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08-6036-ag(L) Galluzzo v. Holder 1 UNITED STATES COURT OF APPEALS 2 3 F OR THE S ECOND C IRCUIT 4 5 6 7 August Term, 2010 8 9 (Argued: December 6, 2010 Decided: January 26, 2011) 10 11 Docket Nos. 08-6036-ag; 09-2255-cv 12 13 14 G IORGIO GALLUZZ O , 15 16 Petitioner-Appellant , 17 1 8 –v.– 19 2 0 E RIC H OLDER , JR ., U.S. A TTORNE Y G ENE RAL , 21 2 2 Respondent . 23 2 4 25 2 6 Before: 2 7 F EINBERG , B.D. P ARKER , and WESLEY , Circuit Judges . 28 2 9 Petition for review of an October 1, 2008 removal order 3 0 issued by United States Immigration and Customs Enforcement 3 1 and appeal from an order of the United States District Court 3 2 for the Southern District of New York (Rakoff, J .) entered 3 3 on March 28, 2009, dismissing Petitioner’s civil action 3 4 challenging the denial of his Application to Adjust Status 3 5 to that of a Lawful Permanent Resident. 36 37 P ETI TION REMANDE D . JUDGMENT A FFI RME D . 38 3 9 40Page 2 of 11 1 AMANDA G RAY , Bretz & Coven, LLP, New York, NY (David 2 K. S. Kim, Matthew L. Guadagno, Jules E. 3 Coven, Kerry W. Bretz, on the brief), for 4 Petitioner-Appellant . 5 6 B RIENA S TRI PPOLI , Trial Attorney, Office of 7 Immigration Litigation, Civil Division (Justin 8 R. Markel, Trial Attorney, Office of 9 Immigration Litigation, Civil Division, Tony 1 0 West, Assistant Attorney General, Carl H. 1 1 McIntyre, Assistant Director, on the brief), 1 2 for Eric H. Holder, Jr., United States 1 3 Attorney General, Washington, D.C. 14 1 5 16 1 7 P ER C URI AM : 1 8 Petitioner Giorgio Galluzzo, a native and citizen of 1 9 Italy, seeks review of an October 1, 2008 Order of Removal 2 0 issued under § 217 of the Immigration and Nationality Act 2 1 (“INA”), 8 U.S.C. § 1187. U.S. Immigration and Customs 2 2 Enforcement ("ICE") issued the removal order without 2 3 affording Galluzzo a hearing on the ground that Galluzzo 2 4 waived any right to be heard when he entered the United 2 5 States through the Visa Waiver Program (“VWP”) established 2 6 by § 1187. Galluzzo objects that he did not waive his right 2 7 to a hearing and that his due process rights were therefore 2 8 violated by the issuance of the removal order without a 2 9 prior hearing. Additionally, Galluzzo appeals from an order 3 0 of the United States District Court for the SouthernPage 3 of 11 1 District of New York (Rakoff, J. ) entered on March 28, 2009, 2 dismissing for lack of jurisdiction Galluzzo’s civil action 3 challenging the denial of his I-485 application to adjust 4 his immigration status. 5 For the reasons stated below, we find that, in the 6 absence of evidence of a waiver, Galluzzo’s due process 7 rights were violated by his failure to receive a hearing. 8 We REMAND to allow the Department of Homeland Security to 9 determine whether Galluzzo was substantially prejudiced by 1 0 this violation. As to the district court’s judgment, we 1 1 AFFIRM. 12 Background 1 3 On April 12, 1995, Galluzzo entered the United States 1 4 from Italy. Galluzzo concedes that he entered the United 1 5 States on a ninety-day tourist visa issued through the VWP, 1 6 which permits qualified visitors from certain countries to 1 7 enter the United States without applying for a standard 1 8 visa. See 8 U.S.C. § 1187(a) . There is little evidence in 1 9 the record, however, related to Galluzzo’s entry; the record 2 0 contains only a copy of Galluzzo’s Italian passport and a 2 1 copy of the front page of Galluzzo’s Form I-94W Departure 2 2 Record, filled out with his name and entry date in Italian.Page 4 of 11 1 Although the Government submits that Form I-94W contains a 2 waiver provision stating that a VWP entrant waives his right 3 to a hearing to contest removal, the Government did not 4 submit a Form I-94W waiver into the record. Nor, more 5 importantly, has the Government produced a signed waiver 6 executed by Galluzzo waiving his right to contest removal. 