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O'Riordan v. Barr

United States Court of Appeals, First Circuit

May 22, 2019

DYLAN O'RIORDAN, Petitioner,
v.
WILLIAM P. BARR, [*] Respondent.

          ON PETITION FOR REVIEW OF A FINAL ORDER OF THE DEPARTMENT OF HOMELAND SECURITY

          Anthony Marino, with whom Irish International Immigrant Center was on brief, for petitioner.

          Joanna 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 respondent.

          Before Torruella, Selya, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         Dylan 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.

         I.

         The VWP 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. § 1187(a)(1).

         Pursuant 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."

         There 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.

         During 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 this country.

         On 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.

         In 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."

         O'Riordan 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.

         Because 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 his removal.

         O'Riordan's 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.

         The 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.

         On 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.

         On 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 ...


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