Bradley v. Attorney General of the United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 08-4184
_____________

HEATHCLIFFE JOHN BRADLEY,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent
_____________

On Petition for Review of an Administrative Order of
Removal of the Department of Homeland Security
Ordering Removal pursuant to 8 U.S.C. § 1187
(A87-074-865)
_____________

Argued March 11, 2010
_____________

Before: AMBRO, SMITH and ALDISERT, Circuit Judges
(Filed: April 22, 2010)
Haroutyun Asatrian, Esq. (Argued)
Strasser Asatrian, LLC
744 Broad Street, 16th Floor
Newark, NJ 07102

Counsel for Petitioner

Michael F. Hertz
Acting Assistant Attorney General
Civil Division

Carl H. McIntyre, Jr.
Assistant Director
Office of Immigration Litigation

Gary J. Newkirk, Esq. (Argued)
Stephen F. Day, Esq.
Justin R. Markel, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

Counsel for Respondent

_____________

OPINION OF THE COURT
_____________

2
ALDISERT, Circuit Judge.

Petitioner Heathcliffe John Bradley, a citizen and
national of New Zealand, seeks review of a final removal
order of the Department of Homeland Security, Immigration
and Customs Enforcement (“the Department”). Bradley
contends that the Department’s removal order is void under
Woodby v. INS, 385 U.S. 276, 286 (1966), because the record
lacks “clear, unequivocal, and convincing evidence” that he
waived his right to contest his removal under the Visa Waiver
Program (“VWP”), 8 U.S.C. § 1187. Bradley additionally
contends that he did not validly waive his right to contest his
removal under the VWP because his waiver was not
“knowing and voluntary.” Finally, Bradley contends that,
notwithstanding any VWP waiver, he may renew his
application for a marriage-based adjustment of status before
an immigration judge. See 8 U.S.C. § 1255(c)(4). For the
reasons that follow, we will deny his petition.1

1
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1),
which permits us to review final orders of removal. Although
some courts have suggested that 8 U.S.C. § 1187(b)(2) narrows
our jurisdiction to review removal orders involving VWP
entrants, see, e.g., Lacey v. Gonzales, 499 F.3d 514, 519 (6th
Cir. 2007), we view § 1187(b)(2) as a substantive, rather than a
jurisdictional, bar to a VWP entrant’s ability to obtain relief
from removal. In particular, § 1187(b)(2) does not appear to
abrogate 8 U.S.C. § 1252(a)(2)(D), which provides that
“[n]othing . . . in any other provision of this Act (other than this

3
 I.

Bradley arrived in the United States on August 28,
1996 without a valid non-immigrant visa, but was admitted

section) which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an
appropriate court of appeals.” We are further persuaded that §
1187(b)(2) is not jurisdiction-stripping because it does not
clearly and explicitly deprive federal courts of jurisdiction. See
Calcano-Martinez v. INS, 533 U.S. 348, 351-352 (2001)
(concluding that “Congress has not spoken with sufficient
clarity to strip the district courts of jurisdiction to hear habeas
petitions raising” claims not reviewable by petitions for direct
review). Compare 8 U.S.C. § 1187(b)(2) (providing that a VWP
entrant must “waive any right . . . to contest . . . any action for
removal”), with, e.g., 8 U.S.C. § 1158(a)(3) (“No court shall
have jurisdiction to review . . . .”), 8 U.S.C. § 1252(a)(2)(A),(B)
(same), and 8 U.S.C. § 1252(a)(5) (“For purposes of this Act, in
every provision that limits or eliminates judicial review or
jurisdiction to review, the terms ‘judicial review’ and
‘jurisdiction to review’ include habeas corpus review . . . and
review pursuant to any other provision of law (statutory or
nonstatutory).”). In view of the “strong presumption in favor of
judicial review of administrative action,” INS v. St. Cyr, 533
U.S. 289, 298 (2001), we do not believe that § 1187(b)(2)
affects our jurisdiction to consider Bradley’s claims. As we will
explain, however, § 1187(b)(2) has a significant effect on
Bradley’s ability to pursue substantive relief from removal.

4
under the VWP. Bradley represents that he was intoxicated
when he arrived, and he claims to have little recollection of
his admission. Nevertheless, Bradley’s declaration establishes
that, after his arrival, he signed a form, presented that form to
a customs officer, and was admitted into the United States.
According to Bradley,

[u]pon my arrival at John F. Kennedy
International Airport in New York, I was given
a form to complete, which I vaguely recall
completing or even signing for that matter. . . . I
handed the form to the Custom’s agent, who
waived me through after taking a part of my
form, without any questions.

