NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1025
___________
VAIDAS KULBERKIS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Administrative Order of
the Department of Homeland Security
(Agency No. A205-016-173)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 15, 2012
Before: RENDELL, ALDISERT and NYGAARD, Circuit Judges
(Opinion filed November 19, 2012)
___________
OPINION OF THE COURT
___________
PER CURIAM
Vaidas Kulberkis, a citizen of Lithuania, petitions for review of an order of
deportation issued by United States Immigration and Customs Enforcement (“ICE”), an
arm of the Department of Homeland Security. For the reasons that follow, we will deny
the petition.
I.
Because we write primarily for the parties, who are familiar with the background
of this case, we discuss that background only briefly here. In June 2009, Kulberkis was
admitted to the United States pursuant to the Visa Waiver Program (“VWP”). Under that
program, “a qualifying visitor may enter the United States without obtaining a visa, so
long as a variety of statutory and regulatory requirements are met.” Bradley v. Att‟y
Gen. of the U.S., 603 F.3d 235, 238 (3d Cir. 2010). “Once admitted under the VWP, a
visitor may remain in the United States for 90 days.” Id. (citing 8 U.S.C. § 1187(a)(1)).
“[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.” Bradley, 603 F.3d at 238 (citing 8 U.S.C. § 1187(a)-(b)). “[U]nlike
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.‟” Bradley, 603 F.3d at 238 (quoting 8 C.F.R. § 217.4(b)).
Kulberkis ultimately remained in the United States beyond the VWP‟s 90-day
period. In March 2011, he married Dawn Petro, a United States citizen, in New Jersey.
In December 2011, ICE‟s Field Office Director for Newark, New Jersey, ordered that
2
Kulberkis be deported for having remained in the country for a time longer than
permitted. Kulberkis now challenges that order.1
II.
Kulberkis presents two arguments in support of his petition. We consider them in
turn.
He first contends that, although he was admitted to the United States as a VWP
entrant, the record fails to establish that he waived his right to a removal hearing. We
previously considered a similar argument in Bradley. There, Petitioner Heathcliffe
Bradley claimed that his waiver under the VWP was invalid because it was not knowing
and voluntary. Bradley, 603 F.3d at 239-40. Because that claim amounted to a due
process challenge under the Fifth Amendment, we explained that Bradley could not
prevail unless he established that he was “substantially prejudiced” by the allegedly
invalid waiver. Id. at 240. We ultimately concluded that Bradley had not made that
showing, for “[h]ad 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 [his United States citizen wife].” Id. at 241. Because we are not persuaded
1
We have jurisdiction over Kulberkis‟s petition based on our authority to review final
orders of removal. See 8 U.S.C. § 1252(a)(1); Bradley, 603 F.3d at 237 n.1. Although
ICE‟s order was styled as an order of “deportation,” not an order of “removal,” “[w]e
have repeatedly held, in a variety of contexts, that the terms „deportation‟ and „removal‟
are interchangeable.” Sarango v. Att‟y Gen. of the U.S., 651 F.3d 380, 383 (3d Cir.
2011).
3
that there is a meaningful distinction between Bradley and the case at bar, our reasoning
in Bradley forecloses relief here.2
Kulberkis‟s remaining argument is that his deportation order is void “because it
was issued without allowing [him] to apply for marriage-based adjustment of status”
under 8 U.S.C. § 1255(c)(4).3 (Pet‟r‟s Opening Br. 1.) Again, we considered a similar
argument in Bradley. There, we held 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 [under the VWP], adjust his status as a defense to
removal.” Bradley, 603 F.3d at 242. Although Kulberkis maintains that his case is
distinguishable from Bradley “because Bradley has filed his application for adjustment of
status . . . and it was denied,” (Pet‟r‟s Opening Br. 3), our holding in Bradley did not
hinge on those facts. Rather, it hinged on the fact that Bradley applied to adjust status
after the expiration of the VWP‟s 90-day period. Because Kulberkis now seeks to do the
same, our reasoning in Bradley controls and forecloses relief here.
In light of the above, we will deny Kulberkis‟s petition for review.
2
Given our resolution of this claim, we deny as unnecessary the Government‟s motion to
supplement the record with evidence that Kulberkis indeed executed the VWP waiver.
3
Although § 1255(c)(4) “generally makes VWP entrants ineligible for the „adjustment of
status‟ remedy,” that provision “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.” Bradley, 603 F.3d at 242 n.6 (citing 8
U.S.C. § 1151(b)(2)(A)(i)).
4