantly for this case, the

VWP requires that the alien agree not to “review or appeal

. . . an immigration officer’s determination as to the

admissibility of the alien at the port of entry into the United

States” or “to contest, other than on the basis of an

application for asylum, any action for removal of the alien.” 

8 U.S.C. § 1187(b). We have previously held that this

restriction is lawful. See Handa v. Clark, 401 F.3d 1129,

1135 (9th Cir. 2005).

Riera entered the United States in 1998 using an Italian

passport; Riera is a Peruvian citizen, however, and has never

been an Italian citizen. Since Italian nationals are able to

enter the United States under the VWP, while Peruvian

nationals are not, Riera used this fraudulently acquired Italian

passport to enter the United States without a visa. He agreed

to all conditions of VWP entry and presumably presented his

return ticket for a departure within ninety days.

Riera did not depart within ninety days; he remained in

the United States. In 2011, Riera came to the attention of the

Department of Homeland Security. After initially placing

Riera in removal proceedings, the Department realized that he

had entered under the VWP, and his removal proceedings
RIERA-RIERA V. LYNCH 5

were stayed. The Department then proceeded to order his

removal under the VWP. After ordering his removal, the

Department referred him to an Immigration Judge (“IJ”) for

asylum only proceedings. Before both the IJ and the BIA,

Riera argued that since he was not an Italian national, and

since his entry under the VWP was fraudulent, he could not

be bound to the VWP’s restrictions, and he was entitled to

have an IJ determine both his removeablity and his petition

for adjustment of status. The IJ and the BIA determined that

there was no jurisdiction under the VWP for consideration of

his non-asylum claims. They considered and denied the

asylum and CAT claims.

DISCUSSION

Whether an ineligible alien who fraudulently enters under

the VWP is bound by the VWP’s limitations, including its

waiver of any challenge to deportation other than asylum, has

never been addressed by this Circuit. The Second, Seventh,

and Eighth Circuits, however, have all considered this issue,

holding that the VWP limitations apply to those admitted

under the program without being eligible. See Shabaj v.

Holder, 602 F.3d 103, 105–06 (2d Cir. 2010) (same); Bayo v.

Napolitano, 593 F.3d 495, 501–02 (7th Cir. 2010) (en banc)

(holding that such entrants are bound by the VWP

limitations); Zine v. Mukasey, 517 F.3d 535, 542–43 (8th

Cir. 2008) (same). Similarly, the BIA has ruled that the

restrictions of the VWP bind ineligible aliens who enter the

country using fraudulent travel documents. See In re

Kanagasundram, 22 I. &. N. Dec. 963, 964 (BIA 1999).

Though the statute enacting the VWP does not expressly

address fraudulent entrants, the AttorneyGeneral has filled in

that gap via regulation, issuing a rule that those who
6 RIERA-RIERA V. LYNCH

“present[] fraudulent or counterfeit travel documents” will be

removed “without referral of the alien to an immigration

judge,” unless the alien “applies for asylum.” 8 C.F.R.

§ 217.4(a). All of the circuit decisions rely upon the

regulation.

There is no real issue concerning the validity of the

regulation interpreting the statute. We would evaluate that

interpretation under the two-step test from Chevron U.S.A.

Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 842–43 (1984). The first step is whether the statute is

ambiguous; it is. The statute does not address what happens

should a national of a non-VWP country apply or receive

entry under the VWP. The second step is whether the

Attorney General’s interpretation is reasonable; it is. Indeed,

as the Seventh Circuit has observed, “[t]here is little reason

to think that Congress would have wanted to confer the

benefits of the VWP on ineligible aliens while sparing them

the costs of entering under the [VWP].” Bayo, 593 F.3d at

501–02.

Riera raises a further argument, which is that the refusal

to consider his adjustment of status petition or to re-open

removal proceedings to allow for it to be considered, denied

him due process. Even assuming without deciding that due

process attaches to VWP admittees, however, the restrictions

of the VWP comport with whatever due process such

admittees are entitled. We recognized this in Bingham v.

Holder, 637 F.3d 1040, 1047 (9th Cir. 2011). In that case, we

observed that the procedure required by the VWP is neither

complex nor unfair. The alien signing the VWP forms gives

up any right to challenge removal, except on asylum grounds,

if he overstays the grant of time permitted by the VWP. 

Other courts have come to a similar conclusion. See Bradley
RIERA-RIERA V. LYNCH 7

v. Attorney Gen. of the U.S., 603 F.3d 235, 240–43 (3d Cir.

2010); Bayo, 593 F.3d at 505.

Petitioner also seeks review of the denial of his asylum

and withholding of removal claims. Riera is required to show

that he has suffered persecution or has a well-founded fear of

future persecution on account of one of five protected

statutory grounds: race, religion, nationality, political

opinion, or membership in a particular social group. See

8 U.S.C. § 1158(b)(1)(B)(i). Riera has never identified, let

alone argued, the ground on which he has been or would be

persecuted. This issue has been waived. The lack of a nexus

to a protected ground is dispositive of his asylum and

withholding of removal claims. See Parussimova v.

Mukasey, 555 F.3d 734, 740 (9th Cir. 2009).

With respect to the CAT claim, nothing in the record

compels a contrary conclusion to that of the IJ. See 8 U.S.C.

§ 1252(b)(4)(B). The harm that Riera suffered before he left

Peru did not rise to the level of torture, and he otherwise

relies on generalized evidence, which is insufficient for

protection under CAT. See Delgado-Ortiz v. Holder,

600 F.3d 1148, 1152 (9th Cir. 2010).

PETITION DENIED.