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Riera-Riera v. Lynch

United States Court of Appeals, Ninth Circuit

November 28, 2016

Harold John Riera-Riera, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

          Submitted November 10, 2016 [*] Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-245-971

          Jorget T. Cabrera, Studio City, California, for Petitioner.

          Stefanie Notarino Hennes, Trial Attorney; Leslie McKay, Assistant Director; Joyce R. Branda, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and William E. Smith, [**] Chief District Judge.

         SUMMARY [***]

         Immigration

         The panel denied Harold Riera-Riera's petition for review of the Board of Immigration Appeals' decision refusing to consider his adjustment of status application because he entered the United States using a fraudulent Italian passport to gain the benefits of the Visa Waiver Program (VWP).

         The panel held as a matter of first impression that the BIA properly concluded that Riera-Riera could not seek adjustment because he entered, albeit fraudulently, under the VWP. The panel held that an alien who fraudulently enters under the VWP is subject to the VWP's limitations, including waiving any challenge to deportation other than asylum.

         The panel also held that the BIA did not err in denying Riera-Riera's applications for asylum, withholding of removal and relief under the Convention Against Torture, because he failed to establish a nexus to a protected ground, and the harm he suffered was insufficient for CAT protection.

          OPINION

          SCHROEDER, Circuit Judge.

         Petitioner Harold Riera-Riera, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals's ("BIA") refusal to consider his application for adjustment of status in proceedings limited to consideration of relief related to asylum. Riera had fraudulently entered the United States under an Italian passport in order to gain the benefits of the Visa Waiver Program ("VWP"), that carried with it a limitation of his rights to contest deportation. He argues that since he is not now, and never has been, an alien eligible for lawful admission under the VWP, he is not subject to its limitation. While this is an issue of first impression in this circuit, we now join the other circuits that have rejected a similar argument. Given VWP's limitation of relief available in deportation proceedings, the BIA properly refused to consider the application for adjustment of status. The denial of asylum and related relief, as well as the denial of the claim under the Convention Against Torture ("CAT"), were supported by substantial evidence. We therefore deny the petition.

         BACKGROUND

         We begin with the legal and factual background. The VWP allows certain aliens who are "[n]ational[s] of program countr[ies]" to enter the United States without a visa. 8 U.S.C. § 1187(a)(2). Admission under the VWP is subject to numerous restrictions, most relevant here are that the alien present a valid passport from a qualifying country that offers reciprocal rights to American citizens and that the alien present a return ticket for departure from the United States within ninety days. Id. Most importantly for this case, the VWP requires that the alien agree not to "review or appeal . . . an immigration officer's determination as to the admissibility of the alien at the port of entry into the United States" or "to contest, other than on the basis of an application for ...


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