Ferry v. Ashcroft

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 8, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

C IA RA N FER RY ,

Petitioner,
v. Nos. 03-9526/04-9555
ALBERTO R. GONZALES, Attorney
General of the United States,

Respondent.
_______________________________
C IA RA N FER RY ,

Petitioner-A ppellant,
v. No. 05-1014
SCOTT W EBBER, Director of Bureau
of Inspections and Customs
Enforcement, ALBERTO R.
GONZALES, Attorney General of the
United States, TOM RIDGE, Secretary
of the Department of Homeland
Security, EDUARDO AGUIRRE, JR.,
Acting Director of Bureau of
Citizenship and Immigration Services,
M ICHAEL J. GARCIA, Assistant
Secretary of Bureau of Immigration
and Customs Enforcement, M IKE
COM FO RT, District Director of the
Immigration and Naturalization
Service, JA M ES P. V A N D ELLO,
Immigration Judge, Executive Office
for Im migration R eview ,

Respondents-Appellees.
 PETITIO N FO R R EV IEW FRO M TH E BO AR D O F
IM M IGR ATION APPEALS
(A95-424-147)

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D .C . No. 03-N-580 (PAC))

Eamonn D ornan of Smith, Dornan & Dehn, PC, New York, New York (Jeff
Joseph of Joseph Law Firm, PC, Denver, Colorado; Thomas J. Burke, Jr. of Jones
& Keller, D enver, Colorado, with him on the briefs) for Petitioner-A ppellant.

Carl H. M cIntyre, Jr., Senior Litigation Counsel, (Peter D. Keisler, Assistant
Attorney General; Richard M . Evans, Assistant Director, Office of Immigration
Litigation, with him on the briefs), United States Department of Justice,
W ashington, D.C., for Respondents-Appellees.

Before TA CH A, Chief Judge, SEYM OUR, and BR ISC OE, Circuit Judges.

BR ISC OE, Circuit Judge.

Ciaran Ferry, a native of Northern Ireland, entered the United States in

December 2000 under the Visa W aiver Program (“VW P”), 8 U.S.C. § 1187, a

program which provides an expedited admission process for aliens from certain

countries and authorizes approved aliens to stay in the United States for up to

ninety days. The VW P also provides an expedited removal process. Before an

alien may enter the United States pursuant to the VW P, the alien is required to

sign a waiver of his right to contest removal other than through an application for

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asylum. § 1187(b)(2). Ferry remained in the United States long after the ninety

days he was authorized under the VW P had expired. Eventually, he filed for an

adjustment of status with the Department of Homeland Security (“DHS”) based

on his marriage to a United States Citizen. 1 On January 30, 2003, before a

decision w as rendered on Ferry’s application for adjustment of status, the DH S

arrested Ferry 2 and issued an administrative order of removal on the basis that

Ferry had overstayed the ninety days authorized under the VW P. Ferry remained

in DHS custody for almost twenty-three months before he was deported to Ireland

on December 21, 2004.

The three consolidated appeals we consider here arise from several

procedural postures, but they all represent Ferry’s efforts to challenge the DHS’s

removal order and the validity of his prolonged detention, as well as his attempts

to obtain asylum, relief under the Convention Against Torture (“CAT”), and, most

importantly, an adjustment of status as the spouse of a United States citizen.

1
“On M arch 1, 2003, the Immigration and Naturalization Service [“INS”]
ceased to exist as an independent agency within the Department of Justice, and its
functions were transferred to the Department of Homeland Security.” United
States v. Sandoval, 390 F.3d 1294, 1296 n.2 (10th Cir. 2004) (citing Homeland
Security Act, Pub. L. [No.] 107-296 Sec. 471, 116 Stat. 2135 (N ov. 25, 2002), 6
U.S.C. § 291). Ferry’s appeals cover the time period before and after the transfer
of functions between the INS and the DHS. For simplicity, this opinion refers to
the immigration agency as the DHS.
2
The DHS’s “immigration enforcement functions fall within the Directorate
of Border and Transportation Security, while [the DHS’s] immigration services
fall within the Bureau of Citizenship and Immigration Services.” Patel v.
Ashcroft, 375 F.3d 693, 695 n.1 (8th Cir. 2004).

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Specifically, Ferry petitions for review of the DHS district director’s order of

removal under the VW P, Case No. 03-9526, and petitions for review of the Board

of Immigration Appeals’ (“BIA”) order which affirmed an Immigration Judge’s

(“IJ”) denial of asylum and relief under CAT, as well as the IJ’s refusal to

consider Ferry’s application for adjustment of status on jurisdictional grounds,

Case No. 04-9555. 3 Ferry also appeals from the district court’s denial of his

petition for habeas corpus under 28 U.S.C. § 2241, Case No. 05-1014. 4 For the

reasons set forth below, we deny the petitions for review. As to the district

court’s denial of habeas relief, we vacate the portion of the district court’s

decision pertaining to Ferry’s challenges to his administrative order of removal,

convert that portion of Ferry’s habeas petition into a petition for review, and deny

the petition. As to the portion of the district court’s decision pertaining to Ferry’s

challenges to his detention, we affirm the district court’s dismissal because

Ferry’s claims are moot.

3
On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Alberto R. Gonzales is substituted for John Ashcroft as the
respondent in Case Nos. 03-9526, 04-9555, and 05-1014.
4
On April 4, 2003, Ferry filed a petition for writ of mandamus requesting
this court to compel the DHS to adjudicate his adjustment of status application.
Case No. 03-9542. He also filed a motion for declaratory and injunctive relief,
and an emergency motion for immediate release. On April 25, 2003, we denied
Ferry’s writ of mandamus, motion for immediate declaratory and injunctive relief,
and emergency motion for immediate release. Although the parties have
continued to include Case No. 03-9542 in their case captions, the case is closed.

