Filed: Nov. 02, 2016
Latest Update: Mar. 03, 2020
Summary: 15-1308 Vasconcelos v. Lynch In the United States Court of Appeals For the Second Circuit _ August Term, 2015 No. 15-1308-ag RUI GILBERTO ENES DE VASCONCELOS, Petitioner, v. LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, Respondent. _ Petition for Review of a Final Order of the Department of Homeland Security _ Argued: May 18, 2016 Decided: November 2, 2016 _ Before: KEARSE, JACOBS, and PARKER, Circuit Judges. _ No. 15-1308 Rui Gilberto Enes de Vasconcelos, a citizen of Portugal and native
Summary: 15-1308 Vasconcelos v. Lynch In the United States Court of Appeals For the Second Circuit _ August Term, 2015 No. 15-1308-ag RUI GILBERTO ENES DE VASCONCELOS, Petitioner, v. LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, Respondent. _ Petition for Review of a Final Order of the Department of Homeland Security _ Argued: May 18, 2016 Decided: November 2, 2016 _ Before: KEARSE, JACOBS, and PARKER, Circuit Judges. _ No. 15-1308 Rui Gilberto Enes de Vasconcelos, a citizen of Portugal and native o..
More
15‐1308
Vasconcelos v. Lynch
In the
United States Court of Appeals
For the Second Circuit
________
August Term, 2015
No. 15‐1308‐ag
RUI GILBERTO ENES DE VASCONCELOS,
Petitioner,
v.
LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,
Respondent.
________
Petition for Review of a Final Order of the Department of Homeland
Security
________
Argued: May 18, 2016
Decided: November 2, 2016
________
Before: KEARSE, JACOBS, and PARKER, Circuit Judges.
________
No. 15‐1308
Rui Gilberto Enes de Vasconcelos, a citizen of Portugal and
native of Angola, petitions for review of a removal order issued by
the Department of Homeland Security without a hearing on the
ground that he waived the right to contest removal by submitting
via the Electronic System for Travel Authorization (“ESTA”) an
application to participate in the Visa Waiver Program (“VWP”), 8
U.S.C. § 1187, and subsequently entering the United States pursuant
to the program. The ESTA makes available online the I‐94W
Nonimmigrant Visa Waiver Arrival/Departure Record Form, which
memorializes the terms of the program and contains a certification
that the applicant waives any right to a hearing. We are asked to
decide whether the government may establish waiver based upon an
ESTA record showing that a petitioner submitted an ESTA
application and thereby certified waiver, or whether, as Vasconcelos
urges, it must produce a physically signed I‐94W. We hold that an
ESTA record is sufficient to establish waiver. Because the
administrative record supports the agency’s finding that
Vasconcelos waived his right to a hearing by submitting an ESTA
application and entering the United States pursuant to the VWP, the
petition is DENIED.
________
PAUL B. GROTAS, New York, N.Y., for Petitioner.
JAMIE DOWD (Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Anthony P.
Nicastro, Acting Assistant Director, Tracey N.
McDonald, Trial Attorney, Office of Immigration
Litigation, Department of Justice, Washington,
D.C., on the brief), for Respondent.
________
2
No. 15‐1308
BARRINGTON D. PARKER, Circuit Judge:
The Visa Waiver Program (“VWP”) allows eligible citizens
and nationals of designated countries to visit the United States for
up to ninety days without obtaining a visa, provided that they agree
to waive any right to contest removal other than by seeking asylum.
8 U.S.C. § 1187(a), (b)(2). Prior to 2009, the Department of Homeland
Security (“DHS”) required applicants to complete and physically
sign the I‐94W Nonimmigrant Visa Waiver Arrival/Departure
Record Form, which memorializes the terms of the program and
contains a certification that the applicant waives any right to a
hearing. In response to legislation designed to modernize and
strengthen the security of the VWP, DHS developed the Electronic
System for Travel Authorization (“ESTA”), which makes the I‐94W
available online and enables applicants to receive an automated
determination of eligibility in advance of travel.
