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Vasconcelos v. Lynch

Facts

Rui Gilberto Enes de Vasconcelos, a citizen of Portugal and native of Angola, has resided in the United States since 1989. He last entered the country on June 25, 2012, at the Champlain, New York port-of-entry, using a Portuguese passport. An ESTA record indicated that he submitted an application to participate in the Visa Waiver Program (VWP) two months prior, certifying that he waived any right to contest removal except by seeking asylum. He was later ordered removed by DHS without a hearing.

Vasconcelos is a citizen of Portugal and native of Angola who has resided in the United States since 1989. He last entered the country on June 25, 2012 at the port-of-entry at Champlain, New York on the Canada-United States border.

Issue

Whether the government may establish waiver of an alien's right to contest removal based on an ESTA record showing that a petitioner submitted an ESTA application and thereby certified waiver.

We are asked to decide whether the government may establish waiver based upon an ESTA record showing that a petitioner submitted an ESTA application and thereby certified waiver, or whether, as Vasconcelos urges, it must produce a physically signed I-94W.

Rule

The Visa Waiver Program allows eligible citizens to visit the U.S. for up to ninety days without a visa, provided they waive any right to contest removal other than by seeking asylum. An ESTA record is sufficient evidence of waiver.

The Visa Waiver Program ('VWP') allows eligible citizens and nationals of designated countries to visit the United States for up to ninety days without obtaining a visa, provided that they agree to waive any right to contest removal other than by seeking asylum. 8 U.S.C. 1187(a) , (b)(2).

Analysis

The court determined that an ESTA record is adequate to establish waiver, as it shows that Vasconcelos personally completed and submitted the application, thereby agreeing to waive his right to a hearing. The court noted that nothing in prior case law required a physically signed I-94W, and the ESTA record is presumed reliable as it is generated by public officials in the ordinary course of their duties.

We agree with the government that an ESTA record is sufficient to establish waiver. Nothing in Galluzzo requires the production of a physically signed I-94W, even under the pre-ESTA, paper-based system.

Conclusion

The court concluded that the petition was denied, affirming the agency's finding that Vasconcelos waived his right to a hearing by submitting an ESTA application.

Because the administrative record supports the agency's finding that Vasconcelos waived his right to a hearing by submitting an ESTA application and entering the United States pursuant to the VWP, the petition is DENIED.

Who won?

The government prevailed in the case because the court found that the ESTA record constituted sufficient evidence of waiver, supporting the agency's decision.

The government takes the view that Galluzzo is not determinative because it addresses the burden of proof under the pre-ESTA framework and, in any event, the ESTA record is 'explicit evidence of waiver,' 633 F.3d at 114, because it shows that Vasconcelos submitted an ESTA application and thereby certified that he waived any right to contest removal.

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