Petition for Review from a Decision of Immigration and
JONES, SMITH, and HAYNES, Circuit Judges.
H. JONES, CIRCUIT JUDGE
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.
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.
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.
"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.
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.
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
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.
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.
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 ...