(Bradley Decl. ¶¶ 18, 20 (errors in original).) According to his
Form I-94W Departure Record, Bradley was authorized to
remain in the United States for the 90-day period ending
November 27, 1996. (App.2 8.) It is undisputed that Bradley
remained in the United States beyond his authorized stay, and
that he remains here still.

On July 29, 2006, Bradley married Cheryl Losee, a
United States citizen. In December 2007 and with the
assistance of an attorney, Bradley and Losee applied to United

2
“App.” refers to the petitioner’s appendix, while “Resp’t
App.” refers to the respondent’s appendix.

5
States Citizenship and Immigration Services to adjust
Bradley’s status to that of a lawful permanent resident. In
conjunction with that application, Bradley’s wife filed an I-
130 immediate-relative visa petition, a prerequisite to
obtaining a marriage-based adjustment of status. That petition
was denied pursuant to 8 C.F.R. § 103.2(b)(13) when Bradley
and Losee failed to appear for a scheduled interview.

On October 8, 2008, Bradley was arrested and ordered
removed, pursuant to 8 U.S.C. § 1187(b). On October 14,
2008, Bradley filed a Petition for Review in this Court and
moved for a stay of removal. On November 10, 2008, we
stayed Bradley’s removal order, and on November 14, 2008,
Bradley was released from incarceration, pending our review.

II.

Before we address Bradley’s contentions, we first
review the purpose and role of the VWP within our nation’s
body of immigration law.

Congress established the VWP “‘to facilitate
international travel and promote the more effective use of the
resources of affected government agencies while not posing a
threat to the welfare, health, safety, and security of the United
States.’” Nose v. Att’y Gen., 993 F.2d 75, 77 n.2 (5th Cir.
1993) (quoting 53 Fed. Reg. 24,898 (1988)). Under the VWP,
a qualifying visitor may enter the United States without

6
obtaining a visa, so long as a variety of statutory and
regulatory requirements are met. Among other things, a visitor
seeking admission under the VWP must execute certain
immigration forms, present a passport from a qualifying
country, and possess a round-trip ticket. 8 U.S.C. § 1187(a).
Once admitted under the VWP, a visitor may remain in the
United States for 90 days. 8 U.S.C. § 1187(a)(1).

Although the VWP affords visitor aliens with great
flexibility and convenience, those benefits come at a cost.
Most significantly, a VWP visitor must waive his or her right
to contest the government’s admissibility determinations and
removal actions, except that the alien may contest removal
actions on the basis of asylum.3 8 U.S.C. § 1187(a)-(b).

3
The VWP’s waiver provision states:

An alien may not be provided a waiver under the
program unless the alien has waived any right–

(1) to review or appeal under this Act of an
immigration officer’s determination as to the
admissibility of the alien at the port of entry into
the United States, or

(2) to contest, other than on the basis of an
application for asylum, any action for removal
against the alien.

7
Accordingly, a VWP applicant must, prior to admission,
present U.S. officers with a “completed, signed Form I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form,” 8
C.F.R. § 217.2(b)(1), expressly waiving, inter alia, 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). This requirement is ironclad. Indeed, a VWP
applicant “may not be provided a waiver under the program
unless” the alien has signed a VWP waiver, id., and an
applicant who does not sign will be refused admission and
removed, see 8 C.F.R. § 217.4(a)(1).

For a VWP entrant, the effects of this no-contest
provision are severe. A VWP entrant waives the right to assert
any non-asylum objection to his removal. 8 U.S.C. §
1187(b)(2). Additionally, unlike the ordinary removal case, a
VWP entrant’s removal “shall be determined by the district
director who has jurisdiction over the place where the alien is
found, and shall be effected without referral of the alien to an
immigration judge for a determination of deportability.” 8
C.F.R. § 217.4(b). But as the Court of Appeals for the Ninth
Circuit has recognized, given the ease and convenience with
which a VWP visitor may enter the United States, the VWP’s
“linchpin . . . 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

8 U.S.C. § 1187(b).

8
if he overstays.” Handa v. Clark, 401 F.3d 1129, 1135 (9th
Cir. 2005). With these precepts in mind, we turn to Bradley’s
challenge to his VWP waiver.

III.

