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Ferry v. Ashcroft, 10th Cir. (2006)
Ferry v. Ashcroft, 10th Cir. (2006)
Ferry v. Ashcroft, 10th Cir. (2006)
August 8, 2006
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
C IA RA N FER RY ,
Petitioner,
v.
Nos. 03-9526/04-9555
No. 05-1014
Eamonn D ornan of Smith, Dornan & Dehn, PC, New York, New York (Jeff
Joseph of Joseph Law Firm, PC, Denver, Colorado; Thomas J. Burke, Jr. of Jones
& Keller, D enver, Colorado, with him on the briefs) for Petitioner-A ppellant.
Carl H. M cIntyre, Jr., Senior Litigation Counsel, (Peter D. Keisler, Assistant
Attorney General; Richard M . Evans, Assistant Director, Office of Immigration
Litigation, with him on the briefs), United States Department of Justice,
W ashington, D.C., for Respondents-Appellees.
Before TA CH A, Chief Judge, SEYM OUR, and BR ISC OE, Circuit Judges.
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asylum. 1187(b)(2). Ferry remained in the United States long after the ninety
days he was authorized under the VW P had expired. Eventually, he filed for an
adjustment of status with the Department of Homeland Security (DHS) based
on his marriage to a United States Citizen. 1 On January 30, 2003, before a
decision w as rendered on Ferrys application for adjustment of status, the DH S
arrested Ferry 2 and issued an administrative order of removal on the basis that
Ferry had overstayed the ninety days authorized under the VW P. Ferry remained
in DHS custody for almost twenty-three months before he was deported to Ireland
on December 21, 2004.
The three consolidated appeals we consider here arise from several
procedural postures, but they all represent Ferrys efforts to challenge the DHSs
removal order and the validity of his prolonged detention, as well as his attempts
to obtain asylum, relief under the Convention Against Torture (CAT), and, most
importantly, an adjustment of status as the spouse of a United States citizen.
1
Specifically, Ferry petitions for review of the DHS district directors order of
removal under the VW P, Case No. 03-9526, and petitions for review of the Board
of Immigration Appeals (BIA) order which affirmed an Immigration Judges
(IJ) denial of asylum and relief under CAT, as well as the IJs refusal to
consider Ferrys application for adjustment of status on jurisdictional grounds,
Case No. 04-9555. 3 Ferry also appeals from the district courts denial of his
petition for habeas corpus under 28 U.S.C. 2241, Case No. 05-1014. 4 For the
reasons set forth below, we deny the petitions for review. As to the district
courts denial of habeas relief, we vacate the portion of the district courts
decision pertaining to Ferrys challenges to his administrative order of removal,
convert that portion of Ferrys habeas petition into a petition for review, and deny
the petition. As to the portion of the district courts decision pertaining to Ferrys
challenges to his detention, we affirm the district courts dismissal because
Ferrys claims are moot.
I. BAC KGRO U N D
Ferry is a native of Northern Ireland and a citizen of both the United
Kingdom and the Republic of Ireland. In 1992, Ferry joined the Irish Republican
Army (IRA). In M arch 1993, Ferry and two other IRA members drove to
Dublin, Ireland allegedly to participate in an IRA training camp. During the trip,
members of the Royal Ulster Constabulary (RUC), the police force in N orthern
Ireland from 1922 to 2001, stopped the vehicle and recovered two assault rifles
and several rounds of ammunition.
Ferry was charged with conspiracy to commit murder, possession of
w eapons with intent to endanger life or property, and possession of weapons. H e
was tried at the Crow n Court in Belfast, Northern Ireland, a non-jury court
system, and found guilty of the first two charges. The Crown Court imposed
concurrent sentences of twenty-two years on the conspiracy charge, and sixteen
years on the possession of weapons w ith intent to endanger life or property
charge, to be served at Long Kesh prison outside of Belfast. On July 18, 2000,
after seven years imprisonment, Ferry was released pursuant to the Good Friday
Agreement, signed on April 10, 1998, which called for the release of IRA
prisoners. On August 5, 2000, Ferry married Heaven Sheehan, a United States
C itizen, at the B elfast C ity H all. Shortly thereafter, Ferry claimed that the RUC
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informed him that his name was on the death list of loyalist paramilitary groups in
Northern Ireland.