Rui Gilberto Enes de Vasconcelos was ordered removed by
DHS without the benefit of a hearing on the ground that he waived
the right to challenge removal by submitting an ESTA application
and subsequently entering the country pursuant to the VWP. We
are asked to decide whether the government may establish waiver
based upon an ESTA record showing that a petitioner submitted an
ESTA application and thereby certified waiver, or whether, as
Vasconcelos urges, it must produce a physically signed I‐94W. We
hold that an ESTA record is sufficient evidence of waiver. Because
the administrative record supports the agency’s finding that
Vasconcelos waived his right to a hearing by submitting an ESTA
application and entering the United States pursuant to the VWP, the
petition is DENIED.
3
No. 15‐1308
BACKGROUND
Vasconcelos is a citizen of Portugal and native of Angola who
has resided in the United States since 1989. He last entered the
country on June 25, 2012 at the port‐of‐entry at Champlain, New
York on the Canada‐United States border. Although the
circumstances of his admission are disputed, an ESTA computer‐
generated record indicates that, approximately two months earlier,
he submitted via the ESTA an application to participate in the VWP,
in which he provided biographical, passport, and other information
necessary to determine his eligibility. The ESTA record also contains
an “N” notation next to the field “Third Party Indicator” and a “Y”
notation next to the field “Waived Rights,” reflecting that
Vasconcelos personally filled out and submitted the form and
certified that, by participating in the program, he waived any right
to challenge removal except by seeking asylum. Admin. R. at 3.
In October 2014, while incarcerated at the Nassau County
Correctional Center in East Meadow, New York for failing to pay
child support, Vasconcelos was interviewed by an immigration
officer. In connection with the interview, he submitted a sworn
affidavit acknowledging that he had last entered the United States in
June 2012 at the “New York/Canadian border, by bus,” using a
“Portuguese passport.” Admin. R. at 14. An “I‐94 Arrival
Record”confirmed that he had entered the country on June 25, 2012
as a “Visa Waiver/Tourist (WT)” with an admission expiration date
of September 23, 2012. Admin. R. at 44. Based upon this
information, the immigration officer concluded that Vasconcelos had
entered the United States at Champlain, New York on June 25, 2012
“as a non‐immigrant Waiver Tourist (WT) under the Visa Waiver
Program (VWP) for a temporary period not to exceed September 23,
4
No. 15‐1308
2012” and was removable for failing to depart by that date. Admin.
R. at 7. On March 27, 2015, Vasconcelos was served with an arrest
warrant and order of removal that reiterated the immigration
officer’s findings and noted that he had “waived [his] right to
contest any action for removal, except to apply for asylum, having
applied for admission under [the VWP].” Admin. R. at 12.
Vasconcelos timely petitioned for review.
DISCUSSION
We have jurisdiction over final orders of removal, 8 U.S.C.
§ 1252(a)(1), and may review such orders issued pursuant to § 1187
for the purpose of determining whether the VWP’s statutory criteria
have been satisfied, see, e.g., Gjerjaj v. Holder, 691 F.3d 288, 292–93 (2d
Cir. 2012). We review the agency’s factual findings for substantial
evidence and will set them aside only if “any reasonable adjudicator
would be compelled to conclude to the contrary.” Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir. 2008) (quoting 8 U.S.C. § 1252(b)(4)(B)). Our
consideration of questions of law and the application of law to
undisputed facts is de novo. See Shabaj v. Holder, 602 F.3d 103, 105 (2d
Cir. 2010).
I.
Congress established the VWP in 1986 to facilitate
international travel and tourism, improve relations with friendly
nations, and reduce the administrative burdens that result from
unnecessary visa processing by authorizing the Attorney General
and the Secretary of State to waive the visa requirement for
nonimmigrant aliens who meet certain statutory requisites. See 8
U.S.C. § 1187(a); H.R. Rep. No. 99–682, pt. I, at 50 (1986), reprinted in
1986 U.S.C.C.A.N. 5649, 5654. To be eligible to participate in the
5
No. 15‐1308
program, a person must, among other things, be a citizen or national
of a designated country who is in possession of a valid, unexpired
passport, does not present a threat to national security, and promises
to depart the country within ninety days of entry. 8 U.S.C.
§ 1187(a)(1)–(3), (6).1 Participants also must agree to waive any right
“to contest, other than on the basis of an application for asylum, any
action for removal.” Id. § 1187(b)(2). If a VWP entrant fails to leave
the country within the ninety‐day time frame (or becomes
removable for some other reason), the DHS district director for the
jurisdiction in which he is located may order him removed without
referring him to an immigration judge for a hearing. 8 C.F.R.
