Handa v. Wilson , 401 F.3d 1129 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANUJ HANDA, 
Petitioner-Appellant,
v.
A. NEIL CLARK,* Field Office No. 04-35293
Director, Seattle Field Office, U.S.
IMMIGRATION AND CUSTOMS  D.C. No.
CV-03-02350-TSZ
ENFORCEMENT; TOM RIDGE,
OPINION
Secretary of Homeland Security;
and CONDOLEEZZA RICE,**
Secretary of State,
Respondents-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
March 8, 2005—Seattle, Washington
Filed March 25, 2005
Before: Ferdinand F. Fernandez, A. Wallace Tashima, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Fernandez
*The current Field Office Director, A. Neil Clark, is substituted for his
predecessor Aaron G. Wilson, the Former Field Office Director. Fed. R.
App. P. 43(c)(2).
**Condoleezza Rice is substituted for her predecessor, Colin L. Powell,
as Secretary of State. Fed. R. App. P. 43(c)(2).
3689
HANDA v. CLARK 3691
COUNSEL
Robert Houston Pauw, Gibbs Houston Pauw, Seattle, Wash-
ington, for the petitioner-appellant.
Christopher Lee Pickrell, Assistant United States Attorney,
Seattle, Washington, for the respondents-appellees.
OPINION
FERNANDEZ, Circuit Judge:
Anuj Blake Handa appeals the district court’s denial of his
petition for habeas corpus relief filed against the Director of
the Seattle Field Office of the Bureau of Immigration and
Customs Enforcement (BICE).1 He asserts that he was wrong-
fully removed to the United Kingdom after he overstayed the
ninety-day limit on his visa, which was issued pursuant to the
Visa Waiver Program, 8 U.S.C. § 1187 (VWP). We affirm.
BACKGROUND
Handa is a citizen of the United Kingdom, who entered the
1
Handa v. Crawford, 312 F. Supp. 2d 1367 (W.D. Wash. 2004) (Handa
I).
3692 HANDA v. CLARK
United States under the VWP on March 2, 2003. Under the
terms of that program, he was required to sign a waiver which
was designed to facilitate use of the program and preclude the
need for formal removal proceedings. See 8 U.S.C.
§ 1187(b). The waiver reads as follows, in pertinent part:
WAIVER OF RIGHTS: I hereby waive any rights to
review or appeal of an immigration officer’s deter-
mination as to my admissibility, or to contest, other
than on the basis of an application for asylum, any
action in deportation.
....
WARNING: . . . You are authorized to stay in the
U.S. for 90 days or less . . . . Violation of these terms
will subject you to deportation.
His purpose in coming was to take medical board examina-
tions, which were held on June 11, 2003, beyond the ninety-
day period — that period expired on June 2, 2003. He asserts,
however, that he had planned to leave the United States
before the ninety-day period expired and then to reenter. He,
for various reasons, did not do so. He stayed on and even
scheduled his return trip to the United Kingdom for July 22,
2003, a date, obviously, far beyond the expiration of his
ninety days.
In the meantime, Handa decided that he would take a three-
day vacation trip to Vancouver, British Colombia. In pursuit
of that diversion, on June 14, 2003, he presented himself to
the Canadian authorities at the Blaine, Washington, border
crossing. He was inspected there by a member of the Cana-
dian Immigration Service, who noted that Handa’s VWP visa
had expired. That official did not admit Handa to Canada.
Handa, for his part, voluntarily withdrew his application to
enter Canada and left its soil without delay, as he promised to
do. He was told to turn the car around and go back to the
HANDA v. CLARK 3693
United States immigration authorities, which he promptly did
by circling the Canadian flag pole, recrossing the border, and
presenting himself to the United States officials. Those offi-
cials arrested him as a visa overstay and in due course
removed him to the United Kingdom on July 21, 2003. In the
meantime, however, Handa filed the present habeas corpus
petition on July 17, 2003.
The district court denied Handa’s petition for lack of juris-
diction, and, in the alternative, on the merits. Handa I, 312 F.
Supp. 2d at 1375. This appeal followed.
STANDARD OF REVIEW
We review the district court’s denial of Handa’s petition for
a writ of habeas corpus de novo. Ferreira v. Ashcroft, 382
F.3d 1045, 1049 (9th Cir. 2004).
