09-0558-ag Shabaj v. Holder 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 August Term,…

09-0558-ag
Shabaj v. Holder
1 UNITED STATES COURT OF APPEALS
2
3 FOR THE SECOND CIRCUIT
4
5 August Term, 2009
6
7
(Argued: January 11, 2010 Decided: April 12, 2010) 8
9
Docket No. 09-0558-ag 10
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13
14 PAULIN SHABAJ,
15
Petitioner, 16
17
18 - v.-
19
ERIC H. HOLDER, JR., Attorney General 20
21 of the United States of America
22
Respondent. 23
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26
Before: JACOBS, Chief Judge, SACK and HALL, 27
28 Circuit Judges.
29
30 The Petitioner’s removal order was premised on his
31 entry as an Italian national under the Visa Waiver Program,
32 which waives any defense to removal other than asylum. He
33 petitions for review on the ground that, as an Albanian, he
34 was ineligible for the visa waiver. Since he attempted
35 entry using a fake passport from a Visa Waiver Program
36 nation, his removal was properly administered under that

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2
1 program, and his petition for review is therefore denied.
2
3 MICHAEL P. DiRAIMONDO
4 (Marialania L. Masi, Stacy A.
5 Huber on the brief), DiRaimondo
6 & Masi, LLP, Melville, New York,
7 for Petitioner.
8
9 ANDREW B. INSENGA (Daniel E.
10 Goldman, Tony West, on the
11 brief), U.S. Department of
12 Justice Office of Immigration
13 Litigation, Washington, D.C.,
for Respondent. 14
15
16 DENNIS JACOBS, Chief Judge:
17
18 Paulin Shabaj petitions for review of a January 26,
19 2009 removal order of the Department of Homeland Security
20 (“DHS”). Shabaj, a native and citizen of Albania, arrived
21 in the United States in November 2000 bearing a false
22 passport of Italy, whose citizens are eligible to enter the
23 United States under the Visa Waiver Program that allows
24 individuals from certain nations to visit the United States
25 without a visa for up to 90 days. See 8 U.S.C. § 1187(a).
26 On the flight here he signed a form I-94W Nonimmigrant Visa
27 Waiver Arrival/Departure Form using the name on his fake
28 Italian passport. Form I-94W specifies that in exchange for
29 the benefit of entering under the expedited process of the
30 Visa Waiver Program, the signing alien agrees to waive any

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The authority the government cites for the removal1
order is subsection (b) of 8 C.F.R. § 217.4, which concerns
persons who have been “admitted” under the Visa Waiver
Program. See 8 C.F.R. § 217.4(b)(1). 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 Shabaj has been “admitted” under Section 217. And the
only ground on which Shabaj challenges the jurisdiction of
the DHS officer who ordered his removal is that Shabaj was
not properly considered an applicant under the Visa Waiver
Program--which he assuredly was. Therefore, any other
argument on this point is waived, see Norton v. Sam’s Club,
3
1 right to challenge removability except by way of an asylum
2 claim.
3 When Shabaj was detained upon arrival, he sought asylum
4 and was referred to an Immigration Judge for an asylum-only
5 proceeding. See 8 U.S.C. § 1187(b)(2). Asylum was denied
6 on October 3, 2001; Shabaj’s appeal was denied by the BIA on
7 February 25, 2003; and his motions to reopen before the BIA
8 were denied on December 21, 2004 and March 10, 2005.
9 Within four months of the March 10 order, Shabaj
10 married a United States citizen, and twice applied for
11 status adjustments and waivers of inadmissibility; the
12 applications were denied. Upon the denial of the second
13 application on January 26, 2009, a final order of removal
14 was issued pursuant to 8 C.F.R. § 217.4(b).1

