FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER JAMES BINGHAM,
Petitioner, No. 09-70107
v.
Agency No.
A095-760-810
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Department of Homeland Security
Argued and Submitted
November 4, 2010—San Francisco, California
Filed March 23, 2011
Before: Ronald M. Gould and Consuelo M. Callahan,
Circuit Judges, and Edward R. Korman,
Senior District Judge.*
Opinion by Judge Gould
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
3949
3952 BINGHAM v. HOLDER
COUNSEL
Jaime Jasso, Law Offices of Jaime Jasso, Westlake Village,
California, for the petitioner.
Tony West, Assistant Attorney General, Richard M. Evans,
Assistant Director, and Brooke Maurer, Attorney (argued),
Office of Immigration Litigation, United States Department of
Justice, Washington, D.C., for the respondent.
OPINION
GOULD, Circuit Judge:
Petitioner Peter James Bingham petitions for review of an
order of removal issued by the Department of Homeland
Security (“DHS”). He contends that the enforcement of a
written waiver of rights associated with his entry into the
United States through the Visa Waiver Program and the sum-
mary issuance of an order of removal without a hearing vio-
late his due process rights. We have jurisdiction under 8
U.S.C. § 1252(a). We deny the petition for review.
BINGHAM v. HOLDER 3953
I
Bingham is a citizen of the United Kingdom. He was
admitted to the United States on March 11, 2007 under the
terms of the Visa Waiver Program. The Visa Waiver Program
(“VWP”), first implemented as a pilot program in 1986,
authorizes the Attorney General and Secretary of State to
waive the visa requirements for entry to the United States for
aliens that are nationals of certain designated countries, and
who meet a series of statutory requirements. 8 U.S.C. § 1187.
These VWP entrants may be admitted to the United States as
tourists for a period of ninety days. § 1187(a)(1). In exchange
for this benefit, aliens seeking admission to the United States
without first obtaining a visa must waive their right “to review
or appeal under this chapter of an immigration officer’s deter-
mination as to the admissibility of the alien at the port of entry
into the United States” and “to contest, other than on the basis
of an application for asylum, any action for removal of the
alien.” § 1187(b). A VWP entrant’s removability “shall be
determined by the district director who has jurisdiction over
the place where the alien is found, and shall be effected with-
out referral of the alien to an immigration judge for a determi-
nation of deportability” unless the alien applies for asylum. 8
C.F.R. § 217.4(b). We have described the waiver provision as
“the linchpin of the program,” in that it “assures that a person
who comes here with a VWP visa will leave on time and will
not raise a host of legal and factual claims to impede his
removal if he overstays.” Handa v. Clark, 401 F.3d 1129,
1135 (9th Cir. 2005).
Under the terms of the VWP, Bingham was admitted for a
period of ninety days,1 but he overstayed that term by more
than a year. On December 5, 2008, Bingham was stopped by
1
DHS documents and the government’s brief state that Bingham was
entitled to remain in the United States until September 11, 2007. However,
that would amount to a period of 180 days from entry, not 90 days. In any
case, the parties agree that Bingham overstayed the authorized period.
3954 BINGHAM v. HOLDER
a police officer and arrested for presenting false citizenship or
resident alien documents under California law. Bingham was
not charged with an offense, but was released to the custody
of immigration authorities. Bingham has remained in immi-
gration detention since then. On December 12, 2008, the
Department of Homeland Security ordered Bingham removed
without issuing a Notice to Appear or holding a removal hear-
ing. Rather, DHS officials determined that Bingham was
removable as an alien admitted under the VWP who had
remained in the United States beyond the authorized period
and ordered him removed.
Bingham timely filed a petition for review of the order of
removal. The government submitted the administrative record
for the appeal on November 27, 2009, after an extension of
time to do so. The administrative record did not contain a
copy of the actual waiver, the I-94W Nonimmigrant Visa
Waiver Arrival/Departure Form (Form I-94W), signed by
Bingham. However, shortly before oral argument, the govern-
ment successfully moved to supplement the administrative
record with the signed waiver form. Bingham moved to
reconsider the grant of leave to supplement the record, argu-
ing that he should be permitted to respond in writing on the
significance of the document, because his principal arguments
on appeal related to the nonexistence of the signed waiver.
Following oral argument, we permitted supplemental briefing
from both parties on the significance of the signed waiver
form to the issues raised in this petition for review.
