Case: 17-12521 Date Filed: 08/01/2019 Page: 1 of 12 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ Nos. 17-12521 & 18-10010 ________________________ Agency No. A093-392-349 EDUARDO ARIEL GOMEZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petitions for Review of a Decision of the Board of Immigration Appeals ________________________ (August 1, 2019) Before MARCUS, GRANT, and HULL, Circuit Judges. PER CURIAM: Case: 17-12521 Date Filed: 08/01/2019 Page: 2 of 12 Eduardo Gomez came to the United States as part of a program that allows certain foreigners to visit without a visa. In exchange for that convenience, program participants cannot challenge the government’s efforts to remove them from this country. Nor can they adjust their nonimmigrant visitor status to that of a legal permanent resident—except in narrow circumstances. Gomez invoked one of those exceptions and succeeded in gaining permanent resident status. But he did so through fraud by using a fake Cuban birth certificate. When the Department of Homeland Security (DHS) sought to remove Gomez based on that fraudulent status adjustment, he admitted the charge—but he also applied for a fraud waiver, which the Board of Immigration Appeals (BIA) denied. And when Gomez moved to reopen his proceedings, the agency rejected that request as well, citing the fact that at entry Gomez had waived his right to challenge his removal. But in so doing, the agency failed to consider whether that entry waiver continued to apply after Gomez successfully—albeit fraudulently—became a permanent resident. We therefore vacate the BIA’s order denying Gomez’s motion to reopen and remand for further proceedings. I. A. Gomez, a native and citizen of Argentina, entered the United States as a nonimmigrant tourist in 2002. He came through the Department of State’s Visa 2 Case: 17-12521 Date Filed: 08/01/2019 Page: 3 of 12 Waiver Program (VWP), which allows foreign citizens from certain countries to visit the United States for 90 days without obtaining a visa, pursuant to section 217 of the Immigration and Nationality Act (INA). See INA § 217(a), 8 U.S.C. § 1187(a). Notably, that expedience comes with some tradeoffs. For one thing, VWP participants must waive any right “to contest, other than on the basis of an application for asylum, any action for removal,” which is known as the “VWP waiver.” INA § 217(b)(2), 8 U.S.C. § 1187(b)(2). And on top of that, section 245(c) of the INA generally precludes an alien who was admitted under the VWP from adjusting his status from that of a nonimmigrant visitor to that of a lawful permanent resident. See INA § 245(c)(4), 8 U.S.C. § 1255(c)(4). There are, however, a few exceptions. As relevant here, the Cuban Adjustment Act allows certain nonimmigrant visitors—including VWP entrants— to adjust their status “notwithstanding the provisions of section 245(c) of the [INA].” Pub. L. No. 89–732, § 1, 80 Stat. 1161 (1966). But as the name of the Cuban Adjustment Act might suggest, this exemption applies only to “a native or citizen of Cuba.” Id. Which is ...
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