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I. BAC KGRO U N D

Ferry is a native of Northern Ireland and a citizen of both the United

Kingdom and the Republic of Ireland. In 1992, Ferry joined the Irish Republican

Army (“IRA”). In M arch 1993, Ferry and two other IRA members drove to

Dublin, Ireland allegedly to participate in an IRA training camp. During the trip,

members of the Royal Ulster Constabulary (“RUC”), the police force in N orthern

Ireland from 1922 to 2001, stopped the vehicle and recovered two assault rifles

and several rounds of ammunition.

Ferry was charged with conspiracy to commit murder, possession of

w eapons with intent to endanger life or property, and possession of weapons. H e

was tried at the Crow n Court in Belfast, Northern Ireland, a non-jury court

system, and found guilty of the first two charges. The Crown Court imposed

concurrent sentences of twenty-two years on the conspiracy charge, and sixteen

years on the possession of weapons w ith intent to endanger life or property

charge, to be served at Long Kesh prison outside of Belfast. On July 18, 2000,

after seven years’ imprisonment, Ferry was released pursuant to the Good Friday

Agreement, signed on April 10, 1998, which called for the release of IRA

prisoners. On August 5, 2000, Ferry married Heaven Sheehan, a United States

C itizen, at the B elfast C ity H all. Shortly thereafter, Ferry claimed that the RUC

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informed him that his name was on the death list of loyalist paramilitary groups in

Northern Ireland.

On December 12, 2000, Ferry entered the United States under the VW P,

obtaining authorization to remain in the country until M arch 11, 2001. In

exchange for expedited entry under the VW P, Ferry executed a Nonimmigrant

V isa W aiver A rrival/D eparture Form (“Form I-94W ”). Admin. R. at 826-27. O n

the Form I-94W , Ferry waived his right “to contest, other than on the basis of an

application for asylum, any action in deportation.” See 8 U.S.C. § 1187(b)(2).

Ferry also marked “no” in response to the question of whether he had “ever been

arrested or convicted for an offense or crime involving moral turpitude . . . or

been arrested or convicted for two or more offenses for which the aggregate

sentence to confinement was five years or more . . . . ” See id. § 1187(a)(6)

(requiring an alien admitted under the VW P “not to represent a threat to the

welfare, health, safety, or security of the U nited States”).

On M arch 5, 2002, almost a year after his VW P visa expired, Ferry filed a

Form I-485 application to adjust status and a Form I-765 request for employment

authorization with the DHS district office in Denver, Colorado. That same day,

Ferry’s w ife filed a Form I-130 immediate relative visa petition. The DHS

granted Ferry a work permit, but the adjustment of status application and the

immediate relative petition remained pending.

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 On January 30, 2003, the DHS scheduled an interview with Ferry and his

wife in Denver, Colorado, regarding his adjustment of status application and her

im mediate relative petition. When Ferry and his wife arrived for the interview,

DHS officials arrested Ferry. 5 On January 31, the DHS district director issued an

administrative order of removal, concluding that Ferry had overstayed under the

terms of his VW P visa. 6 Admin. R. at 2503. The order informed Ferry that

because he was admitted under the VW P, he could only contest the order of

removal by applying for asylum. Id. On February 4, after Ferry expressed

interest in applying for asylum, the DHS referred him to an immigration judge for

asylum-only proceedings. 7

On February 19, 2003, the DHS approved Ferry’s wife’s Form I-130

immediate relative visa petition. Admin. R. at 2703. However, on M ay 23, 2003,

the DHS district director denied Ferry’s Form I-485 adjustment of status

5
Ferry was immediately transferred to the Federal Corrections Institution in
Englewood, Colorado. He remained in custody there until February 26, 2003,
when he was transferred to the maximum security division of the Denver County
Jail. Then on September 17, 2003, Ferry was moved to the Jefferson County Jail.
6
The responsibility for an administrative order of removal under the VW P is
given to the “district director who has jurisdiction over the place where the alien
is found.” 8 C.F.R. § 217.4(b)(1). The regulation further states that such removal
“shall be effected w ithout referral of the alien to an immigration judge for a
determination of deportability, except . . . [for] an alien . . . who applies for
asylum in the United States . . . .” Id.
7
Ferry did not actually file his asylum application until A pril 4, 2003.
Admin. R. at 2698.

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application. Id. at 822-25. The director reasoned that although Ferry was the

beneficiary of an approved Form I-130 petition filed by his spouse, the record

demonstrated that Ferry was inadmissible on two grounds. 8 First, the director

stated that Ferry remained convicted of conspiracy to comm it murder and of

possession of firearms with intent to endanger life. The director determined that

these crimes involved moral turpitude and were not purely political offenses. A s

a result, the director concluded that Ferry was inadmissible pursuant to 8 U.S.C. §

1182(a)(2)(A)(i)(I). 9 Second, the director stated that Ferry was inadmissible

because when he entered the U nited States under the V W P, he failed to disclose

his criminal record on his Form I-94W . The director concluded that this failure

amounted to a willful misrepresentation of a material fact pursuant to 8 U.S.C. §

1182(a)(6)(C )(i). 10 Lastly, the director ruled that notwithstanding these two

8
The applicable regulations provide that an applicant for adjustment of
status “shall be notified of the decision of the director, and, if the application is
denied, the reasons for the denial.” 8 C.F.R. § 245.2(a)(5)(i).
9
That section provides that, except as otherwise provided, an alien who is
convicted of “a crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime” is ineligible to
receive visas and ineligible to be admitted to the United States. 8 U.S.C. §
1182(a)(2)(A)(i)(I). Further, the regulations provide that no waiver of
inadmissibility shall be granted “in the case of an alien who has been convicted of
(or w ho has admitted committing acts that constitute) murder or criminal acts
involving torture, or an attempt or conspiracy to comm it murder or a criminal act
involving torture.” Id. § 1182(h)(2).
10
That section provides that an “alien, who by fraud or w illfully
misrepresenting a material fact, seeks to procure (or has sought to procure or has
(continued...)