II
[1] We first address whether we have jurisdiction to enter-
tain the questions raised in the petition for review. Bingham
contends that we have jurisdiction over final orders of
removal issued by DHS under § 1252(a)(1). The government
agrees that we have jurisdiction over Bingham’s removal
order but adds the caveat that because VWP entrants sign a
waiver of their right to contest removal (except through an
BINGHAM v. HOLDER 3955
application for asylum, for which Bingham has not applied),
the only question before us is whether Bingham waived those
rights. Section 1252 supports the parties’ assertions regarding
jurisdiction. Though a VWP entrant waives the right to con-
test removal except on the basis of asylum, § 1187(b)(2), a
VWP entrant can invoke § 1252(a) to challenge a final order
of removal on the basis that he or she is not at all subject to
the VWP regime.
[2] Several other courts of appeals similarly have deter-
mined that they have jurisdiction to review removal orders
issued by DHS where the VWP entrant challenges the validity
of the waiver. Bayo v. Napolitano, 593 F.3d 495, 500 (7th Cir.
2010) (en banc) (citing § 1252(a)(1) to establish its jurisdic-
tion over a petition for review from an administrative order of
removal against a VWP entrant); Bradley v. U.S. Attorney
General, 603 F.3d 235, 237 n.1 (3d Cir. 2010) (same); see
also McCarthy v. Mukasey, 555 F.3d 459 (5th Cir. 2009). Just
as did our sister circuits, we conclude that we have jurisdic-
tion to review the final order of removal issued by DHS
against a VWP entrant and may address the limited question
of whether Bingham has presented any viable claim that his
waiver was invalid and that he was summarily removed in
violation of his rights. See Freeman v. Gonzales, 444 F.3d
1031, 1034 (9th Cir. 2006) (“Notwithstanding that the no-
contest clause severely restricts an alien’s ability to seek
review of a removal decision, the alien may still claim that
she is not subject to the VWP procedures at all or that the law
requires that she be brought before an immigration judge . . .
prior to removal.”). With jurisdiction established, we proceed
to the merits.
III
Bingham makes several arguments seeking to support his
idea that the waiver of rights he signed on entry is invalid, and
to obtain the relief of a removal hearing before an immigra-
tion judge. In his opening brief, Bingham asserted that the
3956 BINGHAM v. HOLDER
government did not establish that the order of removal was
based on “clear and convincing evidence,” because the gov-
ernment had not produced a copy of the signed waiver of
rights, Form I-94W, for the administrative record. While this
appeal was pending, however, the government gained a copy
of the Form I-94W, signed by Bingham, and successfully
moved us to supplement the administrative record.2 We
allowed the parties to file supplemental briefing in light of the
record supplementation. Bingham’s claims premised on the
absence of the signed Form I-94W in the administrative
record now need not be addressed.
Bingham’s remaining arguments presented in his briefing
are: (1) the language of the Form I-94W waiver he signed at
the airport to gain admission was insufficient to inform him
of the rights he was waiving, (2) the waiver is unenforceable
under contract principles because Bingham did not know
about the waiver requirement until he landed in the United
States and received the form, and (3) the waiver violates the
unconstitutional conditions doctrine. These attempts to invali-
date the waiver on its face fail.
[3] First, Bingham’s allegation that the language of the
waiver form he signed on entry was insufficient to constitute
waiver of the right to a hearing before an immigration judge
is refuted by examination of the waiver language. The Form
I-94W signed by Bingham has this language:
WAIVER OF RIGHTS: I hereby waive any rights to
review or appeal of an immigration officer’s deter-
mination as to my admissibility, or to contest, other
2
Bingham’s motion to reconsider the grant of leave to supplement the
record is denied. The government relied upon a screen shot of the signed
Form I-94W in making its determination as to removability, but was
unable to locate the scanned version of the form until much later in these
proceedings. Expansion of the administrative record is appropriate under
these peculiar circumstances. See Fence Creek Cattle Co. v. U.S. Forest
Serv., 602 F.3d 1125, 1131 (9th Cir. 2010).
BINGHAM v. HOLDER 3957
than on the basis of an application for asylum, any
action in deportation.
Bingham first contends that the version of Form I-94W he
signed referred to “any action in deportation” rather than “any
action in removal” and does not reflect the statutory language
of § 1187(b). The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 merged what had been known as
deportation and exclusion hearings into a broader category
called removal proceedings. Hose v. INS, 180 F.3d 992, 994
n.1 (9th Cir. 1999) (en banc). The use of the term “deporta-
tion” instead of “removal” does not strip the waiver language
of its force and meaning. Although VWP entrants waive what
is now referred to as a “removal” hearing, the term “action in
deportation” adequately describes the hearing in which an
admitted alien is found to be “deportable” from the United
States for purposes of the waiver. See, e.g., 8 U.S.C.