§§ 217.4(b), 1208.2(c)(iv). Because a continuously present resident
alien has a constitutional right to a pre‐removal hearing, e.g., Landon
v. Plasencia, 459 U.S. 21, 32 (1982), the waiver of that right acts as the
“linchpin of the program,” Handa v. Clark, 401 F.3d 1129, 1135 (9th
Cir. 2005), ensuring that the statute accomplishes “Congress’s goal of
allowing VWP participants expeditious entry into the country but
streamlining their removal,” Gjerjaj, 691 F.3d at 293.
Before 2009, applicants were required to present upon arrival
a “completed, signed Form I‐94W,” which memorializes the terms of
the program and collects biographical and other information
necessary to determine eligibility. 8 C.F.R. § 217.2(b)(1); Bayo v.
Napolitano, 593 F.3d 495, 499 (7th Cir. 2010) (en banc). The I‐94W
also contains a certification that the applicant “hereby waive[s] any
right[] . . . to contest, other than on the basis of an application for
asylum, any action in deportation.”2 In Galluzzo v. Holder, we held
1
Portugal is among the thirty‐six designated countries. 8 C.F.R. § 217.2(a).
2
U.S. Customs and Border Protection, Form I‐94W Nonimmigrant Visa Waiver
Arrival/Departure Record, available at
https://www.cbp.gov/sites/default/files/documents/%20I‐94W%20English%20%2811‐11
6
No. 15‐1308
that because “we indulge every reasonable presumption against
waiver of fundamental constitutional rights,” the government
cannot rely solely upon a person’s status as a VWP entrant to show
that he waived his right to a hearing, but rather must offer “explicit
evidence of waiver.” 633 F.3d 111, 114–15 (2d Cir. 2011) (citation
omitted) (emphasis removed). A physically signed I‐94W thus
played a central role in the program’s operation.
In the wake of the terrorist attacks on the United States on
September 11, 2001, Congress passed the Implementing
Recommendations of the 9/11 Commission Act of 2007, Pub. L. No.
110–53, 121 Stat. 266, in order to “modernize and strengthen the
security of the visa waiver program.” 121 Stat. 266 § 711(b), 121 Stat.
at 338. Unlike visitors who obtain a visa at a consular post overseas
before traveling, VWP participants were not screened for entry until
they arrived in the United States. See Changes to the Visa Waiver
Program to Implement the Electronic System for Travel
Authorization (ESTA) Program, 73 Fed. Reg. 32,440, 32,441–42 (June
9, 2008). As a result, thousands were turned away at the port‐of‐
entry annually, “causing significant expense, delay, and
inconvenience for those aliens, other travelers, and the U.S.
government.” Id. at 32,442. In addition, the security vulnerabilities
of such a system created a risk that terrorists and other criminal
actors might exploit the program to enter the country. Privacy Act
of 1974; Department of Homeland Security/U.S. Customs and Border
Protection (DHS/CBP)–009 Electronic System for Travel
Authorization (ESTA) System of Records, 79 Fed. Reg. 65,414, 65,414
(Nov. 4, 2014). To address these concerns, the 9/11 Commission Act
requires the Secretary of Homeland Security, in consultation with
%29%20FINAL%20%28reference%20only%29.pdf (last visited October 26, 2016).
7
No. 15‐1308
the Secretary of State, to develop and implement a “fully automated
electronic travel authorization system . . . to collect such biographical
and other information as the Secretary . . . determines necessary to
determine, in advance of travel, the eligibility of, and whether there
exists a law enforcement or security risk in permitting, the alien to
travel to the United States.” 121 Stat. 266, § 711(d)(1)(E), 121 Stat. at
344 (adding 8 U.S.C. § 1187(h)(3)(A)). The Act further provides that
“each alien traveling under the [VWP] shall, before applying for
admission to the United States, electronically provide to the system”
such information. Id. § 711(d)(1)(A)(ii), 121 Stat. at 341 (adding 8
U.S.C. § 1187(a)(11)).