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grounds, Ferry’s application was denied based on an exercise of discretion. The

director stated that Ferry’s w ife and new child were the only factors w eighing in

favor of his application, and that those factors were significantly outweighed by

Ferry’s prior criminal record and his misrepresentation about that record at the

time he entered the United States. The director informed Ferry that no appeal was

available from the decision. 11

Notwithstanding the DHS’s denial of Ferry’s application for adjustment of

status, Ferry continued to assert his right to adjust his status, and thereby obtain

relief from the D H S’s administrative order of removal and release from DHS

custody. Relevant to these consolidated appeals, Ferry was referred to the

immigration court for asylum-only proceedings, Case No. 04-9555; Ferry filed a

petition for habeas corpus in federal district court, Case No. 05-1014; and Ferry

filed a petition for review in this court of the D HS district director’s

10
(...continued)
procured) a visa, other documentation, or admission into the United States or
other benefit provided under this Act is inadmissible.” 8 U.S.C. §
1182(a)(6)(C)(i).
11
Although Ferry argues otherwise, he has not filed a judicial action seeking
review of the DHS’s denial of his application for adjustment of status. At most,
he filed challenges to the DHS’s refusal to adjudicate and render a decision upon
his adjustment of status application. Thus, we have no opportunity to consider, as
a threshold matter, whether jurisdiction exists to review Ferry’s argument that the
DHS’s denial of his application for adjustment of status was arbitrary and
capricious. See 8 C.F.R. § 1245.2(a)(5)(ii) (providing that “[n]o appeal lies from
the denial of an application [for adjustment of status] by the director,” but that the
applicant may renew the application in removal proceedings).

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administrative order of removal, Case No. 03-9526.

A. Case No. 04-9555

On November 4, 2003, an IJ denied Ferry’s applications for asylum,

withholding of removal, and relief under CAT. Admin. R. at 187-200. At the

outset, the IJ observed that Ferry was referred to the Immigration Court in

February 2003 for asylum-only proceedings, and that asylum-only hearings were

not removal proceedings under 8 U.S.C. § 1229a. Id. 12 Further, the IJ explained

that under 8 C.F.R. § 1208.2(c)(1)(iv), 13 an alien such as Ferry who was admitted

to the United States pursuant to the VW P and has remained longer than authorized

is not entitled to removal proceedings under 8 U.S.C. § 1229a. Id. As a result,

the IJ concluded that he did not have authority to review Ferry’s application for

adjustment of status:

Respondent has . . . applied for adjustment of status under section
245 [8 U.S.C. § 1255] of the Immigration and Nationality Act. The
record shows this application was denied by the Department on M ay
21, 2003. Although immigration judges may consider such
applications, it is only in the context of removal proceedings under
section 240 of the Act [8 U.S.C. § 1229a]. Respondent is not in
removal proceedings. Accordingly, I do not have the authority to
review this application. . . . There is no provision which allows for

12
Section 1229a, entitled “Removal proceedings,” sets forth the procedures
an immigration judge must follow in adjudicating an alien’s removability.
13
That regulation classifies an alien who was admitted under the VW P and
has remained longer than authorized as an alien “not entitled to [removal]
proceedings under section 240 of the Act [8 U.S.C. § 1229a].” 8 C.F.R. §
1208.2(c)(1)(iv).

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 consideration of an application for adjustment of status in asylum-
only proceedings.

Id. at A10.

Next, the IJ concluded that Ferry was statutorily barred from asylum and

withholding of removal because of his prior conviction for a particularly serious

crime in Northern Ireland and his prior engagement in terrorist activity through

his membership in the IRA. Id. at A21-22. Additionally, the IJ concluded that

Ferry’s asylum application was barred because it was untimely, and Ferry had

failed to demonstrate any changed or extraordinary circumstances justifying the

delay. Id. The IJ stated that Ferry’s proffered excuse for his delay–that he relied

on his pending application for adjustment of status–was not recognized by law.

Id.

Lastly, the IJ denied Ferry relief under CAT. The IJ found that Ferry was

treated humanely at Long K esh and cited Ferry’s admission that Long Kesh

provided more privileges and better conditions than the Denver County Jail. The

IJ also determined that Ferry could avoid any problems he might face in N orthern

Ireland by relocating to another country, citing Ferry’s citizenship to both the

Republic of Ireland and the U nited Kingdom. Id. Ferry appealed the IJ’s

decision to the BIA .

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 On M ay 6, 2004, the BIA affirmed the IJ’s decision. Id. at 2-5. First, the

BIA agreed that the IJ lacked jurisdiction over Ferry’s application for adjustment

of status:

The regulation at 8 C.F.R. § 1208.2(c)(3)(i) specifically provides that
in asylum only proceedings, the Immigration Judge may only
consider whether the alien is eligible for asylum, withholding or
deferral of removal, and whether the alien merits asylum in the
exercise of discretion. The regulation further prohibits parties to
asylum only proceedings from raising or considering any other
issues, including but not limited to issues of admissibility,
deportability, eligibility for waivers, and eligibility for any form of
relief.