We first address Bradley’s contention that the
Department’s removal order is invalid under Woodby v. INS,
385 U.S. at 286, because it was entered without “clear,
unequivocal, and convincing evidence” that he waived his due
process right to contest his removal. In particular, Bradley
contends that because his removal order referred to his VWP
waiver, that waiver is a “ground for deportation,” subject to
proof by clear, unequivocal and convincing evidence under
Woodby. He contends that because the Department failed to
produce his signed I-94W form, it has not met its burden of
proof, rendering his removal order invalid. We disagree.

Although we doubt Bradley’s assumption that the
Department must prove his waiver by “clear, unequivocal,
and convincing evidence,” we hold that the Department has
easily met that burden. Bradley admits that he entered the
United States under the VWP, and although his declaration is
vague, he concedes that he signed a form, presented that form
to a customs officer, and was admitted into the United States.
(See Bradley Decl. ¶¶ 18, 20.) Consistent with that account,
the record contains the top portion of a Form I-94W,
Nonimmigrant Visa Waiver Arrival/Departure Form, filled

9
out in handwriting “Bradley, Heathcliffe,” date of birth “07
10 72,” and stamped with Bradley’s admission date of “Nov
27 1996.” (App. 8.) Bradley’s admissions, together with the
documentary evidence, constitute powerful evidence that
Bradley signed a Form I-94W, including a waiver of due
process rights, before he was admitted to the United States.

This evidence becomes nearly irrefutable in view of
the regulations and procedures governing admission under the
VWP. Under the regulations, each VWP applicant must
present a “completed, signed Form I-94W, Nonimmigrant
Visa Waiver Arrival/Departure Form,” 8 C.F.R. §
217.2(b)(1), which contains the VWP waiver (Resp’t App. 1).
During the admission process “[t]he departure record at the
bottom of the form is retained by the alien, while the
immigration official admitting the alien keeps the top portion,
including the signed waiver.” (Resp’t Br. 14 n.8.)
Significantly, “an alien may not be provided a waiver under
the program unless the alien has waived any right . . . to
contest . . . any action for removal,” 8 U.S.C. § 1187(b)(2),
and any alien who does not sign the VWP waiver will be
refused admission, see 8 C.F.R. § 217.4(a)(1). Because
“agency action . . . is entitled to a presumption of regularity,”
McLeod v. INS, 802 F.2d 89, 95 (3d Cir. 1986), we presume
that the Department admitted Bradley under the VWP only
after collecting the top portion of his completed I-94W form,
including his signed VWP waiver. Although this presumption
is rebuttable, id., Bradley has adduced no evidence that the

10
Department admitted him in violation of its own regulations,
and in fact, his declaration is entirely consistent with a routine
admission under the VWP. We conclude, therefore, that the
evidence is more than sufficient to prove Bradley signed a
VWP waiver, even assuming that waiver must be proven by
“clear, unequivocal, and convincing evidence.” As we
suggested at oral argument, this contention is underwhelming.

IV.

Bradley next contends that his VWP waiver is invalid
because it was not “knowing and voluntary,” and he urges us
to adopt the “knowing and voluntary” requirement embraced
by the Courts of Appeals for the Fifth and Seventh Circuits.
See Bayo v. Napolitano, 593 F.3d 495, 505 (7th Cir. 2010)
(en banc); Nose v. Att’y Gen., 993 F.2d 75, 79 (5th Cir.
1993). Tracking the reasoning of these decisions, Bradley
argues that, as with other waivers of constitutional rights, a
VWP waiver of due process rights is not constitutionally
enforceable unless it is knowing and voluntary. Bradley
contends that his specific waiver was not knowing and
voluntary because he was intoxicated when he signed it. At
the very least, Bradley contends, he is entitled to adjudicate
the constitutional validity of his waiver before an immigration
judge. We cannot agree.

In all respects, Bradley’s claim amounts to a challenge
of his removal order under the Due Process Clause of the

11
Fifth Amendment, and consequently, he cannot prevail
without “an initial showing of substantial prejudice.” Khan v.
Att’y Gen., 448 F.3d 226, 236 (3d Cir. 2006) (citation and
quotation marks omitted).4 Thus, even assuming without
deciding that Bradley’s VWP waiver must be “knowing and
voluntary,” Bradley cannot invalidate his removal order
unless he can demonstrate he was “substantially prejudiced”
by his allegedly unknowing waiver. He cannot.