Pursuant to these directives, DHS developed and
implemented the ESTA, which makes the I‐94W available online in
twenty‐two languages and enables applicants to receive an
automated determination of eligibility prior to travel. See Official
ESTA Application,
https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1;
Changes to the Visa Waiver Program to Implement the Electronic
System for Travel Authorization (ESTA) Program and the Fee for
Use of the System, 80 Fed. Reg. 32,267, 32,269 (June 8, 2015) (“ESTA
provide[s] for an automated collection of the information required
on the Form I‐94W . . . paper form . . . in advance of travel.”). Under
the new system, applicants who intend to travel by air or sea must
submit an ESTA application and receive a travel authorization
before departing to the United States. Id. at 32,267. Applicants who
enter the country by land currently need not submit an ESTA
application, but if they have an approved ESTA, they may bypass
the requirement of completing a paper I‐94W at the port‐of‐entry.
See Frequently Asked Questions,
8
No. 15‐1308
https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1.
Information submitted via the ESTA is checked against security and
law enforcement databases and stored in the system to satisfy the I‐
94W retention requirement. See Privacy Act of 1974; Department of
Homeland Security, U.S. Customs and Border Protection – Electronic
System for Travel Authorization (ESTA), Systems of Records, 73 Fed.
Reg. 32,720, 32,720 (June 10, 2008). An authorization to travel is
valid for two years, or until the applicant’s passport expires, and
may be used repeatedly during that time. 8 C.F.R. § 217.5(d)(1); The
Electronic System for Travel Authorization: Mandatory Compliance
Required for Travel Under the Visa Waiver Program, 73 Fed. Reg.
67,354, 67,354 (Nov. 13, 2008). Although an approved ESTA
expedites the admission process, a determination of eligibility does
not mean that a person is admissible; that determination is instead
made, as under the pre‐ESTA framework, by a Customs and Border
Protection officer at the port‐of‐entry. 8 U.S.C. § 1187(h)(3)(C)(ii); 8
C.F.R. § 217.5(f)(1).
II.
This petition requires us to resolve whether the government
may establish waiver based upon an ESTA record. Vasconcelos
contends that, under Galluzzo, the government must obtain a
physically signed I‐94W, notwithstanding the implementation of the
new electronic system. The government takes the view that Galluzzo
is not determinative because it addresses the burden of proof under
the pre‐ESTA framework and, in any event, the ESTA record is
“explicit evidence of waiver,” 633 F.3d at 114, because it shows that
Vasconcelos submitted an ESTA application and thereby certified
that he waived any right to contest removal.
9
No. 15‐1308
We agree with the government that an ESTA record is
sufficient to establish waiver. Nothing in Galluzzo requires the
production of a physically signed I‐94W, even under the pre‐ESTA,
paper‐based system. On the contrary, we reasoned that the
government had failed to demonstrate waiver because the record
was “silent as to whether Galluzzo signed or otherwise agreed to
waive his rights to contest removal.” Id. at 115 (emphasis added); cf.
Bradley v. Att’y Gen., 603 F.3d 235, 237‐239 (3d Cir. 2010) (finding
sufficient evidence of waiver where the petitioner admitted in a
declaration that he had signed a form, presented it to a customs
officer, and was then admitted into the United States, and the record
contained the relevant portion of a handwritten Form I‐94W with
Bradley’s name and date of birth, and the stamped date on which
Bradley was admitted). Here, the ESTA record shows that
Vasconcelos personally completed and submitted the application
and thereby agreed that he waived the right to a hearing. As a
record generated by public officials in the ordinary course of their
duties, it is presumed reliable and may serve as competent evidence
in immigration proceedings. See, e.g., Felzcerek v. I.N.S., 75 F.3d 112,
117 (2d Cir. 1996) (citing Fed. R. Evid. 803(8) to justify reliance on
Form I‐213).
In any event, we had no occasion in Galluzzo to consider what
proof of waiver would be appropriate under an electronic
application system, and we see no constitutional basis for
categorically prohibiting the electronic waiver of rights. See, e.g.,
United States v. Luja, 448 F.3d 86, 88–89, 92–93 (1st Cir. 2006)
(rejecting the notion that the defendant’s waiver of her right to a jury
trial, effected through counsel’s electronic signature, was invalid).
Indeed, the only other court of appeals to consider the issue
10
No. 15‐1308
summarily found that the ESTA’s electronic waiver was valid. See
Cho v. Att’y Gen., 606 F. App’x 574, 575 (11th Cir. 2015) (per curiam).