App. at A34.

Second, the BIA affirmed the IJ’s denial of Ferry’s application for asylum

and withholding of removal. The BIA agreed that Ferry untimely submitted his

asylum application. In particular, the BIA ruled that Ferry’s allegations of

wrongdoing concerning the DHS’s adjudication and denial of his adjustment of

status application failed to establish changed or exceptional circumstances to

excuse his delay in filing for asylum. The BIA also concluded that Ferry was

statutorily ineligible for withholding of removal because of his prior conviction

for a serious crime.

Finally, the BIA determined that Ferry was not entitled to relief under

CAT. The BIA reasoned that Ferry had failed to establish that the harm that he

feared–torture or death resulting from his placement on a death list–would be

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instigated by or with the consent or acquiescence of the United Kingdom. Id. at

35-36. The BIA explained that the United Kingdom’s conduct had demonstrated

its efforts to protect individuals placed on death lists. Id. at 36.

B. Case No. 05-1014

On April 7, 2003, Ferry filed a petition for a writ of habeas corpus in the

United States D istrict Court for the D istrict of Colorado, challenging the D HS’s

issuance of an administrative order of removal and his continued detention by

federal immigration authorities. App. at A46-A60. He also filed a writ of

mandamus and a motion for an emergency temporary restraining order. That

same day, the district court denied Ferry’s motion for an emergency temporary

restraining order.

On November 8, 2004, the district court denied Ferry’s petition for a writ

of habeas corpus and petition for a w rit of mandamus. First, the district court

ruled on Ferry’s argument that his statutory rights were denied because

immigration officials had failed to adjudicate his adjustment of status application.

The district court ruled that this claim was moot because the DHS denied his

application for adjustment of status on M ay 21, 2003. The district court also

concluded that Ferry’s request for adjustment of status did not preclude his

removal under the VW P. Next, the district court addressed Ferry’s claims that

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immigration officials violated his due process rights by failing to adjudicate his

adjustment of status application and by denying him a right to release on bond or

to have a bond hearing. The district court concluded that because Ferry was

admitted under the VW P, he had waived any constitutional challenge to his

detention and removal. The district court also stated that because Ferry waived

his rights under the VW P, he had no right to be released on bond or to have a

bond hearing.

C. Case No. 03-9526

On M arch 3, 2003, Ferry filed a petition for review of the DHS district

director’s January 31, 2003, administrative order of removal. Admin. R. at 2463-

85. In addition to challenging the D HS district director’s removal order, Ferry

raised arguments contesting the DHS’s refusal to adjudicate his adjustment of

status application, the IJ’s refusal to consider his application for adjustment of

status based on jurisdictional grounds, and the IJ’s refusal to consider his request

to be released without bond.

II. D ISC USSIO N

A. Case No. 04-9555: Appeal of BIA’s M ay 6, 2004 Decision

Ferry petitions for review of the BIA’s determination that the IJ lacked

jurisdiction to consider his adjustment of status application, and the B IA’s

affirmance of the IJ’s denial of his application for asylum and for relief under

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CAT. 14 W e have jurisdiction to review the BIA ’s decision pursuant to 8 U.S.C. §

1252(a)(1). See Kanacevic v. INS, 448 F.3d 129, 133-34 (2d Cir. 2006) (holding

that jurisdiction existed under 8 U.S.C. § 1252(a)(1) to review the BIA’s denial of

asylum for a VW P alien in asylum-only proceedings); Nreka v. United States

Attorney Gen., 408 F.3d 1361, 1366-68 & n.8 (11th Cir. 2005) (holding that

jurisdiction existed under 8 U.S.C. § 1252(a)(1) to review the BIA’s denial of

asylum, withholding of removal, and relief under CAT for a VW P alien in

asylum-only proceedings); Itaeva v. INS, 314 F.3d 1238, 1241 (10th Cir. 2003)

(concluding that jurisdiction existed under the Illegal Immigration Reform and

Immigrant Responsibility Act’s transitional rules, 8 U.S.C. § 1105a, to review the

portion of the BIA’s final order which held that the petitioner, a V W P alien, could

not apply for suspension of deportation).

1. IJ’s Jurisdiction to Consider Ferry’s Adjustment of Status Application

Ferry challenges the BIA’s conclusion that the IJ lacked jurisdiction to

consider his adjustment of status application. Specifically, Ferry argues that he

was denied his statutory right, as a VW P alien with an approved Form I-130

immediate relative petition, to renew or otherwise seek review of his application

for adjustment of status. He also contends that due process of law entitled him to

a removal hearing in order to obtain review of his application for adjustment of

14
W e do not address the denial of Ferry’s application for withholding of
removal because Ferry has not raised the claim on appeal.

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status.

W e review the BIA’s legal determinations de novo. Elzour v. Ashcroft,

378 F.3d 1143, 1150 (10th Cir. 2004). W e also review constitutional challenges

to an immigration statute de novo. Jurado-Gutierrez v. Greene, 190 F.3d 1135,

1152 (10th Cir. 1999).

The V W P’s expedited procedure for entry into the United States furthers

Congress’ purposes of “promoting better relations with friendly nations,

eliminating unnecessary barriers to travel, stimulating the travel industry, and

alleviating vast amounts of paperwork . . . .” Handa v. Clark, 401 F.3d 1129,

1135 (9th Cir. 2005) (citation omitted). But to prevent an alien from abusing the

VW P, Congress required a VW P applicant to sign a waiver of rights to “assure[]

that . . . [the alien] will leave on time and will not raise a host of legal and factual

claims to impede his removal if he overstays.” Id. That waiver of rights, which

Ferry signed, waives “any right . . . 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)(2). Here, Ferry argues that he does not seek to “contest” the DHS district

director’s removal order. Instead, Ferry maintains that he wants to “cure” the

order of removal through his statutory right to an adjustment of status. Ferry’s

argument is merely semantic, and is without support under the applicable statutes

and regulations, or the law of this circuit.

