PETITION FOR REVIEW OF A FINAL ORDER OF THE DEPARTMENT OF
Anthony Marino, with whom Irish International Immigrant
Center was on brief, for petitioner.
L. Watson, Trial Attorney, Office of Immigration Litigation,
with whom Chad A. Readler, Acting Assistant Attorney General,
Civil Division, and Anthony P. Nicastro, Assistant Director,
Office of Immigration Litigation were on brief, for
Torruella, Selya, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
O'Riordan is an Irish citizen who had entered this
country as a child and had been living in the United States
for more than seven years when immigration officials
apprehended him. The government charged him with having been
admitted to this country via the Visa Waiver Program
("VWP") and having stayed here beyond the 90-day
period permitted by the visa that he secured through that
program. He now petitions for review of the administrative
order of removal that was issued in accord with the terms of
the VWP, after the government found that he had been admitted
to the United States through the VWP as a child and then
overstayed his visa. Although O'Riordan's
circumstances are most unfortunate, we conclude that we must
deny the petition.
allows "a qualifying visitor [to] enter the United
States without obtaining a visa, so long as a variety of
statutory and regulatory requirements are met."
Bradley v. Att'y Gen., 603 F.3d 235, 238 (3d
Cir. 2010) (citing 8 U.S.C. § 1187). The VWP is a
reciprocal waiver program, which means that "[a]n alien
may not be provided a waiver [of the visa requirement from
the United States government] under the program unless the
alien has waived 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). The VWP
allows the alien visitor, per their visa, to remain in the
United States for 90 days after entry. Id. §
to the VWP, an alien must sign an "I-94W, Nonimmigrant
Visa Waiver Arrival/Departure Form." 8 C.F.R. §
217.2(b)(1). The alien must also complete a travel
authorization under the Electronic System for Travel
Authorization ("ESTA"). See 8 C.F.R. § 217.5.
On this ESTA form, there are fields to indicate whether the
visitor has "Waived Rights" and whether the form
was filled out by a "Third Party."
is no I-94W waiver form related to O'Riordan's case
in the record. The record does contain an ESTA form
concerning his entry into the United States. That form, which
is dated June 10, 2010, indicates "Y" in the field
"Waived Rights" and "Y" in the field
"Third Party Indicator." O'Riordan was twelve
years old as of that date. At that time, his parents were
both lawful permanent residents of the United States.
the more than seven years in which O'Riordan thereafter
lived in the United States, he met Brenna Blanchette, a
United States citizen. He became engaged to her in January
2017 while she was pregnant with his child, who was born in
September 18, 2017, O'Riordan, then 19 years of age, was
taken into Department of Homeland Security ("DHS")
custody. The next day, he was served with a final
administrative order of removal. That order indicated that he
had waived his right "to contest, other than on the
basis of an application for asylum, any action for [his]
removal" through the VWP.
acknowledging service of the final order of removal,
O'Riordan declined to contest his removal on certain
grounds, such as U.S. citizen or lawful permanent resident
status, entry through means other than the VWP, or compliance
with the terms of the VWP. Instead, he indicated that he
wished to contest his removal on "Other" grounds
and explained that "I came here as a child not knowing
the consequences with my parents. I now have a [U.S. citizen]
child here in the United States who needs me." He also
indicated that he "wish[ed] to request Asylum,
Withholding or Deferral of Removal."
petitioned this court for review of his removal order on
October 6, 2017. The same day, O'Riordan moved in this
Court to stay his removal. That motion was denied.
O'Riordan then moved for reconsideration, but that motion
was denied as well.
O'Riordan indicated that he intended to seek asylum or
withholding of removal, he was put into withholding-only
removal proceedings on October 6, 2017. He moved to terminate
those proceedings on October 18, 2017. He explained that he
did "not understand the legal definitions of
'withholding' and 'deferral'" and so
"checked the box" to seek such relief on the
understanding that doing so would allow him to seek review of
petition for review in our Court and the withholding-only
proceedings were both pending when the government moved to
dismiss O'Riordan's petition for review for lack of
jurisdiction. The government did so on the ground that the
administrative order of removal was not final because the
withholding-only proceedings were ongoing.
withholding-only proceedings terminated while the
government's motion to dismiss the petition was pending
before us. As a result, the government moved to withdraw its
motion to dismiss for lack of jurisdiction. On November 9,
2017, we granted the government's motion to withdraw its
motion to dismiss.
November 28, 2017, DHS cancelled and reissued
O'Riordan's prior Final Order of Removal.
O'Riordan did not file a petition for review of that
order. Throughout this period, O'Riordan was detained
pending his removal.
December 18, 2017, after the entry of his final order of
removal, O'Riordan and Blanchette were married in a
prison chapel. O'Riordan was ...