Case: 18-60244 Document: 00515211400 Page: 1 Date Filed: 11/22/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-60244 FILED November 22, 2019 Lyle W. Cayce JOHN JOSEPH LAVERY, Clerk Petitioner v. WILLIAM P. BARR, U. S. ATTORNEY GENERAL, Respondent Petition for Review from a Decision of Immigration and Customs Enforcement Before JONES, SMITH, and HAYNES, Circuit Judges. EDITH H. JONES, Circuit Judge: John Lavery, the petitioner, was ordered removed from the United States by the Department of Homeland Security (“DHS”) after he violated the terms of his admission under the Visa Waiver Program (“VWP”), 8 U.S.C. § 1187. He filed a motion to reopen pursuant to 8 C.F.R. § 103.5, positing that he never voluntarily and knowingly waived his right to a hearing before an immigration judge and thus should not be summarily removed. An Immigration and Customs Enforcement (“ICE”) Deputy Field Office Director denied Lavery’s motion, and Lavery filed a petition for review in this court. The government moved to dismiss for lack of jurisdiction. We DISMISS Lavery’s petition for lack of jurisdiction because it calls for judicial review of the denial of a motion he is not entitled to file. Case: 18-60244 Document: 00515211400 Page: 2 Date Filed: 11/22/2019 No. 18-60244 BACKGROUND John Lavery is a native and citizen of the United Kingdom. He first entered the United States in 1974 using a B-2 visitor’s visa. He remained in the United States for the next forty years in violation of the conditions of that visa. In December 2014, Lavery and his wife were given tickets for a trip to Scotland. The trip was scheduled for June 2015 and required Lavery to possess a visa to reenter the United States. Interestingly, he had maintained his U.K. passport. But the visa requirement presented a problem for Lavery because he did not have a visa and his American citizen wife was unaware that he was not a citizen of the United States. Lavery turned to his cousin for advice because she was a frequent traveler. She told Lavery about the VWP. The VWP “permits alien visitors to enter the United States from designated countries for a period not exceeding 90 days without obtaining a nonimmigrant visa.” Nose v. Attorney Gen. of U.S., 993 F.2d 75, 77 (5th Cir. 1993). The program is dependent upon, inter alia, the alien’s waiver of his right “to contest, other than on the basis of an application for asylum, any action for removal.” 8 U.S.C. § 1187(b)(2). This waiver is the linchpin of the program; it allows VWP participants to enter the country expeditiously while streamlining their removal. When the VWP was first piloted, the waiver was executed using Form I-791. Visa Waiver Pilot Program, 53 Fed. Reg. 24,898, 24,901 (June 30, 1988) (to be codified at 8 C.F.R. pt. 217). That form was replaced a few years later by Form I-94W. Visa Waiver Pilot Program, 56 Fed. Reg. 32,952 (July 18, 1991) (to be ...
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