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 The A ttorney General may adjust an alien’s status:

in his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if (1) the
alien makes an application for such adjustment, (2) the alien is
eligible to receive an immigrant visa and is admissible to the United
States for permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). A VW P alien who is an immediate relative of a United

States citizen is expressly eligible to apply for an adjustment of status under §

1255(a). See 8 U.S.C. § 1255(c)(4); 8 C.F.R. § 245.1(b)(8). Ferry suggests that

Congress, through 8 U.S.C. § 1255(c)(4), provided certain VW P aliens a remedy

to removal falling outside of § 1187(b)(2)’s waiver provision. Our recent

decision in Schmitt v. M aurer, 451 F.3d 1092, 1096-97 (10th Cir. 2006),

however, squarely rejected the same argument Ferry makes now, i.e., that the

statutory provision allowing a VW P alien to apply for adjustment of status

trumps the VW P’s waiver provision under 8 U.S.C. § 1187(b)(2).

The petitioner in Schmitt filed an adjustment of status application after he

was ordered removed for staying in the United States beyond his authorized time

under the VW P. Id. at 1093-94. W e recognized that although a VW P alien may

be eligible to apply for adjustment of status, the applicable regulations clarified

that “an alien’s ability to apply for adjustment of status does not entitle the alien

to administrative proceedings which would not otherwise [have] been provided.”

Id. at 1096 (citing 8 C.F.R. § 1245.2(a)(5)(ii)). W e also observed that any

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conflict between the statutory provision permitting a VW P alien to apply for

adjustment of status and the VW P’s waiver provision was created by the

petitioner’s decision to file an application for adjustment of status after he had

already overstayed his visa and had been ordered removed. Id. at 1097.

Accordingly, we reaffirmed that an alien admitted under the VW P “cannot apply

for any form of relief from deportation, including adjustment of status, other than

through an application for asylum.” Id. at 1096; see Itaeva, 314 F.3d at 1242

(holding that the VW P alien’s request for suspension of deportation was barred

under 8 U.S.C. § 1187(b)(2)).

Like the petitioner in Schmitt, Ferry failed to apply for adjustment of

status during his authorized time in the United States. But in contrast to the

petitioner in Schmitt, Ferry filed his application for adjustment of status before

the DHS issued a removal order and referred him to asylum-only proceedings.

Nevertheless, we conclude that Ferry’s attempt to refile his adjustment of status

application before the immigration judge, or to otherwise obtain review of the

DHS district director’s denial of his adjustment application, fares no better than

the petitioner’s adjustment of status application in Schmitt. 15

15
W e observe that the Ninth Circuit recently held that “once a VW P entrant
[properly] files an adjustment of status application as an immediate relative, as
contemplated by 8 U.S.C. § 1255(c)(4), the alien is entitled to the procedural
guarantees of the adjustment of status regime . . . , and is no longer subject to the
Visa W aiver Program’s no-contest clause.” Freeman v. Gonzales, 444 F.3d 1031,
(continued...)

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 To be sure, 8 C.F.R. § 1245.2(a)(5)(ii) provides that an alien may not

appeal from the DHS district director’s denial of an application for adjustment of

status. The regulation states that the alien instead “retains the right to renew his

or her application in [removal] proceedings under 8 CFR part 240.” Id. Ferry’s

apparent right to renew his application for adjustment of status in removal

proceedings, however, is eliminated by the last sentence in 8 C.F.R. §

1245.2(a)(5)(ii): “N othing in this section shall entitle an alien to [removal]

proceedings under section 240 of the Act [8 U.S.C. § 1229a] who is not

otherwise so entitled.” Id. Indeed, the regulations classify an alien who was

admitted to the VW P and has overstayed his visa as an “alien[] not entitled to

[removal] proceedings under section 240 of the Act [8 U.S.C. 1229a].” 8 C.F.R.

§ 1208.2(c)(1)(iv); see also 8 U.S.C. § 1229a(a)(3) (“Unless otherwise specified

in this Act, a [removal] proceeding under this section shall be the sole and

exclusive procedure for determining whether an alien may be . . . removed from

15
(...continued)
1033-34 (9th Cir. 2006). W e believe that Freeman is distinguishable on its facts
from our present case. Unlike Ferry and the petitioner in Schmitt, M rs. Freeman
filed her application for adjustment of status before her ninety-day VW P visa
expired. Id. at 1032-33 (emphasis added). As we stated in Schmitt, “[d]uring the
first 90 days during which an alien is lawfully present in the United States under
the Visa W aiver Program, the alien may apply for adjustment of status without
any conflict arising between the two statutes [governing adjustment of status and
the VW P w aiver provision]. 451 F.3d at 1097. If we misinterpret Freeman and
the decision is not limited to adjustment of status applications filed before the
expiration of the alien’s V W P visa, then we respectfully disagree with the Ninth
Circuit’s conclusion.

