New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Immigration Petition to Alter Status and ICE Removal Order

Galluzzo v. Holder

Immigration Case Decided Second Circuit Court of Appeals January 26, 2011

Issue : Whether the due process rights of Galluzzo were violated when U.S. Immigration and Customs Enforcement (ICE) issued a removal order without affording him a hearing on the ground that he had waived any right to be hear when he entered the United States through the Visa Waiver Program?

Holding : Yes, due process rights were violated. In the absence of evidence of a waiver, Galluzzo’s due process rights were violated by his failure to receive a hearing. Remanded to allow Department of Homeland Security to determine whether Galuzzo was substantially prejudiced by this violation.

Facts : Galluzzo entered the United States on a 90 day tourist visa. The government argued that the I-94W form contains a waiver provision stating that a VWP entrant waives his right to hearing to contest removal; however, no I-94W form was submitted into the record.

Galluzzo stayed well past the 90 day permitted him. Three years later he attempted to adjust his immigration status. Galluzzo’s employer filed a Employment Certification Application and when the Department of Labor approved this filed a I-140 Immigrant Petition for Alien Worker form, which was approved.

Galluzzo then filed a I-485 Application to Register Permanent Resident or Adjust Status. Galluzzo later learned that his I-485 had been denied without a hearing. He was taken into custody by ICE and served with an Order of removal, which stated that he was removable because he overstayed his 90 day visa, his I-485 was denied and as a VWP entrant he had waived his right to contest removal. Galluzzo filed a petition with the Second Circuit Court of Appeals for review of his removal order challenging his removal order on the ground that he is eligible to adjust his immigration status.

Legal Discussion :

Although an alien’s constitutional rights are narrowly circumscribed prior to entry, “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” Landon v. Plasencia, 459 U.S. 21, 32 (1982)(citation omitted); see also Plyler v. Doe, 457 U.S. 202, 210 (1982).

Given that Galluzzo had a constitutional right to a hearing absent waiver and that the Government has submitted no explicit evidence of waiver, we must determine whether Galluzzo’s status as a VWP entrant alone is de facto proof that he waived his right to contest removal. The statute authorizing the VWP stipulates that “[a]n alien may not be provided a waiver under the [VWP] 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)(2).

We “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation marks omitted) (emphasis added). The record is silent as to whether the Form I-94W Departure Record Galluzzo filled out upon his entry actually advised Galluzzo that he would waive his right to a hearing to contest removal by entering the country through the VWP. More significantly, the record is likewise silent as to whether Galluzzo signed or otherwise agreed to waive his rights to contest removal.

Absent proof of a waiver, Galluzzo suffered a violation of his right to due process when he was denied the opportunity for a hearing prior to the issuance of the removal order.

“Parties claiming denial of due process in immigration cases must, in order to prevail, allege some cognizable prejudice fairly attributable to the challenged process.” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008). we remand to allow the Department of Homeland Security to make a determination as to prejudice. See I.N.S. v. Ventura, 537 U.S. 12, 16 (2002) (discussing a determination of asylum eligibility and

holding that “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation”).