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Lavery v. Barr

United States Court of Appeals, Fifth Circuit

November 22, 2019

JOHN JOSEPH LAVERY, Petitioner
v.
WILLIAM P. BARR, U.S. ATTORNEY GENERAL, Respondent

          Petition for Review from a Decision of Immigration and Customs Enforcement

          Before JONES, SMITH, and HAYNES, Circuit Judges.

          EDITH H. JONES, CIRCUIT JUDGE

         John Lavery, the petitioner, was ordered removed from the United States by the Department of Homeland Security ("DHS") after he violated the terms of his admission under the Visa Waiver Program ("VWP"), 8 U.S.C. § 1187. He filed a motion to reopen pursuant to 8 C.F.R. § 103.5, positing that he never voluntarily and knowingly waived his right to a hearing before an immigration judge and thus should not be summarily removed. An Immigration and Customs Enforcement ("ICE") Deputy Field Office Director denied Lavery's motion, and Lavery filed a petition for review in this court. The government moved to dismiss for lack of jurisdiction. We DISMISS Lavery's petition for lack of jurisdiction because it calls for judicial review of the denial of a motion he is not entitled to file.

         BACKGROUND

         John Lavery is a native and citizen of the United Kingdom. He first entered the United States in 1974 using a B-2 visitor's visa. He remained in the United States for the next forty years in violation of the conditions of that visa.

         In December 2014, Lavery and his wife were given tickets for a trip to Scotland. The trip was scheduled for June 2015 and required Lavery to possess a visa to reenter the United States. Interestingly, he had maintained his U.K. passport. But the visa requirement presented a problem for Lavery because he did not have a visa and his American citizen wife was unaware that he was not a citizen of the United States. Lavery turned to his cousin for advice because she was a frequent traveler. She told Lavery about the VWP.

         The VWP "permits alien visitors to enter the United States from designated countries for a period not exceeding 90 days without obtaining a nonimmigrant visa." Nose v. Attorney Gen. of U.S., 993 F.2d 75, 77 (5th Cir. 1993). The program is dependent upon, inter alia, the alien's waiver of his right "to contest, other than on the basis of an application for asylum, any action for removal." 8 U.S.C. § 1187(b)(2). This waiver is the linchpin of the program; it allows VWP participants to enter the country expeditiously while streamlining their removal. When the VWP was first piloted, the waiver was executed using Form I-791. Visa Waiver Pilot Program, 53 Fed. Reg. 24, 898, 24, 901 (June 30, 1988) (to be codified at 8 C.F.R. pt. 217). That form was replaced a few years later by Form I-94W. Visa Waiver Pilot Program, 56 Fed. Reg. 32, 952 (July 18, 1991) (to be codified at 8 C.F.R. pt. 217). Form I-94W used to be completed when an alien entered the country. It is now, however, integrated as part of the Electronic System for Travel Authorization ("ESTA"). Changes to the Visa Waiver Program, 80 Fed. Reg. 32, 267, 32, 269 (June 8, 2015) (to be codified at 8 C.F.R. pt. 217) ("ESTA provide[s] for an automated collection of the information required on the [paper] Form I-94W . . . in advance of travel."). The ESTA is an online portal through which aliens apply for the VWP. Applicants who intend to travel by air or sea must submit an ESTA application-including signing the VWP waiver-and receive travel authorization before entering the United States. Id. at 32, 267.

         Just before leaving for Scotland, Lavery completed an ESTA application and was approved for admission into the United States. Lavery does not recall being informed that by applying for entry through the VWP he was waiving his right to a hearing before an immigration judge. He asserts that if that condition was "stated any place on the website," he either "missed it or did not understand it." The government, for its part, has produced Lavery's ESTA application. The application includes an "N" notation next to the field "Third Party Indicator" and a "Y" notation next to the field "Waived Rights," reflecting that Lavery personally filled out the application and certified that he waived his right to challenge removal except on the basis of an application for asylum.

         Lavery traveled to Scotland in 2015. He returned to the United States on June 30, 2015, and was admitted as a tourist under the VWP with authorization to remain in the country until September 27, 2015. He remained in the United States past that date. On March 7, 2017, Lavery was arrested for the crime of "Fraud-False Statement." He posted bond in the criminal proceeding but was immediately transferred into ICE custody.

         ICE issued a Notice of Intent to Remove ("NOIR") on March 22, 2017. The NOIR alleged that Lavery

executed a Form I-791, Visa Waiver Pilot Program Information Form that explained to [him] the conditions of admission under the Visa Waiver Pilot Program. When [Lavery] signed Form I-791, [he] also waived [his] right to contest any action for removal before an immigration judge and Board of Immigration Appeals, and to any judicial review of any and all of the above decisions.[1]

         On the same day, ICE issued an order of removal on the basis that Lavery failed to comply with the conditions of his admission under the VWP. The removal order made clear that because Lavery had been admitted under the VWP, he had "waived [his] right to contest any action for removal, except to apply for asylum." Lavery attests that neither the NOIR nor the order of removal was immediately served on him. And neither the NOIR nor the order of removal is accompanied by a certificate of service evidencing that these documents were served. Lavery maintains that he first saw these documents on February 16, 2018, when his immigration attorney brought them to his attention.

         On February 21, 2018, Lavery submitted Form I-290B and an accompanying brief to ICE's Enforcement and Removal Field Office in San Antonio, Texas, requesting that it "reopen [the] office's administrative order of removal." He argued that he did not knowingly and voluntarily waive his right to a hearing before an immigration judge and thus should not be summarily removed. On March 14, 2018, the Deputy Field Office Director ("Director") rejected Lavery's request, stating that "there is no appeal of the Immigration Officer's decision in this instance." The ...


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