Olsi Shkembi v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________ No. 21-2592 _______________________ OLSI SHKEMBI, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA _______________________ On Petition for Review of a Decision of the Board of Immigration Appeals BIA-1: A097-669-336 Immigration Judge: Annie S. Garcy __________________________ Submitted Under Third Circuit L.A.R. 34.1 (a) June 14, 2022 Before: HARDIMAN, SMITH, and FISHER, Circuit Judges (Filed July 27, 2022) Marcia Kasdan Law Office of Marcia S. Kasdan 127 Main Street 1st Floor Hackensack, NJ 07601 Counsel for Petitioner Matthew B. George United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent __________________________ OPINION OF THE COURT __________________________ SMITH, Circuit Judge. Olsi Shkembi is a citizen of Albania. He attempted to enter this country by representing that he was a national of a country that is a participant in the Visa Waiver Program (VWP), 8 U.S.C. § 1187, although Albania is not a participant in that program. His ruse was detected before he could leave the airport where immigration authorities deemed him inadmissible. Pursuant to the terms of the VWP, which precludes contesting one’s removability except by applying for 2 asylum, immigration authorities referred him to an Immigration Judge (IJ) for asylum-only proceedings. After his application seeking asylum, withholding of removal, and relief under the Convention Against Torture (CAT) was denied, he succeeded in reopening his asylum proceeding. Despite the VWP’s limitation to asylum-only proceedings, Shkembi applied for a marriage-based adjustment of status (AOS) and then withdrew his asylum application at a scheduled hearing before the IJ. His immigration file was returned to the Department of Homeland Security, but his AOS application was not adjudicated. After being taken into custody, he filed an emergency motion to reopen his asylum proceedings. The motion was denied. Shkembi petitioned for review. Shkembi asserts that his AOS application should have been adjudicated because he is not bound by the terms of the VWP. This Court has yet to address whether the terms of the VWP apply to an alien who is from a non-VWP-participant country but who nevertheless attempts to enter the United States by using the passport of a national of a VWP-participant country. We join all of our sister circuits that have considered this question and now hold that such an alien, despite his ineligibility for the VWP, is subject to the terms of the VWP. Accordingly, Shkembi has never had a right to contest his removability by seeking an AOS and has been limited to asylum-only proceedings. Shkembi also contends that the denial of his emergency motion to reopen deprived him of his right to due process. We disagree. We will deny the petition for review. 3 I. Shkembi tried to enter the United States under the VWP. “The Program allows travel without a visa for short- term visitors from 38 countries that have entered into a ‘rigorous security partnership’ with the United States.” Trump v. Hawaii, 138 S. Ct. 2392, 2411 (2018) …

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