Bradley’s prejudice argument is soundly defeated by
the cogent reasoning of the en banc Court of Appeals for the
Seventh Circuit in Bayo v. Napolitano, 593 F.3d 495 (7th Cir.
2010) (en banc), a case factually on all fours with this one.
There the court reconsidered a panel decision granting
petitioner Bayo’s petition for review and ordering the
Department to conduct a hearing to determine whether his
VWP waiver was knowing and voluntary. Id. at 507.
Although the en banc court agreed with the panel’s
conclusion that a VWP waiver must be knowing and
voluntary, it rejected Bayo’s due process claim because he
could not show prejudice. As the court explained,

[h]ad he known what the waiver said, Bayo
would have had two options, either of which

4
See also Khouzam v. Att’y Gen., 549 F.3d 235, 258 (3d Cir.
2008); Wilson v. Ashcroft, 350 F.3d 377, 381 (3d Cir. 2003)
(stating the rule in terms of “prejudice”).

12
 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. Perhaps
there is a slight chance that after removal, Bayo
could have obtained a visa to come to the
United States, and then he might have settled in
Indiana, met Tatiana Sia, and married her,
allowing him to adjust his status based on
marriage at that time. As Bayo admits in his
brief though, “[i]t is difficult to compare what
might have been with what is.” This is true, and
it is the reason why we find the explanation of
how Bayo might have been harmed too
speculative to support a showing of prejudice.

Id. at 506. Similarly, Bradley cannot show he has been
prejudiced by an unknowing or involuntary waiver because
any harm would be too speculative. The consequence he now
faces – summary removal – is the same consequence he would
have faced had he known of the waiver and refused to sign.
He has failed to demonstrate how his knowledge of the
waiver realistically could have changed this outcome.

Resisting this conclusion, Bradley urges us to focus
our prejudice inquiry not on the time of entry, but on the

13
summary removal resulting from the Department’s
enforcement of his allegedly unknowing waiver. He contends
that his unknowing waiver is prejudicial because it deprives
him of his right to contest his removal on the basis of his
petition for adjustment of status. This argument fails as well.

Bradley’s VWP waiver was an express condition
precedent to his 1996 entry to the United States, and he would
not have been admitted without it. The prejudice of which he
complains – summary removal without a hearing – is a direct
consequence of the VWP’s congressional design and
implementing regulations, and not Bradley’s alleged failure to
comprehend the terms of his VWP visitor status. See 8 C.F.R.
§ 217.4(b) (providing that removal of a VWP entrant “shall be
effected without referral of the alien to an immigration judge
for a determination of deportability”). To prevail on his due
process claim, Bradley must demonstrate substantial prejudice
resulting from the due process violation he has alleged – his
unknowing waiver of constitutional rights. Accordingly,
Bradley must prove that, but for his ignorance of the VWP
waiver, he could otherwise contest his removal on the basis of
his petition for adjustment of status. This, he cannot do. Had
Bradley known the contents of the waiver and refused to sign,
he would be in the same position as he is now – subject to
summary removal without a hearing – and he would not now
be eligible to adjust his status on the basis of his marriage to
Cheryl Losee. As in Bayo, “the explanation of how [Bradley]
might have been harmed [is] too speculative to support a

14
showing of prejudice.” Bayo, 593 F.3d at 506.

Likewise, we reject Bradley’s contention that, under
Khouzam v. Attorney General, 549 F.3d 235, 258 (3d Cir.
2008), we should presume substantial prejudice because
Bradley received no process at all. Our Court held in
Khouzam that a non-VWP petitioner was “inherently” and
“substantially prejudiced” by a “complete absence of any
process,” when the government, without notice or a hearing,
terminated the petitioner’s deferral of removal under the
Convention Against Torture. Id. at 239-240, 258. Distinct
from Bradley, however, the petitioner in Khouzam did not
waive his due process rights, and no statute conditioned his
admission to the United States on an express waiver of these
rights. See id. at 235-260. Although a complete denial of
process may be inherently prejudicial in most cases, we find
no inherent prejudice in the enforcement of an express due
process waiver against an alien who has already received the
benefit of that waiver. Consequently, in the VWP context, we
will require the same showing of “substantial prejudice”
required for other due process challenges to orders of
removal. See Khan, 448 F.3d at 236. Because Bradley cannot
show prejudice, his due process claim does not carry.

V.