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145 F.3d 114, 117 (2d Cir. 1998), and would in any event be
futile.
The only remedy Shabaj 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. As Shabaj 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. Cf. Xiao Ji Chen v. U.S.
DOJ, 471 F.3d 315, 339 (2d Cir. 2006).
4
1 “We review the agency’s factual findings under the
2 substantial evidence standard, treating them as ‘conclusive
3 unless any reasonable adjudicator would be compelled to
4 conclude to the contrary.’” Bah v. Mukasey, 529 F.3d 99,
5 110 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). “We
6 review de novo questions of law and the application of law
7 to undisputed fact.” Bah, 529 F.3d at 110.
8 “Aliens admitted under [the Visa Waiver] [P]rogram
9 forfeit any right to challenge their removal, except that
10 they may apply for asylum.” Kanacevic v. INS, 448 F.3d 129,
11 133 (2d Cir. 2006) (citing 8 U.S.C. § 1187(b)). Aliens who
12 do not waive the right to review or contest removal “other
13 than on the basis of an application for asylum” “may not be
14 provided a waiver under the program.” 8 U.S.C. § 1187(b).
15 Shabaj argues that he was not an applicant under the
16 Visa Waiver Program because Albanians are ineligible for it,

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There is no reason to disturb the agency’s factual2
finding that Shabaj presented his fake Italian passport upon
landing, nor its conclusion that Shabaj properly waived his
right to get access to broader removal proceedings. To the
extent those are even necessary preconditions to considering
someone to be a Visa Waiver Program applicant, the agency
properly found them met.
5
1 see 8 U.S.C. § 1187(a), and that the order directing his
2 removal pursuant to the Visa Waiver Program statute
3 (permitting asylum-only removal proceedings) is “invalid and
4 unlawful.”
5 We hold that Shabaj is bound by the terms of the
6 program notwithstanding that he used a fraudulent passport
7 to obtain the benefit of expedited entry for which his
8 waiver was given quid pro quo. The regulation implementing2
9 the statute treats someone who applies under the Visa Waiver
10 Program using fraudulent papers as bound by its provisions:
11 An alien who applies for admission under the
12 provisions of section 217 of [the Visa Waiver
13 Program] . . . who is in possession of and
14 presents fraudulent or counterfeit travel
15 documents, will be refused admission into the
16 United States and removed. Such refusal and
17 removal shall be made . . . without referral of
18 the alien to an immigration judge for further
19 inquiry, examination, or hearing, except that an
20 alien who presents himself or herself as an
21 applicant for admission under section 217 of the
22 [the Visa Waiver Program] and applies for asylum
23 must be [afforded an asylum-only proceeding].
24
25 8 C.F.R. § 217.4(a)(1). As the DHS interprets this

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1 regulation, it is applicable to anyone who seeks admission
2 under the Visa Waiver Program using a passport from a nation
3 included in the Visa Waiver Program, whether the passport is
4 valid or bogus. See Zine v. Mukasey, 517 F.3d 535, 543 (8th
5 Cir. 2008); see also id. (“If [petitioner’s] interpretation
6 of the [Visa Waiver Program] were correct, ineligible aliens
7 who fraudulently abuse the Program would receive the
8 benefits of [Visa Waiver Program] entry but be free of the
9 Program’s restrictions.”).
10 This Court has held that someone in an analogous
11 factual situation was properly considered a Visa Waiver
12 Program applicant. In Kanacevic, the petitioner was a
13 citizen and national of a non-Visa Waiver Program nation who
14 arrived and displayed a fraudulent passport purporting to be
15 from a Visa Waiver Program nation. 448 F.3d at 132-33. We
16 held that, because asylum is the only remedy that could be
17 sought by a Visa Waiver Program applicant, the denial of the
18 petitioner’s asylum claim constituted a final order of
19 removal from which the petitioner could appeal. See id. at
20 133-35. This is an implicit ruling that someone in Shabaj’s
21 position--a fraudulent Visa Waiver Program applicant--is a
22 Visa Waiver Program applicant nevertheless.

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1 Shabaj was properly adjudicated as a Visa Waiver
2 Program applicant. He has received all the removal process
3 to which he was entitled, and was properly determined to be
4 removable. The petition for review is denied.

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