Nicusor-Remus v. Sessions, No. 15-70588 (9th Cir. 2018)Annotate this Case
The Ninth Circuit dismissed, based on lack of jurisdiction, a petition for review of the BIA's denial of petitioner's motion to terminate asylum-only proceedings and denial of his application for asylum. Petitioner entered the United States in 2000 pursuant to the Visa Waiver Program (VWP), but the INS issued a notice in 2002 concluding that he was removable and had waived his right to contest his removeability as a VWP entrant after he was arrested for credit card fraud. As part of his plea agreement in the credit card prosecution, petitioner agreed to testify against his co-conspirators, in exchange for help resolving his immigration status. Petitioner was issued an I-94 Departure Record, paroling him into the United States for "significant public interest," so he could testify against his co-conspirators. After petitioner's parole had expired, DHS took him into custody pursuant to his 2002 removal order and petitioner then requested asylum.
The panel held that the 2002 removal order was executed when petitioner briefly departed the United States in 2004. Because the 2002 order had already been executed when petitioner entered the United States in 2004, he was no longer an applicant under the VWP, but an applicant for admission. Therefore, there was no final removal order over which the court had jurisdiction.