Case: 14-14860   Date Filed: 07/07/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14860
                         Non-Argument Calendar
                       ________________________

                        Agency No. A075-679-139



HYUN CHO,

                                                                       Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                               (July 7, 2015)

Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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          Hyun Cho is a native and citizen of the Republic of South Korea. On

August 24, 2012, she was admitted to the United States under the Visa Waiver

Program. See Immigration and Nationality Act (“INA”) § 217(a), 8 U.S.C. §

1187(a). The Visa Waiver Program (“VWP”) allows nationals of certain countries

to travel to the United States for a period of up to 90 days. A condition of

admission under the VWP is that the alien “waive[s] 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).

          On October 14, 2014, after the United States Citizenship and Immigration

Service of the Department of Homeland Security (“DHS”) denied Cho’s

application for adjustment of status, DHS issued a removal order informing Cho

that she was being removed for having stayed in the United States for longer than

the 90 days authorized under the VWP.

          Cho now petitions this court to review the order. She argues that she did not

waive her rights to contest her removal, and that if she did, she did not waive them

knowingly or voluntarily and thus was denied the due process of law guaranteed by

the Fifth Amendment. She asserts that she has been prejudiced by this denial of

due process by being precluded from pursuing her application for adjustment of

status.




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       We review constitutional challenges de novo. Lonyem v. U.S. Att’y Gen.,

, 1341 (11th Cir. 2003) (per curiam). Even though the INA may bar

judicial review, we retain jurisdiction to determine whether the INA’s conditions

limiting judicial review exist. Vuksanovic v. U.S. Att’y Gen., 

, 1310

(11th Cir. 2006) (per curiam).

       Under the VWP, an alien from certain countries may enter the United States

without a visa as a nonimmigrant visitor for a period not to exceed 90 days. See

INA § 217(a), 8 U.S.C. § 1187(a). The alien may not be provided a waiver of visa

unless she waives any right to appeal DHS’s determination as to her admissibility

at the port of entry, or to contest, other than on the basis of an application for

asylum, any action for her removal. 

8 § 1187(b). 1

       We have jurisdiction to review the validity of Cho’s waiver of her rights,

because we have jurisdiction to determine whether the statutory conditions limiting

judicial review exist. See 

. The record of the form

Cho electronically completed to participate in the VWP indicated that she waived

her rights; furthermore, she would not have been approved to enter the United

States unless she signed the waiver. Cho stated in her subsequent application for




       1
        The due process right to a hearing may be waived. Boddie v. Connecticut, 

, 378–79, 

, 786, 

(1971).

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adjustment of status that she could read and understand English. The VWP forms

were available in her native tongue; she chose to complete them in English.

      Because Cho’s waiver is effective, she was not entitled to removal

proceedings or any further proceedings on her application to adjust her status. INA

§ 217(b), 8 U.S.C. § 1187(b). She was provided the opportunity to pursue that

application, and it was denied for reasons unrelated to her VWP entrant status. In

sum, Cho has not been denied due process of law. The removal order therefore

stands.

      PETITION DENIED.




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