7 Galluzzo stayed well beyond the permitted ninety days. 8 Approximately three years after his entry, Galluzzo began 9 attempting to adjust his immigration status. On January 13, 1 0 1998, Galluzzo’s employer filed an Application for 1 1 Employment Certification on Galluzzo’s behalf. Once the 1 2 Department of Labor approved that application, Galluzzo’s 1 3 employer then filed a Form I-140 Immigrant Petition for 1 4 Alien Worker on Galluzzo’s behalf; the former Immigration 1 5 and Naturalization Services approved that petition on 1 6 November 21, 2001. On January 10, 2002, Galluzzo then filed 1 7 a Form I-485 Application to Register Permanent Resident or 1 8 Adjust Status. 1 9 On November 25, 2008, Galluzzo attended what he 2 0 believed to be a second interview related to his I-485 2 1 Application. Upon arrival, however, Galluzzo learned that 2 2 his I-485 Application had been denied on May 24, 2007. ThePage 5 of 11 1 denial decision informed Galluzzo that U.S. Citizenship and 2 Immigration Services (“USCIS”) found him ineligible for an 3 adjustment of status. The decision explained that an 4 alien’s willful misrepresentation renders him ineligible for 5 a visa and concluded, “It is clear that as a result of your 6 blatant disregard for the terms of the VWP you have 7 willfully misrepresented yourself in conjunction with your 8 entry into the United States.” 9 After he received the decision, Galluzzo alleges that 1 0 he was isolated from his attorney and asked to sign certain 1 1 forms. Upon his refusal, Galluzzo was reunited with his 1 2 attorney and allegedly interrogated by an FBI agent about 1 3 the Italian mafia; Galluzzo indicated that he did not know 1 4 any reputed members of the mafia. The FBI agent then 1 5 allegedly told him, “I don’t think there is anything I can 1 6 do here.” 1 7 Galluzzo was taken into ICE custody and served for the 1 8 first time with the October 1, 2008 Order of Removal. The 1 9 removal order states that Galluzzo is removable because (1) 2 0 he overstayed his ninety-day visa authorized under the VWP; 2 1 (2) his I-485 application was denied; and (3) as a VWP 2 2 entrant, he waived his right to contest removal except toPage 6 of 11 1 apply for asylum. Appellant remained in ICE detention from 2 November 25, 2008 until February 26, 2009 when he was 3 released under an Order of Supervision. 4 On December 11, 2008, Galluzzo filed a petition with 5 our Court for review of his removal order. Galluzzo does 6 not contend that he is eligible for asylum. Instead, 7 Galluzzo challenges his removal order on the ground that he 8 is eligible to adjust his immigration status. 9 On January 14, 2009, Galluzzo filed a civil action 1 0 challenging the denial of his I-485 application in the 1 1 Southern District of New York. On March 28, 2009, the 1 2 district court dismissed Galluzzo’s civil action, finding 1 3 that Galluzzo’s petition before our Court and his civil suit 1 4 raised similar claims challenging removal. Applying the 1 5 “first to file” rule, the district court refrained from 1 6 exercising its jurisdiction. 1 7 Galluzzo timely filed an appeal of the dismissal of his 1 8 civil action, and that action was consolidated with his 1 9 petition for review of his order of removal. 20 Discussion 21 A. Petition for Review 2 2 As an initial matter, contrary to the Government’sPage 7 of 11 1 suggestion, in the absence of a waiver, Galluzzo has a 2 constitutional right to a pre-removal hearing. Although an 3 alien’s constitutional rights are narrowly circumscribed 4 prior to entry, “once an alien gains admission to our 5 country and begins to develop the ties that go with 6 permanent residence his constitutional status changes 7 accordingly.” Landon v. Plasencia , 459 U.S. 21, 32 (1982) 8 (citation omitted); see also Plyler v. Doe , 457 U.S. 202, 9 210 (1982) (“Aliens, even aliens whose presence in this 1 0 country is unlawful, have long been recognized as ‘persons’ 1 1 guaranteed due process of law by the Fifth and Fourteenth 1 2 Amendments.”). Our sister circuits that have considered 1 3 this issue have likewise concluded that aliens similarly 1 4 situated to Galluzzo have a constitutional right, in the 1 5 absence of a waiver, to a hearing. See Bayo v. Napolitano , 1 6 593 F.3d 495, 502-03 (7th Cir. 2010) (en banc); Nose v. U.S. 17 Att’y Gen. , 993 F.2d 75, 78-79 (5th Cir. 1993); Mokarram v. 1 8 U.S. Att’y Gen. , 316 F. App’x 949, 952-53 (11th Cir. 2009) 1 9 (unpublished). 