§§ 1227(a), 1229a(e).
[4] Bingham complains further that the phrase “any action
in deportation” is imprecise because it does not distinguish
whether the alien is foregoing the opportunity to challenge the
finding of deportability only, or whether he is additionally
waiving the opportunity to contest his physical removal from
the United States, which in Bingham’s view implies the
chance to apply for forms of affirmative relief from removal.
We reject that there is ambiguity in the waiver provision. The
waiver tells the arriving alien that by signing the Form I-94W
he is waiving “any rights . . . to contest . . . any action in
deportation.” A deportation or removal “action” includes both
the finding of a statutory basis for removal and determinations
that resolve any issue of relief from removal. The waiver’s
use of the term “action in deportation” means that the alien
waives the opportunity to contest any issue that might be
raised in a removal proceeding. The express exception for an
application for asylum reinforces that the waiver language
encompasses applications for relief from removal.
3958 BINGHAM v. HOLDER
[5] Bingham next claims that the waiver is unenforceable
if analyzed under contract principles because, under the VWP
as implemented when he arrived, an alien does not receive the
waiver form and learn of the waiver requirement until he is
en route to the United States. He describes the kind of infor-
mation readily available to British citizens on the website of
the United States consulate in London3 at the time he made
travel arrangements, and asserts that the website did not pro-
vide crucial information about the waiver requirement. He
contends that under the common law of contracts, the waiver
would be considered unenforceable “under a host of forma-
tion defenses such as lacking the required bargained-for
exchange of consideration, mistake or simple unconsciona-
bility among others.” Yet as the Seventh Circuit commented
in Bayo, “[i]f the VWP waiver were a garden-variety con-
tract,” which Bingham presumes for purposes of this argu-
ment, any argument that the waiver was invalid because the
alien did not understand it would “almost certainly fail.”
Bayo, 593 F.3d at 502. This is because a party who signs a
written contract “in the absence of fraud or other wrongful act
on the part of another contracting party, is conclusively pre-
sumed to know its contents and to assent to them.” 27 Richard
A. Lord, Williston on Contracts § 70:113 (4th ed. 2009). As
Bingham has not alleged any fraud or wrongful act by the
government, his claim fails. Also, Bingham reaped the bene-
fits of the VWP by entering the country without a visa and,
under the contract principles he invokes, cannot now avoid
the consequences of the waiver by “claiming to have relied on
the representations of another as to its contents.” Id.
3
Bingham’s motion to take judicial notice of the former contents of the
consulate website and the websites of several air carriers is denied. The
content of particular websites on a specified date in 2007 is not “capable
of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” See Fed. R. Evid. 201. Moreover, even
if we were to take judicial notice of the sparsity of information in the web-
sites urged by Bingham, it would not alter our decision, because that
would not vitiate the contract signed by Bingham before entry, there being
no fraud or wrongful act of the government.
BINGHAM v. HOLDER 3959
[6] Finally, Bingham’s claim that the waiver violates the
unconstitutional conditions doctrine is without merit. The
unconstitutional conditions doctrine says that “even though a
person has no ‘right’ to a valuable governmental benefit and
even though the government may deny him the benefit for any
number of reasons, there are some reasons upon which the
government may not rely. It may not deny a benefit to a per-
son on a basis that infringes his constitutionally protected
interests.” Perry v. Sindermann, 408 U.S. 593, 597 (1972);
see also United States v. Scott, 450 F.3d 863, 866-67 (9th Cir.
2006). Bingham argues that the VWP impermissibly condi-
tions the privilege of being admitted to the United States on
a waiver of constitutional due process. Assuming without
deciding that VWP entrants enjoy constitutional due process
protections—a question of substantial debate between the
parties—the doctrine has no application in this context
because Bingham’s right to enter the United States was not
conditioned on a waiver of constitutional rights. He was free
to decline to waive his rights to contest removal and seek
entry by way of a tourist visa. Cf. Gilmore v. Gonzales, 435
F.3d 1125, 1139 (9th Cir. 2006). Also, the government may
condition the grant of a discretionary benefit on a waiver of
rights “if the condition is rationally related to the benefit con-
ferred.” United States v. Geophysical Corp. of Alaska, 732
F.2d 693, 700 (9th Cir. 1984); see also Dolan v. City of
Tigard, 512 U.S. 374, 386 (1994). The condition of waiving
the ability to contest removal is closely related to the benefit
of entering the United States under the VWP. Conditioning
entry on waiver—the exchange of a truncated entry procedure
for a truncated removal procedure—is the “linchpin” of the
program that allows it to operate, which courts nationwide
have repeatedly acknowledged and approved. See, e.g.,
Handa, 401 F.3d at 1135 (“[T]he linchpin of the program is
the waiver, which assures that a person who comes here with
a VWP visa will leave on time and will not raise a host of
legal and factual claims to impede his removal if he over-
stays.”).
