PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 21-2563 VAMUSA KOSH ISHMAEL, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Final Order Of the Board of Immigration Appeals (BIA No.: A072-803-370) Immigration Judge: Alice Song Hartye Argued on January 18, 2023 Before: AMBRO*, PORTER, and FREEMAN, Circuit Judges *Judge Ambro assumed senior status on February 6, 2023. (Opinion Filed May 11, 2023) Benjamin J. Hooper (Argued) Pennsylvania Immigration Resource Center 294 Pleasant Acres Road Suite 202 York, PA 17402 Counsel for Petitioner Lindsay Marshall (Argued) United States Department of Justice Office of Immigration Litigation P. O. Box 848 Ben Franklin Station Washington, DC 20044 Counsel for Respondent Jonah B. Eaton (Argued) Nationalities Service Center 1216 Arch Street 4th Floor Philadelphia, PA 19107 Counsel for Amicus-Petitioner 2 OPINION OF THE COURT AMBRO, Circuit Judge Appellant Ishmael Kosh 1 petitions us to review the order from the Board of Immigration Appeals (“BIA”) that terminated his asylum status and denied his applications for withholding of removal and protection under the Convention Against Torture. He maintains that the Department of Homeland Security (“DHS”) improperly sought to terminate his asylum status in asylum-only proceedings because he first entered the United States under the Visa Waiver Program. Per Kosh, that limiting program no longer applies to him, so he is entitled to complete-jurisdiction removal proceedings instead. In such unlimited proceedings, asylees can raise an adjustment- of-status claim as a defense to removal. We conclude that, if Kosh re-entered the country as an asylee without signing a new Visa Waiver Program form limiting his defenses, he is entitled to complete-jurisdiction proceedings. We thus grant his petition for review, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. 1 Though the caption throughout the immigration proceedings and on appeal to our Court refers to the appellant as “Vamusa Kosh Ishmael,” the parties and other documents call him “Ishmael Kosh.” We follow the parties’ lead and do the same. 3 I. BACKGROUND Kosh, a Liberian citizen, arrived in the United States in 2001 with a false Portuguese passport and requested entry under the Visa Waiver Program (“VWP”). It allows noncitizens from designated countries—including Portugal, but not Liberia—to seek admission for up to 90 days as nonimmigrant visitors without obtaining a visa. 8 U.S.C. § 1187(a). All VWP entrants must sign a Visa Waiver Form in which they “waive[] any right . . . to contest, other than on the basis of an application for asylum, any action for removal of the alien.” Id. § 1187(b)(2). Signing this waiver form is mandatory each time someone seeks entry through the VWP (even if the individual already signed one on a previous trip). See Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record, U.S. Customs and Border Protection, https://www.cbp.gov/sites/default/files/assets/documents/201 8-Mar/700120%20-%20CBP%20Form%20I- 94W%20ENG%20%281216%29%20- 20FINAL%20%28SAMPLE%29.pdf (last visited Apr. 28, 2023) (“This form must be completed by every nonimmigrant visitor not in possession of a visitor’s visa who is a national of one of the …
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