Shabaj v. Holder, 09-0558-ag (2nd Cir. April 12, 2010).

This court reviews the agency’s factual findings under the substantial evidence standard, treating them as conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary and this court reviews de novo questions of law and the application of law to undisputed fact.

Aliens admitted under the Visa Waiver Program forfeit any right to challenge their removal, except that they may apply for asylum. Aliens who do not waive the right to review or contest removal other than on the basis of an application for asylum may not be provided a waiver under the program.

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 the petitioner has been “admitted” under Section 217. And the only ground on which the petitioner challenges the jurisdiction of the DHS officer who ordered his removal is that the petitioner was not properly considered an applicant under the Visa Waiver
Program--which he assuredly was. Therefore, any other argument on this point is waived.

Because the only remedy the petitioner 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, and because the petitioner 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.

The regulation implementing the Visa Waiver Program statute treats someone who applies under the Visa Waiver Program using fraudulent papers as bound by its provisions. As the DHS interprets this regulation, it is applicable to anyone who seeks admission under the Visa Waiver Program using a passport from a nation included in the Visa Waiver Program, whether the passport is valid or bogus. This court therefore holds that the petitioner, a native and citizen of Albania arriving in the United States in November 2000 bearing a false Italian passport, is bound by the terms of the program notwithstanding that he used a fraudulent passport to obtain the benefit of expedited entry for which his waiver was given quid pro quo.

This Court has previously held someone in an analogous factual situation to be properly considered a Visa Waiver Program applicant. In Kanacevic, the petitioner was a citizen and national of a non-Visa Waiver Program nation who arrived and displayed a fraudulent passport purporting to be from a Visa Waiver Program nation. This court held that, because asylum is the only remedy that could be sought by a Visa Waiver Program applicant, the denial of the petitioner’s asylum claim constituted a final order of removal from which the petitioner could appeal. This is an implicit ruling that someone in the position of the petitioner of the instant case--a fraudulent Visa Waiver Program applicant--is a Visa Waiver Program applicant nevertheless. The petitioner was therefore properly adjudicated as a Visa Waiver Program applicant and he has received all the removal process to which he was entitled, and was properly determined to be removable. Accordingly, the petition for review is denied.