Submitted November 10, 2016 [*] Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A200-245-971
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.
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).
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.
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.
SCHROEDER, Circuit Judge.
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
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