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the United States.”) (emphasis added); Handa, 401 F.3d at 1134 (stating that “§

1187(b) does appear to otherwise specify”). Further, the regulations state that

the scope of review in proceedings conducted under 8 C.F.R. § 1208.2(c)(1)

“shall be limited to a determination of whether the alien is eligible for asylum or

withholding or deferral of removal, and whether asylum shall be granted in the

exercise of discretion.” 8 C.F.R. § 1208.2(c)(3)(i); see also 8 C.F.R. §

217.4(b)(1) (providing that the removal of an alien admitted under the VW P

“shall be effected w ithout referral of the alien to an immigration judge for a

determination of deportability, except . . . [for] an alien who applies for asylum

in the United States”).

It is evident under the applicable statutes and regulations that a VW P

alien who overstays his authorized time and is ordered removed has w aived his

right to contest that removal through an application for adjustment of status. See

Schmitt, 451 F.3d at 1096-97. Further, we hold that an alien who overstays his

authorized time under the VW P and files for an adjustment of status after he has

overstayed, but before the issuance of a removal order, has w aived his right to

contest a subsequent removal order through a renewed application for adjustment

of status, or to otherw ise seek review of the previously filed adjustment of status.

To conclude otherwise would frustrate Congress’ intent in establishing the VW P,

and would be contrary to the statutes and regulations governing an alien’s right

to an adjustment of status. Id. at 1097. Accordingly, the BIA properly

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concluded that the IJ was without jurisdiction to consider Ferry’s eligibility for

adjustment of status after he was ordered removed and referred to asylum-only

proceedings.

Similarly, we reject Ferry’s claim that due process of law entitled him to a

hearing before an immigration judge for consideration of his adjustment of status

application. 16 The Fifth Amendment’s guarantee of due process of law is

applicable to aliens in removal proceedings. Reno v. Flores, 507 U.S. 292, 306

(1993) (citation omitted); see Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292 (10th

Cir. 2001) (stating that “[w]hen facing deportation . . . aliens are entitled to

procedural due process, which provides an opportunity to be heard at a

meaningful time and in a meaningful manner”) (internal quotations and citations

omitted). Even so, an alien’s due process rights are subject to w aiver. See N ose

v. Attorney Gen., 993 F.2d 75, 78-79 (5th Cir. 1993) (concluding that the

plaintiff, an alien visitor under the VW P, knowingly and voluntarily waived her

right to a hearing before an immigration judge). On appeal, Ferry does not

16
To the extent Ferry also mounts an equal protection challenge to the VW P,
we conclude that such a claim does not survive a rational basis analysis. See
M cGuire v. U.S. Immigration and Naturalization Serv., Dist. Director, 804 F.
Supp. 1229, 1234 (N.D. Cal. 1992) (concluding that Congress’ goal to reduce the
administrative burdens associated with the visa requirement, along with the
potential for abuse of the VW P program, provided a rational basis for requiring an
alien to waive his rights to contest removal based on a violation of the terms of
his stay).

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dispute that his V WP w aiver w as knowing and voluntary. Additionally, we

observe that the Seventh Circuit has rejected a similar due process challenge to

the VW P. In W igglesworth v. INS, the Seventh Circuit concluded, in relevant

part, that the alien’s due process rights were not violated based on “the fact that

she was not afforded the opportunity to present, or receive a determination

concerning, her application for discretionary relief.” 319 F.3d 951, 959-60 (7th

Cir. 2003). The Seventh Circuit stated that the VW P alien “not only waived her

right to a deportation hearing, she also waived any rights that she had to apply

for non-asylum forms of relief from deportation.” Id. at 960 (citations omitted).

W e therefore conclude that Ferry has not shown the prejudice necessary to

establish a due process violation. W igglesworth, 319 F.3d at 960; M ichelson v.

INS, 897 F.2d 465, 468 (10th Cir. 1990). By signing the V W P waiver, Ferry

received all of the due process to which he w as entitled. Ferry was referred for a

hearing before an immigration judge on his applications for asylum, withholding

of removal, and for relief under CAT. He relinquished his rights to all other

forms of relief.

2. Asylum

Ferry’s opening brief does not challenge the BIA’s denial of his asylum

application. See Aplt. Br. at 19 (“Petitioner Ciaran Ferry does not seek herein to

reassert his asylum claim, but rather confines his argument on appeal to his due

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process claims flowing from his right to adjustment of status as a spouse of a

United States Citizen.”). Ferry’s reply brief, however, argues that the Real ID

Act 17 grants us jurisdiction to review the BIA’s determination that he failed to

demonstrate changed or extraordinary circumstances to excuse the untimely

filing of his asylum application. Aplt. Reply Br. at 24. Specifically, Ferry

contends that his failure to file his application for asylum within one year of his

arrival in the United States w as excusable because he reasonably relied on his

pending application for adjustment of status. Ordinarily, we do not review

arguments raised for the first time in a reply brief. Stump v. Gates, 211 F.3d

527, 533 (10th Cir. 2000) (citation omitted). But we w ill address Ferry’s

argument because he filed his opening brief several months before Congress’

passage of the Real ID Act.

An alien must establish “by clear and convincing evidence that the

[asylum] application has been filed within 1 year after the date of the alien’s

arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). Notwithstanding this

one year time limit, an alien’s asylum application “may be considered . . . if the

alien demonstrates to the satisfaction of the Attorney General either the existence

of changed circumstances which materially affect the applicant’s eligibility for

asylum or extraordinary circumstances relating to the delay in filing . . . .” §

17
Real ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302, codified on
M ay 11, 2005.

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1158(a)(2)(D). The statute further provides that “[n]o court shall have

jurisdiction to review any determination of the Attorney General under [8 U.S.C.

§ 1158(a)(2)].” § 1158(a)(3). B efore the enactment of the Real ID Act, we

interpreted § 1158(a)(3) to deprive us of jurisdiction to review the timeliness of

an application for asylum, or to review a determination as to whether changed or

extraordinary circumstances exist to excuse an untimely filing. Tsevegmid v.