On December 12, 2000, Ferry entered the United States under the VW P,
obtaining authorization to remain in the country until M arch 11, 2001. In
exchange for expedited entry under the VW P, Ferry executed a Nonimmigrant
V isa W aiver A rrival/D eparture Form (Form I-94W ). Admin. R. at 826-27. O n
the Form I-94W , Ferry waived his right to contest, other than on the basis of an
application for asylum, any action in deportation. See 8 U.S.C. 1187(b)(2).
Ferry also marked no in response to the question of whether he had ever been
arrested or convicted for an offense or crime involving moral turpitude . . . or
been arrested or convicted for two or more offenses for which the aggregate
sentence to confinement was five years or more . . . . See id. 1187(a)(6)
(requiring an alien admitted under the VW P not to represent a threat to the
welfare, health, safety, or security of the U nited States).
On M arch 5, 2002, almost a year after his VW P visa expired, Ferry filed a
Form I-485 application to adjust status and a Form I-765 request for employment
authorization with the DHS district office in Denver, Colorado. That same day,
Ferrys w ife filed a Form I-130 immediate relative visa petition. The DHS
granted Ferry a work permit, but the adjustment of status application and the
immediate relative petition remained pending.
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On January 30, 2003, the DHS scheduled an interview with Ferry and his
wife in Denver, Colorado, regarding his adjustment of status application and her
im mediate relative petition. When Ferry and his wife arrived for the interview,
DHS officials arrested Ferry. 5 On January 31, the DHS district director issued an
administrative order of removal, concluding that Ferry had overstayed under the
terms of his VW P visa. 6 Admin. R. at 2503. The order informed Ferry that
because he was admitted under the VW P, he could only contest the order of
removal by applying for asylum. Id. On February 4, after Ferry expressed
interest in applying for asylum, the DHS referred him to an immigration judge for
asylum-only proceedings. 7
On February 19, 2003, the DHS approved Ferrys wifes Form I-130
immediate relative visa petition. Admin. R. at 2703. However, on M ay 23, 2003,
the DHS district director denied Ferrys Form I-485 adjustment of status
Ferry did not actually file his asylum application until A pril 4, 2003.
Admin. R. at 2698.
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application. Id. at 822-25. The director reasoned that although Ferry was the
beneficiary of an approved Form I-130 petition filed by his spouse, the record
demonstrated that Ferry was inadmissible on two grounds. 8 First, the director
stated that Ferry remained convicted of conspiracy to comm it murder and of
possession of firearms with intent to endanger life. The director determined that
these crimes involved moral turpitude and were not purely political offenses. A s
a result, the director concluded that Ferry was inadmissible pursuant to 8 U.S.C.
1182(a)(2)(A)(i)(I). 9 Second, the director stated that Ferry was inadmissible
because when he entered the U nited States under the V W P, he failed to disclose
his criminal record on his Form I-94W . The director concluded that this failure
amounted to a willful misrepresentation of a material fact pursuant to 8 U.S.C.
1182(a)(6)(C )(i). 10 Lastly, the director ruled that notwithstanding these two
10
(...continued)
procured) a visa, other documentation, or admission into the United States or
other benefit provided under this Act is inadmissible. 8 U.S.C.
1182(a)(6)(C)(i).
11
Although Ferry argues otherwise, he has not filed a judicial action seeking
review of the DHSs denial of his application for adjustment of status. At most,
he filed challenges to the DHSs refusal to adjudicate and render a decision upon
his adjustment of status application. Thus, we have no opportunity to consider, as
a threshold matter, whether jurisdiction exists to review Ferrys argument that the
DHSs denial of his application for adjustment of status was arbitrary and
capricious. See 8 C.F.R. 1245.2(a)(5)(ii) (providing that [n]o appeal lies from
the denial of an application [for adjustment of status] by the director, but that the
applicant may renew the application in removal proceedings).
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That regulation classifies an alien who was admitted under the VW P and
has remained longer than authorized as an alien not entitled to [removal]
proceedings under section 240 of the Act [8 U.S.C. 1229a]. 8 C.F.R.
1208.2(c)(1)(iv).
