Hui Hua Xiao v. Attorney General of the United States

484 F. App'x 730
Court of Appeals for the Third Circuit·Decided June 11, 2012·No. No. 11-1589·Published

Opinion

OPINION

PER CURIAM.

Hui Hua Xiao, a native and citizen of China, presented a fraudulent Japanese passport to customs officials in an attempt to gain entry to the United States under [731] the Visa Waiver Program (“VWP”), 8 U.S.C. § 1187. Relying upon the provisions of the VWP which authorize summary removal, an agent with Immigration and Customs Enforcement (“ICE”), an arm of the Department of Homeland Security, ordered Xiao’s removal from the United States. Xiao petitions this Court for review, arguing that, because he only attempted to enter, but was not granted entry, under the VWP, he is entitled to a removal proceeding before an immigration judge. We conclude that ICE properly applied the VWP in ordering removal and will deny Xiao’s petition for review.

I.

The relevant facts are undisputed and can be recounted briefly. In 1999, Xiao arrived at Chicago O’Hare International Airport on a flight from Japan, where he had been residing illegally. Xiao sought admission under the VWP, a program that allows non-immigrant visitors from designated countries to enter the United States without a visa and to remain for up to ninety days, provided the visitor complies with various statutory and regulatory requirements. See Bradley v. Att’y Gen., 608 F.3d 235, 238 (3d Cir.2010). Xiao presented a Japanese passport bearing a photograph of himself and the name “Toshiaki Tanaka.” (Japanese citizens, unlike Chinese citizens, are eligible for VWP admission. See 8 C.F.R. § 217.2(a).) As required for admission under the VWP, Xiao also completed Form I-94W, which waived his right to contest any action for removal, other than on the basis of an application for asylum. See 8 U.S.C. § 1187(b)(2).

When questioned at the airport, Xiao conceded under oath that the Japanese passport was fake and that he is a Chinese citizen. Xiao was detained and refused admission to the United States. In a subsequent interview, Xiao expressed fear of returning to China due to, inter alia, alleged persecution on account of his religion. The government referred his case to an immigration judge by issuing a Notice to Appear, which charged Xiao as removable under various provisions of the Immigration and Nationality Act (“INA”). In addition, the government released Xiao from custody and paroled him into the country under 8 U.S.C. § 1182(d)(5) (affording the Attorney General discretion to parole temporarily an alien applying for admission, “but such parole of such alien shall not be regarded as an admission of the alien”).

Thereafter, Xiao filed an application for asylum. In 2003, an immigration judge in New York terminated Xiao’s removal proceeding, explaining that, because Xiao sought entry under the VWP, the government must issue a Notice of Referral (which commences an asylum-only proceeding before an immigration judge) not a Notice to Appear (which commences a removal proceeding under INA § 240).1 The government promptly issued a Notice of Referral, and in 2006 an immigration judge in Boston denied Xiao’s asylum claim. Xiao appears not to have appealed that decision.

On February 17, 2011, an ICE agent issued a summary removal order under the VWP, determining that Xiao is inadmissible under 8 U.S.C. §§ 1182(a)(6)(C)® and 1182(a)(7)(A)(i)(II) because he willfully misrepresented a material fact in attempting to gain admission to the United States. Xiao timely filed a petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252(a) because ICE’s order constitutes [732] a final order of removal. See Bradley, 603 F.3d at 237 n. 1. Xiao contends on appeal that ICE had no authority to order his removal. He concedes that he engaged in a fraudulent attempt to enter this country under the terms of the VWP, but he argues that ICE cannot remove him summarily because he was never actually granted entry as a VWP participant. We discern no error in the removal order.

Non-immigrant visitors who wish to benefit from the process of expedited admission provided by the VWP “must waive certain procedural rights afforded other aliens within this country[.]” Vera v. Att’y Gen., 672 F.3d 187, 190 (3d Cir.2012). Among other things, “a VWP visitor must waive his or her rights to contest the government’s admissibility determinations and removal actions, except that the alien may contest removal actions on the basis of asylum.” Id. (quoting Bradley, 603 F.3d at 238) (quotation marks omitted). To this end, a VWP applicant is required, “prior to admission to the United States, [to] present United States officers with a ‘completed, signed Form I-94W, Nonimmi-grant Visa Waiver Arrival/Departure Form,’ ... which contains an express waiver of any possible right to contest admissibility determinations and removal actions.” Id. (quoting 8 C.F.R. § 217.2(b)(1)).

Federal regulations adopted to implement the VWP do not afford different treatment to aliens, like Xiao, who apply for VWP admission with fraudulent travel documents and fail to gain entry under the program:

An alien who applies for admission under the provisions of section 217 of the Act [i.e., the VWP] ... who is in possession of and presents fraudulent or counterfeit travel documents, will be refused admission into the United States and removed. Such refusal and removal shall be made at the level of the port director or offieer-in-charge, or an officer acting in that capacity, and shall be effected without referral of the alien to an immigration judge for further inquiry, examination, or hearing, except that an alien who presents himself or herself as an applicant for admission under [the VWP] and applies for asylum in the United States must be issued a Form I-863, Notice of Referral to Immigration Judge, for [an asylum-only proceeding].

8 C.F.R. § 217.4(a)(1).

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Hui Hua Xiao v. Attorney General of the United States, 484 F. App'x 730 (3d Cir. 2012).

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