We also did not consider in Galluzzo the implications of the 9/11
Commission Act, which was passed, as noted, to modernize and
strengthen the security of the VWP by requiring the Secretary to
“develop and implement a fully automated electronic travel
authorization system,” 8 U.S.C. § 1187(h)(3)(A) (emphasis added),
that enables DHS to collect from all applicants the information
necessary to determine their eligibility and security risk in advance
of travel, see id. § 1187(a)(11). Pursuant to the Act, DHS has included
in the ESTA application a certification of waiver – a key requirement
for determining eligibility. Were the government precluded from
relying upon the ESTA’s electronic certification of waiver, it would
be impossible for DHS to implement the system envisioned by
Congress. Vasconcelos fails to persuade us that the use of electronic
certification of waiver such as the one at issue here warrants
upending the statutory framework.
Because our case law does not foreclose the use of electronic
waiver, we hold that an ESTA record showing that a petitioner
submitted an ESTA application and thereby certified that he waived
his right to a hearing is sufficient to establish waiver. That does not
mean, of course, that an ESTA record is invariably conclusive
evidence of waiver. While records generated by public officials in
the ordinary course of their duties are presumed reliable, that
presumption may be rebutted by evidence that “the sources of
information or other circumstances indicate a lack of
trustworthiness,” or by evidence that contradicts or impeaches the
record’s contents. E.g., Felzcerek, 75 F.3d at 117 (quoting Fed. R. Evid.
803(8)). Vasconcelos gives us little reason, however, to doubt the
11
No. 15‐1308
reliability of the ESTA record in this case. Although he claims that
the government should not be permitted to rely on a “self‐serving”
computer record, Pet’r’s Br. at 11, the fact that the record supports
the government’s position is irrelevant to its reliability.
Unable to undermine the ESTA record itself, Vasconcelos
contends that even if he submitted an ESTA application in which he
waived his right to a hearing, he is not constrained by the strictures
of the VWP because he did not gain admission to the country
pursuant to the program. We recognize that Vasconcelos might not
be bound by his waiver if he did not receive the benefit of expedited
admission. See Gjerjaj, 691 F.3d at 292 (“The VWP offers aliens the
benefit of expedited entry as a quid pro quo in exchange for a waiver
of rights.”) (internal quotation marks omitted). We believe,
however, that the agency’s determination that he entered the
country pursuant to the program based upon his ESTA application
is supported by substantial evidence. The ESTA record shows that
Vasconcelos submitted an application approximately two months
before he was admitted on June 25, 2012, Vasconcelos affirmed that
he was able to gain entry to the country with a “Portuguese
passport” alone, Admin. R. at 14, and the I‐94 Arrival Record
indicates that he was logged upon arrival as a “Visa
Waiver/Tourist,” Admin. R. at 44.
Vasconcelos’s efforts to undercut the agency’s finding do not
convince us otherwise. He argues that his ESTA application could
not have been approved because it is missing certain requested
information, including a foreign address, an address in the United
States where he would be residing, a phone number, and airline and
flight information. But because none of the missing information is
12
No. 15‐1308
statutorily required to determine eligibility, it is unclear whether
approval was contingent upon its inclusion, and we cannot say on
the basis of these omissions that the application could not have been
approved. Vasconcelos also surmises that his application in fact was
not approved because the ESTA record includes the notation
“Expired” next to the field “Application Status.” Admin. R. at 3.
That notation, however, merely reflects that on the date on which
the ESTA record was retrieved from DHS’s database (June 16, 2015),
more than two years had passed since Vasconcelos’s application had
been approved. See Privacy Act of 1974; Department of Homeland
Security, U.S. Customs and Border Protection – Electronic System for
Travel Authorization (ESTA), Systems of Records, 73 Fed. Reg.
32,720, 32,724 (June 10, 2008).
Along the same lines, Vasconcelos claims that he could not
have participated in the VWP because the administrative record
does not contain a copy of his passport and a round‐trip ticket, both
of which are, in his view, statutory prerequisites for participating in
the program. But we have never required the government to retain
proof that a petitioner satisfied each of the statute’s numerous
requirements for participation at the time of entry. Quite the
opposite, we have recognized that a waiver is binding on a person
who gains admission under the VWP even if they were ineligible to
participate in the program in the first place. See Shabaj, 602 F.3d at
105–06. At any rate, the record shows that Vasconcelos had a valid,
unexpired passport at the time of entry, as the ESTA record includes
his passport information and he confirmed in his sworn affidavit
that he was able to enter the country using a “Portuguese passport.”
