GJIKANI v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-23No. No. 19-71880

Summary · law.co

Holding. The court denied the petition for review because the Board of Immigration Appeals' application of the Visa Waiver Program restrictions was supported by substantial evidence in the record and was not based on an incorrect legal premise.

Eldis Gjikani, an Albanian citizen, sought review of the Board of Immigration Appeals' denial of his motion to reopen removal proceedings. Gjikani entered the United States under the Visa Waiver Program using a fraudulent Italian passport and was later placed in removal proceedings. The central dispute concerned whether the government could prove he was admitted under the VWP without producing his fully signed Form I-94W.

The court found that Gjikani's own admission of entering under the VWP, combined with the stamped departure portion of his form and his asylum application listing VWP status, constituted substantial evidence of VWP admission. The court rejected Gjikani's argument that the missing signed form prevented the government from meeting its burden of proof. The court also reasoned that because signing the waiver form was a necessary prerequisite to entry under the program, the Department of Homeland Security must have collected the signed form before allowing him to enter, absent evidence to the contrary.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether admission under the Visa Waiver Program can be established without the original signed I-94W form
Whether a waiver of removal rights is binding when entry occurs with a fraudulent passport
Standard of review for Board of Immigration Appeals' denial of motion to reopen

Procedural posture

Gjikani petitioned for review of the Board of Immigration Appeals' decision denying his motion to reopen removal proceedings, with the Ninth Circuit reviewing the BIA's legal conclusions de novo and its discretionary denial for abuse of discretion.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Petitioner Eldis Gjikani (Gjikani), a citizen of Albania, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his motion to reopen removal proceedings. “We review the [BIAs] denial of a motion to reopen for abuse of discretion, but review purely legal questions de novo․” Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016), as amended (citation omitted).

The Visa Waiver Program (VWP) allows entrants who are nationals of participating countries to enter the United States without a visa “for a period not exceeding 90 days.” 8 U.S.C. § 1187(a)(1)-(2). Admission under the VWP is subject to restrictions, including a waiver of certain rights. See 8 U.S.C. § 1187(b). Specifically, the entrant waives any right “to contest, other than on the basis of an application for asylum, any action for removal of the [entrant].” 8 U.S.C. § 1187(b)(2); see also Momeni v. Chertoff, 521 F.3d 1094, 1096 (9th Cir. 2008). Even though he entered the United States using a fraudulent Italian passport, Gjikani was nevertheless bound by the waiver provisions of the VWP. See Riera-Riera v. Lynch, 841 F.3d 1077, 1080 (9th Cir. 2016).

We reject Gjikanis contention that absent production of his signed Form I-94W, the government cannot carry its burden of establishing that he was admitted under the VWP. Gjikani admitted entering the United States under the VWP using a fraudulent passport. Consistent with this admission, the stamped “departure portion” of Gjikanis Form I-94W is in the record. The record also contains Gjikanis application for asylum that lists his VWP status. Finally, an entrants failure to execute the waiver of rights contained in the Form I-94W necessarily precludes that individual from entry into the country. See 8 CFR 217.4 (a)(1); see also Bingham v. Holder, 637 F.3d 1040, 1047 (9th Cir. 2011) (“If he had refused to sign the waiver [in the form I-94W] authorities would not have permitted entry.”). And because “agencies are entitled to a presumption that they act properly and according to law,” we presume that the Department of Homeland Security admitted Gjikani under the VWP only after collecting the top portion of his completed I-94W form, including his signed waiver, especially since Gjikani adduced no evidence that the Department admitted him in violation of its own regulations. Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007) (citation and internal quotation marks omitted).

Because the BIAs application of the VWP was supported by substantial evidence in the record, Gjikani fails to demonstrate that the BIA based its decision to deny sua sponte reopening on an incorrect legal premise. See Lona v. Barr, 958 F.3d 1225, 1238 (9th Cir. 2020). Therefore, we deny the petition.

PETITION DENIED.

FOOTNOTES

. Because we determine that the BIA did not base its decision to deny sua sponte reopening on an incorrect legal premise, we need not address the governments argument that Gjikani waived review by failing to raise this issue in his initial petition for review.