Bradley’s final argument is that, even if his waiver is
valid and enforceable, he is nevertheless entitled to pursue a

15
marriage-based adjustment of status under 8 U.S.C. §
1255(c)(4).5 He contends that, because 8 U.S.C. § 1255(c)(4)
permits VWP entrants to adjust their status on the basis of an
“immediate relative” petition,6 a VWP entrant pursuing such
an adjustment is “assimilated to the status of any other alien
who has applied for adjustment of status . . . and is not subject
to the VWP[] no contest-clause.” (Pet’r Br. 33 (citing
Freeman v. Gonzales, 444 F.3d 1031, 1037 (9th Cir. 2006).)
Any other interpretation, he contends, would be illogical and
would undermine congressional intent to make the adjustment
of status remedy available to VWP entrants. Again, he is
wrong.

5
The “adjustment of status” remedy permits the Attorney
General, “in his discretion and under such regulations as he may
prescribe,” to adjust an alien’s status to that of a lawful
permanent resident 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).
6
More precisely, 8 U.S.C. § 1255(c)(4) generally makes
VWP entrants ineligible for the “adjustment of status” remedy,
but carves out an exception for VWP entrants seeking to adjust
their status on the basis of an immediate-relative petition. The
term “immediate relative” includes the spouse of a U.S. citizen.
See 8 U.S.C. § 1151(b)(2)(A)(I).

16
 Bradley’s position has already been rejected by six of
our sister Courts of Appeals, and we now join them in doing
the same.7 As the Court of Appeals for the Seventh Circuit
explained in Bayo,

[a]t first glance, it appears that there is a conflict
between the adjustment-of-status statute, 8
U.S.C. § 1255(c)(4), and the VWP statute, 8
U.S.C. § 1187(b)(2). Upon closer examination,
however, we believe that they can be reconciled.
During the time when a nonimmigrant visitor is
within the VWP’s 90-day window, she may
submit an adjustment-of-status application
based on an immediate relative. An application
submitted at that time would not represent a
challenge to removal. After the visitor overstays
her 90-day visit, however, the effect of the
VWP waiver kicks in, preventing any objection
to removal (except for asylum), including one
based on adjustment of status.

7
See Bayo v. Napolitano, 593 F.3d 495, 507 (7th Cir. 2010)
(en banc); McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir.
2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008)
(narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir.
2006)); Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008);
Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt
v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006).

17
Bayo, 593 F.3d at 507. We agree and hold that, although
Bradley was once statutorily eligible under 8 U.S.C. §
1255(c)(4) for the adjustment he now seeks, he may not, after
the expiration of his 90-day stay, adjust his status as a defense
to removal. Bradley’s VWP waiver squarely forecloses him
from contesting his removal on this basis.

Contrary to Bradley’s contention, the decision of the
Ninth Circuit Court of Appeals in Freeman v. Gonzales, 444
F.3d 1031 (9th Cir. 2006), does not compel another result.
Although that case ruled the VWP’s no-contest clause
inapplicable when “a VWP visitor properly files an
adjustment of status application,” id. at 1035, the court
subsequently narrowed that decision to cover only VWP
entrants who petition to adjust their status during their lawful
90-day stay, see Momeni v. Chertoff, 521 F.3d 1094, 1097
(9th Cir. 2008). Thus, after Momeni, a VWP entrant in the
Ninth Circuit may contest her removal on the basis of an
adjustment-of-status petition filed during her lawful 90-day
stay, but as in the other Courts of Appeals, not on the basis of
a petition filed after that period. See Lacey, 499 F.3d at 519
n.6 (emphasizing that Freeman does not apply to adjustment
of status petitions filed by VWP overstays). Thus, even if we
adopted Freeman, that decision would be unavailing to
Bradley, who petitioned for an adjustment of status years
beyond the expiration of his authorized stay. Consequently,
we conclude that Bradley’s VWP waiver forecloses him from

18
contesting his removal via a petition for adjustment of status.8

VI.

For the foregoing reasons, we will deny Bradley’s
petition for review.

8
At oral argument and in a supplemental letter to this Court
under Rule 28(j) of the Federal Rules of Appellate Procedure,
Bradley raised the argument that certain regulations of the
Department of State (namely, the so-called “30/60 day rule”
found at 9 Foreign Affairs Manual 40.63 n.4.7-1 to 4.7-4) render
§ 1255(c)(4)’s adjustment of status provision a nullity for VWP
entrants. This argument did not appear in Bradley’s opening
brief nor in his reply brief, and we deem it waived. See United
States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well
settled that an appellant’s failure to identify or argue an issue in
his opening brief constitutes waiver of that issue on appeal.”);
Lattab v. Ashcroft, 384 F.3d 8, 17 (1st Cir. 2004) (noting “[t]he
usual rule, . . . that new theories cannot be raised in a
post-argument Rule 28(j) filing”).

19