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On M ay 6, 2004, the BIA affirmed the IJs decision. Id. at 2-5. First, the
BIA agreed that the IJ lacked jurisdiction over Ferrys application for adjustment
of status:
The regulation at 8 C.F.R. 1208.2(c)(3)(i) specifically provides that
in asylum only proceedings, the Immigration Judge may only
consider whether the alien is eligible for asylum, withholding or
deferral of removal, and whether the alien merits asylum in the
exercise of discretion. The regulation further prohibits parties to
asylum only proceedings from raising or considering any other
issues, including but not limited to issues of admissibility,
deportability, eligibility for waivers, and eligibility for any form of
relief.
App. at A34.
Second, the BIA affirmed the IJs denial of Ferrys application for asylum
and withholding of removal. The BIA agreed that Ferry untimely submitted his
asylum application. In particular, the BIA ruled that Ferrys allegations of
wrongdoing concerning the DHSs adjudication and denial of his adjustment of
status application failed to establish changed or exceptional circumstances to
excuse his delay in filing for asylum. The BIA also concluded that Ferry was
statutorily ineligible for withholding of removal because of his prior conviction
for a serious crime.
Finally, the BIA determined that Ferry was not entitled to relief under
CAT. The BIA reasoned that Ferry had failed to establish that the harm that he
fearedtorture or death resulting from his placement on a death listwould be
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immigration officials violated his due process rights by failing to adjudicate his
adjustment of status application and by denying him a right to release on bond or
to have a bond hearing. The district court concluded that because Ferry was
admitted under the VW P, he had waived any constitutional challenge to his
detention and removal. The district court also stated that because Ferry waived
his rights under the VW P, he had no right to be released on bond or to have a
bond hearing.
C. Case No. 03-9526
On M arch 3, 2003, Ferry filed a petition for review of the DHS district
directors January 31, 2003, administrative order of removal. Admin. R. at 246385. In addition to challenging the D HS district directors removal order, Ferry
raised arguments contesting the DHSs refusal to adjudicate his adjustment of
status application, the IJs refusal to consider his application for adjustment of
status based on jurisdictional grounds, and the IJs refusal to consider his request
to be released without bond.
II. D ISC USSIO N
A. Case No. 04-9555: Appeal of BIAs M ay 6, 2004 Decision
Ferry petitions for review of the BIAs determination that the IJ lacked
jurisdiction to consider his adjustment of status application, and the B IAs
affirmance of the IJs denial of his application for asylum and for relief under
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status.
W e review the BIAs legal determinations de novo. Elzour v. Ashcroft,
378 F.3d 1143, 1150 (10th Cir. 2004). W e also review constitutional challenges
to an immigration statute de novo. Jurado-Gutierrez v. Greene, 190 F.3d 1135,
1152 (10th Cir. 1999).
The V W Ps expedited procedure for entry into the United States furthers
Congress purposes of promoting better relations with friendly nations,
eliminating unnecessary barriers to travel, stimulating the travel industry, and
alleviating vast amounts of paperwork . . . . Handa v. Clark, 401 F.3d 1129,
1135 (9th Cir. 2005) (citation omitted). But to prevent an alien from abusing the
VW P, Congress required a VW P applicant to sign a waiver of rights to assure[]
that . . . [the alien] will leave on time and will not raise a host of legal and factual
claims to impede his removal if he overstays. Id. That waiver of rights, which
Ferry signed, waives any right . . . to contest, other than on the basis of an
application for asylum, any action for removal of the alien. 8 U.S.C.
1187(b)(2). Here, Ferry argues that he does not seek to contest the DHS district
directors removal order. Instead, Ferry maintains that he wants to cure the
order of removal through his statutory right to an adjustment of status. Ferrys
argument is merely semantic, and is without support under the applicable statutes
and regulations, or the law of this circuit.
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15
W e observe that the Ninth Circuit recently held that once a VW P entrant
[properly] files an adjustment of status application as an immediate relative, as
contemplated by 8 U.S.C. 1255(c)(4), the alien is entitled to the procedural
guarantees of the adjustment of status regime . . . , and is no longer subject to the
Visa W aiver Programs no-contest clause. Freeman v. Gonzales, 444 F.3d 1031,
(continued...)
