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Peter James Bingham v. Eric H. Holder Jr.

March 23, 2011


On Petition for Review of an Order of the Department of Homeland Security Agency No. A095-760-810

The opinion of the court was delivered by: Gould, Circuit Judge:


Argued and Submitted November 4, 2010-San Francisco, California

Before: Ronald M. Gould and Consuelo M. Callahan, Circuit Judges, and Edward R. Korman, Senior District Judge.*fn1

Opinion by Judge Gould



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 summary issuance of an order of removal without a hearing violate his due process rights. We have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition for review.

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 determination 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 without referral of the alien to an immigration judge for a determination 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,*fn2 but he overstayed that term by more than a year. On December 5, 2008, Bingham was stopped by 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 immigration 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 hearing. 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 government successfully moved to supplement the administrative record with the signed waiver form. Bingham moved to reconsider the grant of leave to supplement the record, arguing 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 entertain 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 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 contest 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 determined 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 jurisdiction 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 jurisdiction 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 immigration judge. In his opening brief, Bingham asserted that the government did not establish that the order of removal was based on "clear and convincing evidence," because the government 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.*fn3 We allowed the parties to file ...

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