JURISDICTION
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253(a). Whether the district court had subject matter juris-
diction presents a more knotty problem, most of which was
unraveled in the district court’s excellent opinion, much of
which we agree with and adopt, as hereinafter indicated. We
will take up each of the government’s challenges in turn.
First, the government asserts that because Handa has been
physically removed, jurisdiction to proceed has terminated.
We, however, agree with the district court that because
Handa’s petition for a writ of habeas corpus was filed before
his physical removal and because there are collateral conse-
quences as a result of that removal,2 jurisdiction remains. In
short, we agree with and adopt the district court’s discussion
of this issue in Handa I, 312 F. Supp. 2d at 1370.
2
See 8 U.S.C. § 1182(a)(9)(A)(ii) (inadmissible for ten years).
3694 HANDA v. CLARK
Second, we agree with the district court that because Handa
did waive his rights, he actually had no further administrative
remedies to exhaust at the time he commenced his habeas cor-
pus action. Id.
Third, we further agree with the district court that Handa
did not properly raise constitutional claims before it. See id.
at 1372. The sum total of his presentation was a statement in
his habeas corpus petition that, “[b]y failing to adopt reason-
able and lawful procedures for determining whether a person
is removable under 8 C.F.R. § 217.4, BICE has violated sub-
stantive and procedural Due Process.” As a result, Handa has
waived his constitutional claims on appeal because a mere
passing reference to a constitutional claim is not sufficient to
raise that claim before the district court, and does not preserve
the claim for our review. See Crawford v. Lungren, 96 F.3d
380, 389 n.6 (9th Cir. 1996). Briefly stated, a party cannot
treat the district court as a mere ill-placed bunker to be cir-
cumvented on his way to this court where he will actually
engage his opponents. Id.
Nevertheless, we are not able to agree with the district
court that Handa entirely waived his claim that the govern-
ment improperly applied the VWP procedures to him. Handa
I, 312 F. Supp. at 1372. He can still assert that (1) he was not
subject to them at all, and (2) the law required that he be
brought before an immigration judge (IJ) before he was
removed.
We do agree that when Handa signed the waiver, he gave
up the possibility of other forms of relief, as well as the
opportunity to challenge the merits of a removal decision aris-
ing out of his VWP entry. See, e.g., Itaeva v. INS, 314 F.3d
1238, 1241-42 (10th Cir. 2003); Nose v. Attorney Gen. of the
United States, 993 F.2d 75, 80 (5th Cir. 1993). It is true that
a decision of this case requires consideration of the merits of
Handa’s position that he was no longer in the VWP at all.
However, that is not the equivalent of deciding the merits of
HANDA v. CLARK 3695
a claim by a person in the VWP that he should not be
removed. Nor is the claim that the government ignored the
statutory procedures for removal when it did not take the case
to an IJ waived.3 We will, therefore, consider those claims.
DISCUSSION
While we do not agree with the district court’s determina-
tion that it lacked jurisdiction to consider Handa’s claim that
he was not under the VWP at all, we do agree with its conclu-
sion that Handa’s departure-and-reentry argument is unper-
suasive. We, therefore, adopt the district court’s decision in
Handa I, 312 F. Supp. 2d at 1372-74, as dispositive of that
claim. We add only that it would be amazing indeed if Con-
gress intended that an alien who was here on the special VWP
could remove himself from the strictures of that program by
the maneuver that Handa claims to have executed here — a
mere physical entry into Canada for a few seconds.
That leaves us with Handa’s claim that the statutory proce-
dures were not followed because he was not brought before
an IJ. In analyzing this claim the district court said:
Lastly, Dr. Handa argues that the Governments’
removal procedures violate the INA because he was
not entitled to sit before an immigration judge. Dr.
Handa cites INA § 240(a)(3), which governs
removal procedures: “Unless otherwise specified in
this chapter, proceedings under this section shall be
the sole and exclusive procedure for determining
whether an alien may be . . . removed from the
3
Handa also suggests that the wrong immigration officer made the
removal decision. But the record shows that it was made by the persons
to whom removal authority was delegated. See 8 C.F.R. § 217.4(b); see
also 8 C.F.R. §§ 1.1(o), 2.1. Similarly, it is clear that he was notified of
the grounds of his removal — violation of the VWP. In short, we agree
with the district court’s disposal of those claims. See Handa I, 312 F.