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15
(...continued)
1033-34 (9th Cir. 2006). W e believe that Freeman is distinguishable on its facts
from our present case. Unlike Ferry and the petitioner in Schmitt, M rs. Freeman
filed her application for adjustment of status before her ninety-day VW P visa
expired. Id. at 1032-33 (emphasis added). As we stated in Schmitt, [d]uring the
first 90 days during which an alien is lawfully present in the United States under
the Visa W aiver Program, the alien may apply for adjustment of status without
any conflict arising between the two statutes [governing adjustment of status and
the VW P w aiver provision]. 451 F.3d at 1097. If we misinterpret Freeman and
the decision is not limited to adjustment of status applications filed before the
expiration of the aliens V W P visa, then we respectfully disagree with the Ninth
Circuits conclusion.
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the United States.) (emphasis added); Handa, 401 F.3d at 1134 (stating that
1187(b) does appear to otherwise specify). Further, the regulations state that
the scope of review in proceedings conducted under 8 C.F.R. 1208.2(c)(1)
shall be limited to a determination of whether the alien is eligible for asylum or
withholding or deferral of removal, and whether asylum shall be granted in the
exercise of discretion. 8 C.F.R. 1208.2(c)(3)(i); see also 8 C.F.R.
217.4(b)(1) (providing that the removal of an alien admitted under the VW P
shall be effected w ithout referral of the alien to an immigration judge for a
determination of deportability, except . . . [for] an alien who applies for asylum
in the United States).
It is evident under the applicable statutes and regulations that a VW P
alien who overstays his authorized time and is ordered removed has w aived his
right to contest that removal through an application for adjustment of status. See
Schmitt, 451 F.3d at 1096-97. Further, we hold that an alien who overstays his
authorized time under the VW P and files for an adjustment of status after he has
overstayed, but before the issuance of a removal order, has w aived his right to
contest a subsequent removal order through a renewed application for adjustment
of status, or to otherw ise seek review of the previously filed adjustment of status.
To conclude otherwise would frustrate Congress intent in establishing the VW P,
and would be contrary to the statutes and regulations governing an aliens right
to an adjustment of status. Id. at 1097. Accordingly, the BIA properly
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concluded that the IJ was without jurisdiction to consider Ferrys eligibility for
adjustment of status after he was ordered removed and referred to asylum-only
proceedings.
Similarly, we reject Ferrys claim that due process of law entitled him to a
hearing before an immigration judge for consideration of his adjustment of status
application. 16 The Fifth Amendments guarantee of due process of law is
applicable to aliens in removal proceedings. Reno v. Flores, 507 U.S. 292, 306
(1993) (citation omitted); see Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292 (10th
Cir. 2001) (stating that [w]hen facing deportation . . . aliens are entitled to
procedural due process, which provides an opportunity to be heard at a
meaningful time and in a meaningful manner) (internal quotations and citations
omitted). Even so, an aliens due process rights are subject to w aiver. See N ose
v. Attorney Gen., 993 F.2d 75, 78-79 (5th Cir. 1993) (concluding that the
plaintiff, an alien visitor under the VW P, knowingly and voluntarily waived her
right to a hearing before an immigration judge). On appeal, Ferry does not
16
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17
Real ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 302, codified on
M ay 11, 2005.
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1158(a)(2)(D). The statute further provides that [n]o court shall have
jurisdiction to review any determination of the Attorney General under [8 U.S.C.
1158(a)(2)]. 1158(a)(3). B efore the enactment of the Real ID Act, we
interpreted 1158(a)(3) to deprive us of jurisdiction to review the timeliness of
an application for asylum, or to review a determination as to whether changed or
extraordinary circumstances exist to excuse an untimely filing. Tsevegmid v.
Ashcroft, 318 F.3d 1226, 1229-30 (10th Cir. 2003).
W ith Congress passage of the Real ID Act, we now have jurisdiction to
review constitutional claims and questions of law , 18 U.S.C. 1252(a)(2)(D),
but challenges directed solely at the agencys discretionary and factual
determinations remain outside the scope of judicial review. Diallo v. Gonzales,
447 F.3d 1274, 1281 (10th Cir. 2006) (citing Chen v. U.S. Dept of Justice, 434
F.3d 144, 154 (2d Cir. 2006)). Ferrys argument that his pending adjustment of
status application qualified as either a changed or extraordinary circumstance to
excuse his untimely asylum application is a challenge to an exercise of discretion
that remains outside our scope of review. See Sukwanputra v. Gonzales, 434
F.3d 627, 635 (3rd Cir. 2006) (holding that despite the changes of the REAL ID
Act, 8 U.S.C. 1158(a)(3) continues to divest the court of appeals of jurisdiction
to review a decision regarding whether an alien established changed or
extraordinary circumstances that would excuse his untimely filing); Ignatova v.
Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (same); Ramadan v. Gonzales,
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427 F.3d 1218, 1222 (9th Cir. 2005) (same); Chacon-Botero v. United States
Attorney Gen., 427 F.3d 954, 957 (11th Cir. 2005) (same); Vasile v. Gonzales,
417 F.3d 766, 768-69 (7th C ir. 2005) (same). Accordingly, we conclude that we
lack jurisdiction to consider the BIAs denial of Ferrys untimely application for
asylum.
3. Convention Against Torture
Ferry seeks review of the BIAs conclusion that he did not qualify for
relief under CAT. W e review the BIAs factual findings under the substantial
evidence standard. Rivera-Jimenez v. INS, 214 F.3d 1213, 1216 (10th Cir.
2000). The BIAs findings of fact are conclusive unless the record demonstrates
that any reasonable adjudicator would be compelled to conclude to the
contrary. 8 U.S.C. 1252(b)(4)(B). Our role is not to re-weigh the evidence or
to evaluate the credibility of witnesses. Refahiyat v. INS, 29 F.3d 553, 556 (10th
Cir. 1994).
In order for Ferry to prevail under CAT, he must establish that it is more
likely than not that he would be tortured if he returned to the United Kingdom.
Sviridov v. Ashcroft, 358 F.3d 722, 729 (10th Cir. 2004); see 8 C.F.R.
1208.16(c)(2). Under CAT, torture is defined as:
[A]ny act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as
obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third
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that [t]he judicial inhibition against deciding moot questions is . . . not limited
to the field of declaratory judgments. M iller v. Udall, 368 F.2d 548, 548 (10th
Cir. 1966) (citation omitted). W e decline to issue an advisory opinion regarding
Ferrys entitlement to a bond hearing because a declaratory judgment on that
question would have no meaningful effect on the DHSs future conduct towards
Ferry. Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1266
(10th Cir. 2004).
C. Case No. 03-9526: Petition for Review of DHSs Removal Order
On M arch 3, 2003, Ferry filed a petition for review of the DHS district
directors January 31, 2003, administrative order of removal. Admin. R. at 246385. W e have jurisdiction to review the DHS district directors administrative
order of removal pursuant to 8 U.S.C. 1252(a). See Schmitt, 451 F.3d at 1095
(reviewing challenge to district directors issuance of a removal order under the
VW P). Notably, Ferry does not dispute that he overstayed his authorized time
under the VW P, or that his waiver was knowing and voluntary. Ferry instead
asserts that he w as denied the opportunity for review of the district directors
decision in an administrative proceeding. This argument is without merit. See
Handa, 401 F.3d at 1133 (W e do agree that when Handa signed the waiver, he
gave up the possibility of other forms of relief, as well as the opportunity to
challenge the m erits of a removal decision arising out of his VWP entry.)
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(emphasis added). Ferry also argues that the district director improperly ordered
him removed from the United States because, prior to the issuance of the removal
order, he had exercised his statutory right to file an application for adjustment of
status. For the reasons previously stated in Part II.A.1. of this opinion, we
conclude that Ferry was not entitled to contest the DHSs removal order through a
renewed application for adjustment of status, or to otherwise obtain review of the
DHSs denial of his application.
Ferrys petition for review also challenges the DHSs refusal to adjudicate
his adjustment of status application, the IJs refusal to consider his application for
adjustment of status based on jurisdictional grounds, and the IJs refusal to
consider his request to be released w ithout bond. W e quickly dispose of these
remaining claims. Ferrys argument that the DHS refused to render a decision on
his adjustment of status application is moot based on the D HS district directors
M ay 21, 2003, denial of Ferrys application for adjustment of status. Ferrys
argument that he was entitled to have the IJ review his adjustment of status
application is denied for the reasons stated in Part II.A.1. of this opinion. Lastly,
Ferrys claim that the IJ should have considered his request for a bond
determination is moot because, as stated in Part II.B. of this opinion, we are
unable to provide Ferry any meaningful relief because he has since been deported.
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