Ashcroft, 318 F.3d 1226, 1229-30 (10th Cir. 2003).

W ith Congress’ passage of the Real ID Act, we now have jurisdiction to

review constitutional claims and questions of law , 18 U.S.C. § 1252(a)(2)(D),

but “challenges directed solely at the agency’s discretionary and factual

determinations remain outside the scope of judicial review.” Diallo v. Gonzales,

447 F.3d 1274, 1281 (10th Cir. 2006) (citing Chen v. U.S. Dep’t of Justice, 434

F.3d 144, 154 (2d Cir. 2006)). Ferry’s argument that his pending adjustment of

status application qualified as either a changed or extraordinary circumstance to

excuse his untimely asylum application is a challenge to an exercise of discretion

that remains outside our scope of review. See Sukwanputra v. Gonzales, 434

F.3d 627, 635 (3rd Cir. 2006) (holding that “despite the changes of the REAL ID

Act, 8 U.S.C. § 1158(a)(3) continues to divest the court of appeals of jurisdiction

to review a decision regarding whether an alien established changed or

extraordinary circumstances that would excuse his untimely filing”); Ignatova v.

Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (same); Ramadan v. Gonzales,

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427 F.3d 1218, 1222 (9th Cir. 2005) (same); Chacon-Botero v. United States

Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (same); Vasile v. Gonzales,

417 F.3d 766, 768-69 (7th C ir. 2005) (same). Accordingly, we conclude that we

lack jurisdiction to consider the BIA’s denial of Ferry’s untimely application for

asylum.

3. Convention Against Torture

Ferry seeks review of the BIA’s conclusion that he did not qualify for

relief under CAT. W e review the BIA’s factual findings under the substantial

evidence standard. Rivera-Jimenez v. INS, 214 F.3d 1213, 1216 (10th Cir.

2000). The BIA’s findings of fact are conclusive unless the record demonstrates

that “any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B). Our role is not to re-weigh the evidence or

to evaluate the credibility of witnesses. Refahiyat v. INS, 29 F.3d 553, 556 (10th

Cir. 1994).

In order for Ferry to prevail under CAT, he must establish that it is more

likely than not that he would be tortured if he returned to the United Kingdom.

Sviridov v. Ashcroft, 358 F.3d 722, 729 (10th Cir. 2004); see 8 C.F.R. §

1208.16(c)(2). Under CAT, “torture” is defined as:

[A]ny act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third

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 person has committed or is suspected of having comm itted, or
intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.

8 C.F.R. § 1208.18(a)(1) (emphasis added); see also 8 C.F.R. § 1208.18(a)(7)

(“Acquiescence of a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach

his or her legal responsibility to intervene to prevent such activity.”); Cruz-Funez

v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (explaining that actual

knowledge or willful acceptance is not required to prove a government official’s

“acquiescence” to torture, and that willful blindness is sufficient).

The BIA concluded that Ferry failed to establish that torture would be

instigated by, or with the consent or acquiescence of, the U nited Kingdom’s

government. Specifically, the BIA stated that the conduct of the United Kingdom

indicated that the government had attempted to protect individuals included on the

death lists of Northern Irish loyalist paramilitary groups. In support, the B IA

cited Ferry’s own testimony that the United Kingdom informed Ferry and his

father of Ferry’s inclusion on a death list, and that the United Kingdom had

provided Ferry a security grant, the proceeds of which Ferry and his father used

to reinforce the front door of their home. Based on the administrative record, we

agree with the BIA’s determination that Ferry failed to show the requisite

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government acquiescence to support a likelihood of torture if he returned to the

United Kingdom. Ferry’s testimony provides direct evidence of the United

Kingdom’s efforts to provide him information and financial assistance to prevent

torture. Ferry’s citation to the record to show collusion between the United

Kingdom and loyalist paramilitary groups is cursory at best.

B. Case No. 05-1014: Appeal of District Court’s Denial of Habeas Relief

Ferry appeals the district court’s decision denying his petition for a writ of

habeas corpus under 28 U.S.C. § 2241. In particular, Ferry challenges the D HS’s

issuance of a removal order without a hearing on his adjustment of status

application, and his detention by the DHS w ithout bond or a bond hearing.

At the outset, we must address the impact of the R eal ID Act on Ferry’s

appeal of the district court’s denial of his habeas corpus petition. Under the Real

ID Act, petitions for review filed with the court of appeals are “the sole and

exclusive means” of review of most administrative orders of removal, deportation,

or exclusion. 8 U.S.C. § 1252(a)(5). Thus, the Real ID Act eliminates a district

court’s jurisdiction over habeas petitions challenging final orders of removal.

However, the Real ID Act did not eliminate a district court’s jurisdiction to

review habeas petitions challenging an alien’s detention. See, e.g., Bonhometre

v. Gonzales, 414 F.3d 442, 445-46 (3d Cir. 2005). Here, Ferry filed a mixed

habeas petition, challenging the DHS’s administrative order of removal under the

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VW P, as well as the DHS’s continued detention without bond or without

providing a bond hearing.