3960 BINGHAM v. HOLDER
IV
To the extent Bingham’s arguments amount to an assertion
that he did not understand the waiver when signed and did not
waive his rights knowingly, these arguments are without
merit. Such a claim requires a threshold determination that a
VWP entrant waives constitutional due process rights to a
removal hearing—despite the fact that the waiver is made by
an alien at the border seeking entry—and therefore must be
knowing and voluntary to be effective. See Zadvydas v. Davis,
533 U.S. 678, 693 (2001) (“The distinction between an alien
who has effected an entry into the United States and one who
has never entered runs throughout immigration law.”); Fuen-
tes v. Shevin, 407 U.S. 67, 94 n.31 (1972) (noting that even
in the civil area, we do not “presume acquiescence in the loss
of fundamental rights” and that courts “indulge every reason-
able presumption against waiver”). We have yet to pass upon
the constitutional implications of the VWP waiver or decide
whether it must be knowing and voluntary.4
[7] We need not resolve this question here, however,
because assuming without deciding that the VWP waiver
must be knowing and voluntary, Bingham has not shown that
his allegedly unknowing waiver resulted in prejudice, as
required to prevail on a claim grounded in due process. Lata
v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (“To prevail on
a due process challenge to deportation proceedings, [the alien]
must show error and substantial prejudice. . . . A showing of
prejudice is essentially a demonstration that the alleged viola-
4
The Fifth and Seventh Circuits have accepted the view that a waiver
of rights to contest removal by an alien seeking entry under the VWP must
be knowing and voluntary to comport with due process. See Bayo, 593
F.3d at 502-05 (concluding that waiver of the right to a full immigration
hearing implicates the constitutional right to due process that aliens
acquire upon entry, and therefore must be done both knowingly and volun-
tarily); Nose v. Attorney General, 993 F.2d 75, 79 (5th Cir. 1993)
(“Although due process rights may be waived, . . . such a waiver must be
made knowingly and voluntarily.”) (citations omitted).
BINGHAM v. HOLDER 3961
tion affected the outcome of the proceedings . . . .”) (citations
omitted). As the Seventh Circuit has explained:
Had he known what the waiver said, [the alien]
would have had two options, either of which would
have led to summary removal. If he had signed the
waiver anyway, knowing full well what it said, he
would be in the same situation as he is now. If he
had refused to sign, he would have been removed
summarily at the border because he did not have a
proper visa.
Bayo, 593 F.3d at 506; see also Bradley, 603 F.3d at 240
(adopting the reasoning of Bayo). Similarly, Bingham has not
shown that, but for his allegedly unknowing waiver, he would
have been able to contest his removal on the basis of marriage
to a United States citizen or any other ground.5 The argument
that, had he been fully informed, he would have declined to
sign the waiver, returned to the United Kingdom, obtained a
tourist visa, returned to the United States, and married a
United States citizen, thus allowing him to apply for adjust-
ment of status, is too speculative to establish the requisite
prejudice. Bingham’s claims—insofar as they are premised on
the notion that his waiver was not knowing and voluntary and
therefore cannot constitutionally be enforced—do not entitle
him to relief. If he had refused to sign the waiver, authorities
would not have permitted entry.
V
The procedure required by the VWP is neither complex nor
unfair. The alien signing the VWP form gives up any right to
5
Bingham states that he has a United States citizen fiancee, and that he
“has suffered prejudice that may have been prevented had he been placed
in removal proceedings instead as he would have already been married to
a citizen of the United States entitling him to immediate lawful permanent
resident status under the INA.”
3962 BINGHAM v. HOLDER
challenge removal, except on asylum grounds, if he or she
overstays the grant of time permitted by the VWP. The quid
pro quo that the alien gets is an entry without satisfying the
need for a visa. If we were to permit such unjustified chal-
lenges as here are made by Bingham, it would destroy the
efficacy of the VWP, which permits millions of aliens each
year to enter quickly and without a visa.
DENIED.