Shabaj v. Holder, No. 09-0558 (2d Cir. 2010)

Annotate this Case

Download PDF

09-0558-ag Shabaj v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: January 11, 2010 Decided: April 12, 2010) Docket No. 09-0558-ag - - - - - - - - - - - - - - - - - - - -x PAULIN SHABAJ, Petitioner , - v.ERIC H. HOLDER , JR., Attorney General of the United States of America Respondent . - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, SACK and HALL, Circuit Judges. The Petitioner s removal order was premised on his 31 entry as an Italian national under the Visa Waiver Program, 32 which waives any defense to removal other than asylum. 33 petitions for review on the ground that, as an Albanian, he 34 was ineligible for the visa waiver. 35 entry using a fake passport from a Visa Waiver Program 36 nation, his removal was properly administered under that He Since he attempted 1 program, and his petition for review is therefore denied. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 MICHAEL P. DiRAIMONDO (Marialania L. Masi, Stacy A. Huber on the brief), DiRaimondo & Masi, LLP, Melville, New York , for Petitioner. ANDREW B. INSENGA (Daniel E. Goldman, Tony West, on the brief), U.S. Department of Justice Office of Immigration Litigation, Washington, D.C. , for Respondent. DENNIS JACOBS, Chief Judge: Paulin Shabaj petitions for review of a January 26, 19 2009 removal order of the Department of Homeland Security 20 ( DHS ). 21 in the United States in November 2000 bearing a false 22 passport of Italy, whose citizens are eligible to enter the 23 United States under the Visa Waiver Program that allows 24 individuals from certain nations to visit the United States 25 without a visa for up to 90 days. 26 On the flight here he signed a form I-94W Nonimmigrant Visa 27 Waiver Arrival/Departure Form using the name on his fake 28 Italian passport. 29 the benefit of entering under the expedited process of the 30 Visa Waiver Program, the signing alien agrees to waive any Shabaj, a native and citizen of Albania, arrived See 8 U.S.C. § 1187(a). Form I-94W specifies that in exchange for 2 1 right to challenge removability except by way of an asylum 2 claim. 3 When Shabaj was detained upon arrival, he sought asylum 4 and was referred to an Immigration Judge for an asylum-only 5 proceeding. 6 on October 3, 2001; Shabaj s appeal was denied by the BIA on 7 February 25, 2003; and his motions to reopen before the BIA 8 were denied on December 21, 2004 and March 10, 2005. 9 See 8 U.S.C. § 1187(b)(2). Asylum was denied Within four months of the March 10 order, Shabaj 10 married a United States citizen , and twice applied for 11 status adjustments and waivers of inadmissibility; the 12 applications were denied. 13 application on January 26, 2009, a final order of removal 14 was issued pursuant to 8 C.F.R. § 217.4(b). 1 Upon the denial of the second 1 The authority the government cites for the removal order is subsection (b) of 8 C.F.R. § 217.4, which concerns persons who have been admitted under the Visa Waiver Program. See 8 C.F.R. § 217.4(b)(1). There is nothing in the record to establish whether he was admitted when his passport was found to be fake, or whether he was paroled into the United States pending asylum-only proceedings (in which latter event, authority for his removal would have been found under subsection (a) of 8 C.F.R. § 217.4). However, the procedural section of the removal order recites that Shabaj has been admitted under Section 217. And the only ground on which Shabaj challenges the jurisdiction of the DHS officer who ordered his removal is that Shabaj was not properly considered an applicant under the Visa Waiver Program--which he assuredly was. Therefore, any other argument on this point is waived, see Norton v. Sam s Club, 3 1 We review the agency s factual findings under the 2 substantial evidence standard, treating them as conclusive 3 unless any reasonable adjudicator would be compelled to 4 conclude to the contrary. 5 110 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). 6 review de novo questions of law and the application of law 7 to undisputed fact. 8 9 Bah v. Mukasey, 529 F.3d 99, We Bah, 529 F.3d at 110. Aliens admitted under [the Visa Waiver] [P]rogram forfeit any right to challenge their removal, except that 10 they may apply for asylum. 11 133 (2d Cir. 2006) (citing 8 U.S.C. § 1187(b)). 12 do not waive the right to review or contest removal other 13 than on the basis of an application for asylum may not be 14 provided a waiver under the program. 15 16 Kanacevic v. INS, 448 F.3d 129, Aliens who 8 U.S.C. § 1187(b). Shabaj argues that he was not an applicant under the Visa Waiver Program because Albanians are ineligible for it, 145 F.3d 114, 117 (2d Cir. 1998) , and would in any event be futile. The only remedy Shabaj seeks is to remain in the United States while he appeals before the DHS its denial of his waiver of inadmissibility and status adjustment applications. As Shabaj did not submit sufficient evidence to support a waiver of inadmissibility in this most recent application, there is no reason to believe his appeal before the DHS will be any more successful than his two previous failed attempts to get a waiver. Cf. Xiao Ji Chen v. U.S. DOJ, 471 F.3d 315, 339 (2d Cir. 2006). 4 1 see 8 U.S.C. § 1187(a), and that the order directing his 2 removal pursuant to the Visa Waiver Program statute 3 (permitting asylum-only removal proceedings ) is invalid and 4 unlawful. 5 We hold that Shabaj is bound by the terms of the 6 program notwithstanding that he used a fraudulent passport 7 to obtain the benefit of expedited entry for which his 8 waiver was given quid pro quo. 2 9 the statute treats someone who applies under the Visa Waiver 10 Program using fraudulent papers as bound by its provisions: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The regulation implementing An alien who applies for admission under the provisions of section 217 of [the Visa Waiver Program] . . . 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 . . . 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 section 217 of the [the Visa Waiver Program] and applies for asylum must be [afforded an asylum-only proceeding]. 8 C.F.R. § 217.4(a)(1). As the DHS interprets this 2 There is no reason to disturb the agency s factual finding that Shabaj presented his fake Italian passport upon landing, nor its conclusion that Shabaj properly waived his right to get access to broader removal proceedings. To the extent those are even necessary preconditions to considering someone to be a Visa Waiver Program applicant, the agency properly found them met. 5 1 regulation, it is applicable to anyone who seeks admission 2 under the Visa Waiver Program using a passport from a nation 3 included in the Visa Waiver Program, whether the passport is 4 valid or bogus. 5 Cir. 2008); see also id. ( If [petitioner s] interpretation 6 of the [Visa Waiver Program] were correct, ineligible aliens 7 who fraudulently abuse the Program would receive the 8 benefits of [Visa Waiver Program] entry but be free of the 9 Program s restrictions. ). 10 See Zine v. Mukasey, 517 F.3d 535, 543 (8th This Court has held that someone in an analogous 11 factual situation was properly considered a Visa Waiver 12 Program applicant. 13 citizen and national of a non-Visa Waiver Program nation who 14 arrived and displayed a fraudulent passport purporting to be 15 from a Visa Waiver Program nation. 16 held that, because asylum is the only remedy that could be 17 sought by a Visa Waiver Program applicant, the denial of the 18 petitioner s asylum claim constituted a final order of 19 removal from which the petitioner could appeal. 20 133-35. 21 position--a fraudulent Visa Waiver Program applicant--is a 22 Visa Waiver Program applicant nevertheless. In Kanacevic, the petitioner was a 448 F.3d at 132-33. We See id. at This is an implicit ruling that someone in Shabaj s 6 1 Shabaj was properly adjudicated as a Visa Waiver 2 Program applicant. 3 to which he was entitled, and was properly determined to be 4 removable. He has received all the removal process The petition for review is denied. 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.