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BRADLEY v. ATTORNEY GENERAL OF U.S.
603 F.3d 235 (2010)
Heathcliffe John BRADLEY, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
No. 08-4184.
United States Court of Appeals, Third Circuit.
Argued March 11, 2010.
Filed April 22, 2010.
Haroutyun Asatrian, Esq. (Argued), Strasser Asatrian, LLC, Newark, NJ, for Petitioner.
Michael F. Hertz, Acting Assistant Attorney General, Civil Division, Carl H. McIntyre, Jr., Assistant Director, Office of Immigration Litigation, Gary J. Newkirk, Esq. (Argued), Stephen F. Day, Esq., Justin R. Markel, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.
Before: AMBRO, SMITH and ALDISERT, Circuit Judges.
OPINION OF THE COURTALDISERT, Circuit Judge. Petitioner Heathcliffe John Bradley, a citizen and national of New Zealand, seeks review of a final removal order of the Department of Homeland Security, Immigration and Customs Enforcement ("the Department"). Bradley contends that the Department's removal order is void under Woodby v. INS,385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), because the record lacks "clear, unequivocal, and convincing evidence" that he waived his right to contest his removal under the Visa Waiver Program ("VWP"), 8 U.S.C. § 1187. Bradley additionally contends that he did not validly waive his right to contest his removal under the VWP because his waiver was not "knowing and voluntary." Finally, Bradley contends that, notwithstanding any VWP waiver, he may renew his application for a marriage-based
adjustment of status before an immigration judge. See 8 U.S.C. § 1255(c)(4). For the reasons that follow, we will deny his petition.1 I.Bradley arrived in the United States on August 28, 1996 without a valid non-immigrant visa, but was admitted under the VWP. Bradley represents that he was intoxicated when he arrived, and he claims to have little recollection of his admission. Nevertheless, Bradley's declaration establishes that, after his arrival, he signed a form, presented that form to a customs officer, and was admitted into the United States. According to Bradley, [u]pon my arrival at John F. Kennedy International Airport in New York, I was given a form to complete, which I vaguely recall completing or even signing for that matter. ... I handed the form to the Custom's agent, who waived me through after taking a part of my form, without any questions. (Bradley Decl. ¶¶ 18, 20 (errors in original).) According to his Form I-94W Departure Record, Bradley was authorized to remain in the United States for the 90-day period ending November 27, 1996. (App.2 8.) It is undisputed that Bradley remained in the United States beyond his authorized stay, and that he remains here still.
1. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), which permits us to review final orders of removal. Although some courts have suggested that 8 U.S.C. § 1187(b)(2) narrows our jurisdiction to review removal orders involving VWP entrants, see, e.g., Lacey v. Gonzales,499 F.3d 514, 519 (6th Cir.2007), we view § 1187(b)(2) as a substantive, rather than a jurisdictional, bar to a VWP entrant's ability to obtain relief from removal. In particular, § 1187(b)(2) does not appear to abrogate 8 U.S.C. § 1252(a)(2)(D), which provides that "[n]othing ... in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals." We are further persuaded that § 1187(b)(2) is not jurisdiction-stripping because it does not clearly and explicitly deprive federal courts of jurisdiction. See Calcano-Martinez v. INS,533 U.S. 348, 351-352, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001) (concluding that "Congress has not spoken with sufficient clarity to strip the district courts of jurisdiction to hear habeas petitions raising" claims not reviewable by petitions for direct review). Compare 8 U.S.C. § 1187(b)(2) (providing that a VWP entrant must "waive any right ... to contest ... any action for removal"), with, e.g., 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to review...."), 8 U.S.C. § 1252(a)(2)(A),(B) (same), and 8 U.S.C. § 1252(a)(5) ("For purposes of this Act, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms `judicial review' and `jurisdiction to review' include habeas corpus review... and review pursuant to any other provision of law (statutory or nonstatutory)."). In view of the "strong presumption in favor of judicial review of administrative action," INS v. St. Cyr,533 U.S. 289, 298, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), we do not believe that § 1187(b)(2) affects our jurisdiction to consider Bradley's claims. As we will explain, however, § 1187(b)(2) has a significant effect on Bradley's ability to pursue substantive relief from removal. 2. "App." refers to the petitioner's appendix, while "Resp't App." refers to the respondent's appendix. 3. The VWP's waiver provision states:
An alien may not be provided a waiver under the program unless the alien has waived any right— (1) to review or appeal under this Act of an immigration officer's determination as to the admissibility of the alien at the port of entry into the United States, or (2) to contest, other than on the basis of an application for asylum, any action for removal against the alien. 8 U.S.C. § 1187(b). 4. See also Khouzam v. Att'y Gen.,549 F.3d 235, 258 (3d Cir.2008); Wilson v. Ashcroft,350 F.3d 377, 381 (3d Cir.2003) (stating the rule in terms of "prejudice"). 5. The "adjustment of status" remedy permits the Attorney General, "in his discretion and under such regulations as he may prescribe," to adjust an alien's status to that of a lawful permanent resident if "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." 8 U.S.C. § 1255(a). 6. More precisely, 8 U.S.C. § 1255(c)(4) generally makes VWP entrants ineligible for the "adjustment of status" remedy, but carves out an exception for VWP entrants seeking to adjust their status on the basis of an immediate-relative petition. The term "immediate relative" includes the spouse of a U.S. citizen. See 8 U.S.C. § 1151(b)(2)(A)(I). 7. See Bayo v. Napolitano,593 F.3d 495, 507 (7th Cir.2010) (en banc); McCarthy v. Mukasey,555 F.3d 459, 462 (5th Cir.2009); Momeni v. Chertoff,521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales,444 F.3d 1031 (9th Cir.2006)); Zine v. Mukasey,517 F.3d 535, 543 (8th Cir.2008); Lacey v. Gonzales,499 F.3d 514, 519 (6th Cir.2007); Schmitt v. Maurer,451 F.3d 1092, 1097 (10th Cir.2006). 8. At oral argument and in a supplemental letter to this Court under Rule 28(j) of the Federal Rules of Appellate Procedure, Bradley raised the argument that certain regulations of the Department of State (namely, the so-called "30/60 day rule" found at 9 Foreign Affairs Manual 40.63 n. 4. 7-1 to 4.7-4) render § 1255(c)(4)'s adjustment of status provision a nullity for VWP entrants. This argument did not appear in Bradley's opening brief nor in his reply brief, and we deem it waived. See United States v. Pelullo,399 F.3d 197, 222 (3d Cir.2005) ("It is well settled that an appellant's failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal."); Lattab v. Ashcroft,384 F.3d 8, 17 (1st Cir.2004) (noting "[t]he usual rule, ... that new theories cannot be raised in a post-argument Rule 28(j) filing").
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