Gentian Hajdari v. Eric H. Holder, Jr., Attorney General

United States Court of Appeals
For the First Circuit
No. 11-1145
GENTIAN HAJDARI,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin and Lipez, Circuit Judges,
and Smith, District Judge. *
Desmond P. FitzGerald and FitzGerald & Company, LLC on brief
for petitioner.
Imran R. Zaidi, Office of Immigration Litigation, Department
of Justice, Tony West, Assistant Attorney General, Civil Division,
and Stephen J. Flynn, Assistant Director, on brief for respondent.
December 5, 2011
Of the District of Rhode Island, sitting by designation. *

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Per Curiam. Gentian Hajdari is a native and citizen of
Albania who entered the United States on a fraudulent Italian
passport in December 2004. Italy participates in the Visa Waiver
Program ("VWP"), which waives the visa requirement for entry into
the United States for citizens of certain countries. 8 U.S.C. §
1187(a) (2006). The program requires that anyone invoking this
exemption to enter the United States also waive any right "to
contest, other than on the basis of an application for asylum, any
action for removal." Id. § 1187(b)(2).1
Hajdari was arrested at the airport on arrival in the
United States; thereafter, in subsequent criminal proceedings, he
pled guilty to false use of a passport, and he then applied for
asylum, withholding of removal and protection under the Convention
Against Torture ("CAT"). The gist of the asylum claim was physical
abuse Hajdari had allegedly suffered based on his support of the
Democratic Party in Albania. The Immigration Judge ("IJ") rejected
the asylum claim on the merits, the Board of Immigration Appeals
("Board") upheld the decision, and this court affirmed.
After the Board's decision but before ours, Hajdari
sought--about eight months outside the required ninety-day window
for such motions, 8 C.F.R. § 1003.2(c)(2)--to reopen the removal
Although Albania is not a participant in the VWP, regulations 1
provide that the waiver requirement apply to those falsely
purporting to be citizens of a covered country. 8 C.F.R. § 217.4
(2011).
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proceedings. Hajdari's claim was that when his attorney had 2
reviewed the certified administrative record in connection with the
appeal of the asylum claim to this court, he found "new evidence"
indicating that the IJ had lacked jurisdiction because Hajdari's
"case was improperly initiated."
The argument was that Hajdari "immediately . . .
withdrew" his application for entry, so (counsel argued) he could
not be considered a VWP applicant, but rather should have been
placed in removal proceedings. The Board denied the motion; it
pointed out that during the administrative proceeding rejecting his
asylum application, Hajdari had never argued that he was entitled
to contest his removal on grounds other than persecution.
Unlike his original motion to reopen, Hajdari's brief in
this court does not phrase his present claim as one challenging
jurisdiction. Rather, Hajdari reframes his argument, focusing on
the form he signed as a waiver applicant explicitly waiving any
right to contest removal on any grounds other than asylum; the
form, he says, was in English and not translated to him. Thus, he
argues, the waiver was not knowing and voluntary and under due
process principles cannot be held against him. This violation was
The regulations provide that the Board may grant an 2
out-of-time motion to reopen only if it contains new facts that are
material and were not available and could not have been discovered
or presented at the former hearing. 8 C.F.R. § 1003.2(c)(1).
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compounded, he says, when the IJ announced that the proceedings
were "asylum only" before Hajdari and his attorney were present.
If Hajdari did not know the proceeding was restricted,
one might have expected him to have asserted other grounds for
resisting removal if any existed. Anyway, if he had any such
ground and wanted to challenge his waiver, the time to do so was in
the original proceedings and not by motion to reopen. See note 2,
above. Even now, Hajdari does not deny he sought to enter the
country without a proper visa and using a fraudulent passport, so
it is not evident what possible ground he had for resisting removal
apart from an asylum claim.3
Hajdari points to a March 11, 2009, "Notice of
Correction" he filed with the Board (after his appeal was filed
with the Board but before it rendered its decision), which said
that a notice issued by the Board improperly indicated that
Hajdari's was an "asylum only" appeal. Hajdari now says that this
is evidence of his due diligence; instead, it confirms that the
germ of his present claim was known to him before the Board's final
decision but was never pressed.
The petition for review is denied.
He includes a naturalization certificate from his father 3
dated September 2009. But that such a remedy is now unavailable to
him is not a result of the alleged due process violation but of his
initial illegal entry into the country.
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