Admin. R. at 14. And although the record does not indicate that
Vasconcelos had a round‐trip ticket, the Secretary has waived that
13
No. 15‐1308
requirement for participants who, like him, enter the country by
land. See 8 U.S.C. § 1187(a)(8); 8 C.F.R. § 217.2(c)(2).
Citing DHS regulations, Vasconcelos alternatively asserts that
he could not have participated in the VWP based upon his ESTA
application because, as a person arriving by land, he was ineligible
to use the electronic system and was required to physically sign an I‐
94W when he crossed the border. The provision on which he relies,
however, simply states that “[a]n applicant arriving at a land‐border
port‐of‐entry will be charged a fee . . . for issuance of Form I‐94W.”
8 C.F.R. § 217.2(c)(2). It does not prohibit applicants arriving by land
from submitting an ESTA application beforehand and using that
submission to satisfy the I‐94W requirement, which is precisely what
other DHS regulations permit. Frequently Asked Questions,
https://esta.cbp.dhs.gov/esta/application.html?execution=e1s1.
Vasconcelos lastly relies on two portions of the administrative
record which he believes show that he entered the country using a
visa, rather than as a visa waiver tourist. He points first to the I‐94
Arrival Record and claims that only the I‐94W is used in connection
with visa waiver entrants. But he offers no support for this
contention, and the I‐94 provides that “[t]his form must be
completed by all persons except U.S. citizens, returning resident
aliens, aliens with immigrant visas, and Canadian Citizens visiting or
in transit.”3 It would appear, then, that DHS maintains an I‐94 and I‐
94W for persons admitted under the program, so there is nothing
unusual about the presence in the record of an I‐94. Indeed,
3
U.S. Customs and Border Protection, Form I‐94W Nonimmigrant Visa Waiver
Arrival/Departure Record, available at
https://www.cbp.gov/sites/default/files/documents/%20I‐94W%20English%20%2811‐11
%29%20FINAL%20%28reference%20only%29.pdf (last visited October 26, 2016).
14
No. 15‐1308
Vasconcelos’s own I‐94 Arrival Record contains a field for “Visa
Class” and indicates that he was admitted as a “Visa
Waiver/Tourist.” This entry would be nonsensical if VWP entrants
were not or could not be assigned I‐94 records. Cf. Mokarram v. Att’y
Gen., 316 Fed. App’x 949, 950–51 (11th Cir. 2009) (per curiam)
(observing that the petitioner’s “I‐94 Departure Record” contained a
“WT” notation, indicating that he had been admitted under the
VWP).
Vasconcelos also observes that he was provided with a Form
I‐826 Notice of Rights and Request for Deposition, which states,
“You have a right to a hearing before the Immigration Court to
determine whether you may remain in the United States.” Admin.
R. at 20. By supplying him with this form, he argues, DHS
acknowledged that he had entered the country as a visitor entitled to
a hearing, and not under the VWP. We are not persuaded. When
initiating removal proceedings, the DHS is required by statute to
provide an alien with a notice of rights, including the right to a
hearing before an immigration officer. 8 U.S.C. § 1229; see Nolasco v.
Holder, 637 F.3d 159, 163–64 (2d Cir. 2011). The fact that Vasconcelos
was provided with the standard notice of the right to a hearing does
not mean that he could not have previously waived that right as a
condition of entry under the VWP.
While potential irregularities in the administrative record
might cause a reasonable adjudicator to conclude that Vasconcelos
did not enter the country pursuant to the VWP based on his ESTA
application, we cannot say that any reasonable adjudicator would be
compelled to reach that conclusion. Because DHS’s factual findings
are supported by substantial evidence, they are determinative.
15
No. 15‐1308
Having received the benefit of expedited entry in exchange for a
promise of expedited removal, Vasconcelos is bound by the terms of
the program and is not entitled to a hearing. See Gjerjaj, 691 F.3d at
292.
CONCLUSION
For the foregoing reasons, and finding Vasconcelos’s
remaining arguments without merit, the petition is DENIED.
16