Supp. 2d at 1373-74.
3696 HANDA v. CLARK
United States.” 8 U.S.C. § 1229a(a)(3). Under this
“exclusive” procedure, an alien is entitled to sit
before an immigration judge, to have counsel, to
have a reasonable opportunity to examine the evi-
dence against him, to present evidence on his behalf,
and to cross-examine witnesses presented by the
Government. See 8 U.S.C. § 1229a(b)(4). Dr. Handa,
however, overlooks the conditional language of INA
§ 240(a)(3): “Unless otherwise specified in this
chapter.” Congress has “otherwise specified” that
under the VWP, an alien waives his right to any
review or appeal of an immigration officer’s deter-
mination as to his deportability. 8 U.S.C. 1187(b);
see also, Wigglesworth v. INS, 319 F.3d 951, 960
(7th Cir. 2003) (VWP deportee “waived right to a
hearing on her deportation and her right to apply for
discretionary relief.”). 8 C.F.R. § 217.4(b) clarifies
this by providing that deportation of an alien under
the VWP “shall be effected without referral of the
alien to an immigration judge for determination of
deportability.” (Emphasis added). Contrary to his
contention, Dr. Handa, a VWP entrant, was not enti-
tled to a hearing before an immigration judge.
Id. at 1374-75. There is much force to the district court’s
determination, but more does need to be said because the stat-
utory language is not hyaline. It does not expressly state that
a VWP alien cannot appear before an IJ; that demands more
discussion.
In Morales-Izquierdo v. Ashcroft, 388 F.3d 1299, 1305 (9th
Cir. 2004), we held that the procedures for reinstatement of
prior orders of removal had to be conducted before an IJ and
that a regulation to the contrary was invalid. In so doing, we
applied a Chevron4 analysis. Morales-Izquierdo, 388 F.3d at
1302-04.
4
Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-45, 104 S. Ct. 2778, 2781-83, 81 L. Ed. 2d 694 (1984); see also FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 120 S. Ct.
1291, 1300-01, 146 L. Ed. 2d 121 (2000); INS v. Aguirre-Aguirre, 526
U.S. 415, 424, 119 S. Ct. 1439, 1445, 143 L. Ed. 2d 590 (1999).
HANDA v. CLARK 3697
We referred to the fact that “[t]he plain language of INA
§ 240(a) [8 U.S.C. § 1229a(a)] unambiguously indicates that
an immigration judge must decide the ‘inadmissibility’ or
‘deportability’ of an alien.” Id. at 1303. The government
argued that reinstatement of a removal order was different,
but we responded that the provision in question did not say so,
and Congress could have said so if it had wished to. Id. at
1304.
[1] Here, as the district court recognized, 8 U.S.C.
§ 1187(b) seems to say so, at least in a backhanded fashion.
It provides that the alien must waive any right — “(1) to
review or appeal under this chapter of an immigration offi-
cer’s determination as to the admissibility of the alien at the
port of entry into the United States, or (2) to contest, other
than on the basis of an application for asylum, any action for
removal of the alien.” Id. And, of course, 8 U.S.C. § 1229a(a)
itself indicates that its provisions are not exclusive; they
apply: “[u]nless otherwise specified in this chapter.” Id.
§ 1229a(a)(3). Again, § 1187(b) does appear to otherwise
specify.
Some clarity is added by the context of 8 U.S.C.
§ 1187(b)’s provisions as a whole. At the port of entry, the
alien waives the right to any review or appeal of an immigra-
tion officer’s determination. Id. § 1187(b)(1). Once allowed to
enter, the alien, as relevant here, gives up the right to “con-
test” his removal. Id. § 1187(b)(2). Of course, the word “con-
test” refers to disputation, contention, litigation, and the like.
See, e.g., 1 The Compact Edition of the Oxford English Dic-
tionary 536 (1971); Webster’s Third New Int’l Dictionary 492
(1986). When the government decides to remove a VWP
alien, the alien has already waived the right to dispute or liti-
gate the removal, but the whole purpose of having proceed-
ings before an IJ is to have that officer preside over just such
a dispute. See 8 U.S.C. § 1229a(b).5 Requiring a hearing
5
The IJ “shall administer oaths, receive evidence, and interrogate, exam-
ine, and cross-examine the alien and any witnesses.” Id. § 1229a(b)(1).