The district court lacked jurisdiction to consider Ferry’s petition insofar as

it challenged the DHS’s administrative order of removal. As a result, we must

vacate the portion of the district court’s decision pertaining to Ferry’s challenges

to the DHS’s administrative order of removal and convert that part of Ferry’s

habeas petition into a petition for review. See Schmitt, 451 F.3d at 1094-95

(holding that habeas petitions that were pending before a court of appeals before

the effective date of the Real ID Act, such as Ferry’s, must be converted into

petitions for review and retained by the court of appeals under 8 U.S.C. §

1252(a)) (citing Bonhometre, 414 F.3d at 446). On the other hand, the district

court properly exercised jurisdiction over Ferry’s challenges to his detention. W e

exercise jurisdiction over that portion of the district court’s decision pursuant to

28 U.S.C. § 1291, and review Ferry’s claims de novo. Broomes v. Ashcroft, 358

F.3d 1251, 1255 (10th Cir. 2004) (citation omitted) (reviewing the district court’s

dismissal of a § 2241 habeas petition de novo).

Ferry’s challenges to the DHS district director’s administrative order of

removal are w ithout merit. As with Ferry’s petition for review of the BIA’s

decision, Ferry generally contends that the D HS’s district director’s

administrative order of removal was improper in light of his due process and

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statutory rights to an adjudication of his application for adjustment of status. W e

reject these arguments for the reasons stated in Part II.A.1. of this opinion.

Next, Ferry argues that the DHS violated his due process rights when, after

his arrest on January 30, 2003, it denied him an individualized hearing so that he

could challenge the legality of his detention and obtain a release from custody on

bond. Ferry’s challenge to the legality of his detention without an opportunity for

bond or a bond hearing is moot. Ferry’s administrative removal order has been

executed, and thus, Ferry is no longer in the custody of the DHS to benefit from a

bond determination or release. See, e.g., Soliman v. United States, 296 F.3d

1237, 1243 (11th Cir. 2002); Ortez v. Chandler, 845 F.2d 573, 575 (5th Cir.

1988). Ferry asserts that we cannot dismiss his petition as moot because

secondary or collateral consequences survive his deportation. Riley v. INS, 310

F.3d 1253, 1257 (10th Cir. 2002). First, Ferry states that he will no longer be

able to return to his family in the United States. But Ferry’s inability to return to

the United States is a continuing injury that stems from his removal order, not his

detention. So v. Reno, 251 F. Supp. 2d 1112, 1124 (E.D.N.Y. 2003). Ferry also

claims that, as a result of his detention without bond, he lost two years of his

liberty and the consortium of his family. W e note, however, that at oral argument

Ferry’s counsel confirmed that Ferry does not seek monetary damages for loss of

liberty or consortium. Rather, his counsel agreed that, in essence, Ferry seeks a

declaratory judgment that he was entitled to a bond hearing. It is well established

-29-
that “‘[t]he judicial inhibition against deciding moot questions is . . . not limited

to the field of declaratory judgments.’” M iller v. Udall, 368 F.2d 548, 548 (10th

Cir. 1966) (citation omitted). W e decline to issue an advisory opinion regarding

Ferry’s entitlement to a bond hearing because a declaratory judgment on that

question would have no meaningful effect on the DHS’s future conduct towards

Ferry. Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1266

(10th Cir. 2004).

C. Case No. 03-9526: Petition for Review of DHS’s Removal Order

On M arch 3, 2003, Ferry filed a petition for review of the DHS district

director’s January 31, 2003, administrative order of removal. Admin. R. at 2463-

85. W e have jurisdiction to review the DHS district director’s administrative

order of removal pursuant to 8 U.S.C. § 1252(a). See Schmitt, 451 F.3d at 1095

(reviewing challenge to district director’s issuance of a removal order under the

VW P). Notably, Ferry does not dispute that he overstayed his authorized time

under the VW P, or that his waiver was knowing and voluntary. Ferry instead

asserts that he w as denied the opportunity for review of the district director’s

decision in an administrative proceeding. This argument is without merit. See

Handa, 401 F.3d at 1133 (“W e do agree that when Handa signed the waiver, he

gave up the possibility of other forms of relief, as well as the opportunity to

challenge the m erits of a removal decision arising out of his VWP entry.”)

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(emphasis added). Ferry also argues that the district director improperly ordered

him removed from the United States because, prior to the issuance of the removal

order, he had exercised his statutory right to file an application for adjustment of

status. For the reasons previously stated in Part II.A.1. of this opinion, we

conclude that Ferry was not entitled to contest the DHS’s removal order through a

renewed application for adjustment of status, or to otherwise obtain review of the

DHS’s denial of his application.

Ferry’s petition for review also challenges the DHS’s refusal to adjudicate

his adjustment of status application, the IJ’s refusal to consider his application for

adjustment of status based on jurisdictional grounds, and the IJ’s refusal to

consider his request to be released w ithout bond. W e quickly dispose of these

remaining claims. Ferry’s argument that the DHS refused to render a decision on

his adjustment of status application is moot based on the D HS district director’s

M ay 21, 2003, denial of Ferry’s application for adjustment of status. Ferry’s

argument that he was entitled to have the IJ review his adjustment of status

application is denied for the reasons stated in Part II.A.1. of this opinion. Lastly,

Ferry’s claim that the IJ should have considered his request for a bond

determination is moot because, as stated in Part II.B. of this opinion, we are

unable to provide Ferry any meaningful relief because he has since been deported.

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III. CON CLU SIO N

Ferry’s petitions for review in Case Nos. 03-9526 and 04-9555 are

DENIED. As to Ferry’s appeal of the district court’s denial of a writ of habeas

corpus, Case No. 05-1014, we V ACATE the portion of the district court’s

decision pertaining to Ferry’s challenge to his administrative order of removal,

convert that portion of Ferry’s petition for writ of habeas corpus into a petition

for review, and DENY his petition for review. W e AFFIRM the portion of the

district court’s decision denying Ferry’s challenge to his detention.

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