2 0 Given that Galluzzo had a constitutional right to a 2 1 hearing absent waiver and that the Government has submitted 2 2 no explicit evidence of waiver, we must determine whetherPage 8 of 11 1 Galluzzo’s status as a VWP entrant alone is de facto proof 2 that he waived his right to contest removal. The statute 3 authorizing the VWP stipulates that “[a]n alien may not be 4 provided a waiver under the [VWP] program unless the alien 5 has waived any right . . . to contest, other than on the 6 basis of an application for asylum, any action for removal 7 of the alien.” 8 U.S.C. § 1187(b)(2). Based on this 8 statutory language, the Government argues that Galluzzo 9 could not have entered the country absent waiver of his 1 0 right to a hearing and therefore urges us to presume that 1 1 Galluzzo must have waived his right to contest removal. 1 2 We decline to adopt this presumption. In fact, we 1 3 “indulge every reasonable presumption against waiver of 1 4 fundamental constitutional rights.” Johnson v. Zerbst , 304 1 5 U.S. 458, 464 (1938) (internal quotation marks omitted) 1 6 (emphasis added). The record is silent as to whether the 1 7 Form I-94W Departure Record Galluzzo filled out upon his 1 8 entry actually advised Galluzzo that he would waive his 1 9 right to a hearing to contest removal by entering the 2 0 country through the VWP. More significantly, the record is 2 1 likewise silent as to whether Galluzzo signed or otherwise 2 2 agreed to waive his rights to contest removal. We will notPage 9 of 11 1 presume away an evidentiary problem of the Government’s own 2 making. We agree with the Eleventh Circuit that “[i]t would 3 be unreasonable for this Court to conclude that waiver 4 occurred in the absence of anything more than the entry5 ergo-waiver logic offered by Respondent.” Mokarram , 316 F. 6 App’x at 953. Absent proof of a waiver, Galluzzo suffered a 7 violation of his right to due process when he was denied the 8 opportunity for a hearing prior to the issuance of the 9 removal order. 1 0 Galluzzo is not thereby entitled to relief, however, 1 1 unless he can show prejudice as a result of his failure to 1 2 receive a hearing. “Parties claiming denial of due process 1 3 in immigration cases must, in order to prevail, allege some 1 4 cognizable prejudice fairly attributable to the challenged 1 5 process.” Garcia-Villeda v. Mukasey , 531 F.3d 141, 149 (2d 1 6 Cir. 2008). We cannot determine whether Galluzzo suffered 1 7 prejudice without delving into the merits of Galluzzo’s 1 8 underlying claims, including his contention that he is 1 9 eligible to adjust his immigration status. Rather than make 2 0 that determination in the first instance, we remand to allow 2 1 the Department of Homeland Security to make a determinationPage 10 of 11 1 as to prejudice. See I.N.S. v. Ventura , 537 U.S. 12, 16 2 (2002) (discussing a determination of asylum eligibility and 3 holding that “the proper course, except in rare 4 circumstances, is to remand to the agency for additional 5 investigation or explanation”). 6 B. Appeal from the District Court 7 For the reasons stated by the district court, the 8 “first to file” rule applied to Galluzzo’s claims. See 9 First City Nat'l Bank & Trust Co. v. Simmons , 878 F.2d 76, 1 0 79 (2d Cir. 1989) (explaining that “[w]here there are two 1 1 competing lawsuits, the first should have priority, absent 1 2 the showing of balance of convenience or special 1 3 circumstances giving priority to the second” (citations 1 4 omitted) (internal ellipses omitted)). Accordingly, the 1 5 district court properly acted within its discretion when it 1 6 declined to exercise jurisdiction over Galluzzo’s civil 1 7 action. 18 Conclusion 1 9 For the above stated reasons, we REMAND Galluzzo’s 2 0 petition to the Department of Homeland Security for further 2 1 proceedings consistent with this order. The districtPage 11 of 11 1 court’s March 28, 2009 order dismissing Appellant’s civil 2 action is hereby AFFIRMED.