3698 HANDA v. CLARK
before an IJ would make little sense; it would only add delay
to what should be an expeditious procedure.
[2] We can be quite confident that Congress did wish to
make the VWP process quick and simple. Congress saw that
the great advantages of the program were promoting better
relations with friendly nations, eliminating unnecessary barri-
ers to travel, stimulating the travel industry, and alleviating
vast amounts of paperwork, particularly paperwork at con-
sular offices. See H.R. Rep. No. 99-682, pt. I, at 50 (1986),
reprinted in 1986 U.S.C.C.A.N. 5649, 5654. At the same
time, Congress was well aware of the potential for abuse that
the program made possible. Id. And Congress sought to elimi-
nate that by, among other things, using careful screening and
monitoring programs, while also providing that overstays will
be deportable “without any judicial recourse or review, except
when claiming asylum.” H.R. Rep. No. 106-564, at 7 (2000).
Again, this helps demonstrate that Congress wished to have
violators, like Handa, removed without the often extensive
delays and expensive processes which are involved in provid-
ing the adversary procedures that are presided over by IJs.
Surely, Congress did not wish to shift the great burdens on the
consular offices to the Attorney General. Yet, it must be
admitted that the answer to our question is still not pellucid.
This, then, presents a classic case for administrative con-
struction. As the Supreme Court has told us:
If, however, the court determines Congress has not
directly addressed the precise question at issue, the
court does not simply impose its own construction
on the statute, as would be necessary in the absence
Moreover, the alien has the right to counsel and “shall have a reasonable
opportunity to examine the evidence against the alien, to present evidence
on the alien’s own behalf, and to cross-examine witnesses presented by the
Government.” Id. § 1229a(b)(4)(A), (B).
HANDA v. CLARK 3699
of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the spe-
cific issue, the question for the court is whether the
agency’s answer is based on a permissible construc-
tion of the statute.
Chevron, 467 U.S. at 843, 104 S. Ct. at 2781-82 (footnotes
omitted); see also Aguirre-Aguirre, 526 U.S. at 424, 119
S. Ct. at 1445.
[3] Here, when faced with the possible uncertainty created
by Congress’s determination that VWP visa holders could not
seek review of admissibility determinations or contest
removal, and Congress’s declaration that, in general, both
sorts of proceedings are to be conducted before IJs, the
agency resolved any ambiguity by deciding that, in general,
“removal shall be determined by the district director who has
jurisdiction over the place where the alien is found, and shall
be effected without referral of the alien to an immigration
judge for a determination of deportability . . . .” 8 C.F.R.
§ 217.4(b)(1). That interpretation is not “arbitrary, capricious,
or manifestly contrary to the statute.” United States v.
Hernandez-Vermudez, 356 F.3d 1011, 1015 (9th Cir. 2004).
Therefore, Handa’s claim that he was improperly removed
because he was not permitted to have an IJ decide whether he
should be removed must come to naught.
CONCLUSION
The VWP is designed to eliminate unnecessary red tape
and to make it possible for people to travel more easily to this
country, while also making it easier for United States citizens
to travel more easily to cooperating countries. But the linch-
pin of the program is the waiver, which assures that a person
who comes here with a VWP visa will leave on time and will
not raise a host of legal and factual claims to impede his
removal if he overstays.
3700 HANDA v. CLARK
Handa, who was well aware of the restrictions upon his
entry and of his waiver, took it upon himself to overstay. He
was caught out and removed. He now seeks relief from the
consequences of his actions, but we need not be as strict as
Rhadamanthus in order to observe that Handa is not entitled
to relief from those consequences. Neither his vermiculate
claim that he bypassed the VWP by his brief step onto Cana-
dian soil (a whole new kind of step transaction), nor his facti-
tious argument that he had a right to appear before an IJ,
where he could not contest his removal, can serve his present
purposes. In fine, he is a peregrine who chose to violate our
laws, and who was properly removed from our shores.
AFFIRMED.