Galluzzo v. Holder, No. 08-6036 (2d Cir. 2011)
Annotate this Case
Download PDF
08-6036-ag(L) Galluzzo v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2010 (Argued: December 6, 2010 Decided: January 26, 2011) Docket Nos. 08-6036-ag; 09-2255-cv G IORGIO G ALLUZZO, Petitioner-Appellant, v. E RIC H OLDER, J R., U.S. A TTORNEY G ENERAL, Respondent. Before: F EINBERG, B.D. P ARKER, and W ESLEY, Circuit Judges. Petition for review of an October 1, 2008 removal order issued by United States Immigration and Customs Enforcement and appeal from an order of the United States District Court for the Southern District of New York (Rakoff, J.) entered on March 28, 2009, dismissing Petitioner s civil action challenging the denial of his Application to Adjust Status to that of a Lawful Permanent Resident. P ETITION R EMANDED. J UDGMENT A FFIRMED. Page 1 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 A MANDA G RAY, Bretz & Coven, LLP, New York, NY (David K. S. Kim, Matthew L. Guadagno, Jules E. Coven, Kerry W. Bretz, on the brief), for Petitioner-Appellant. B RIENA S TRIPPOLI, Trial Attorney, Office of Immigration Litigation, Civil Division (Justin R. Markel, Trial Attorney, Office of Immigration Litigation, Civil Division, Tony West, Assistant Attorney General, Carl H. McIntyre, Assistant Director, on the brief), for Eric H. Holder, Jr., United States Attorney General, Washington, D.C. P ER C URIAM: Petitioner Giorgio Galluzzo, a native and citizen of 19 Italy, seeks review of an October 1, 2008 Order of Removal 20 issued under § 217 of the Immigration and Nationality Act 21 ( INA ), 8 U.S.C. § 1187. 22 Enforcement ("ICE") issued the removal order without 23 affording Galluzzo a hearing on the ground that Galluzzo 24 waived any right to be heard when he entered the United 25 States through the Visa Waiver Program ( VWP ) established 26 by § 1187. 27 to a hearing and that his due process rights were therefore 28 violated by the issuance of the removal order without a 29 prior hearing. 30 of the United States District Court for the Southern U.S. Immigration and Customs Galluzzo objects that he did not waive his right Additionally, Galluzzo appeals from an order Page 2 of 11 1 District of New York (Rakoff, J.) entered on March 28, 2009, 2 dismissing for lack of jurisdiction Galluzzo s civil action 3 challenging the denial of his I-485 application to adjust 4 his immigration status. 5 For the reasons stated below, we find that, in the 6 absence of evidence of a waiver, Galluzzo s due process 7 rights were violated by his failure to receive a hearing. 8 We REMAND to allow the Department of Homeland Security to 9 determine whether Galluzzo was substantially prejudiced by 10 this violation. 11 AFFIRM. Background 12 13 As to the district court s judgment, we On April 12, 1995, Galluzzo entered the United States 14 from Italy. Galluzzo concedes that he entered the United 15 States on a ninety-day tourist visa issued through the VWP, 16 which permits qualified visitors from certain countries to 17 enter the United States without applying for a standard 18 visa. See 8 U.S.C. § 1187(a). 19 the record, however, related to Galluzzo s entry; the record 20 contains only a copy of Galluzzo s Italian passport and a 21 copy of the front page of Galluzzo s Form I-94W Departure 22 Record, filled out with his name and entry date in Italian. There is little evidence in Page 3 of 11 1 Although the Government submits that Form I-94W contains a 2 waiver provision stating that a VWP entrant waives his right 3 to a hearing to contest removal, the Government did not 4 submit a Form I-94W waiver into the record. 5 importantly, has the Government produced a signed waiver 6 executed by Galluzzo waiving his right to contest removal. 7 Nor, more Galluzzo stayed well beyond the permitted ninety days. 8 Approximately three years after his entry, Galluzzo began 9 attempting to adjust his immigration status. On January 13, 10 1998, Galluzzo s employer filed an Application for 11 Employment Certification on Galluzzo s behalf. 12 Department of Labor approved that application, Galluzzo s 13 employer then filed a Form I-140 Immigrant Petition for 14 Alien Worker on Galluzzo s behalf; the former Immigration 15 and Naturalization Services approved that petition on 16 November 21, 2001. 17 a Form I-485 Application to Register Permanent Resident or 18 Adjust Status. 19 Once the On January 10, 2002, Galluzzo then filed On November 25, 2008, Galluzzo attended what he 20 believed to be a second interview related to his I-485 21 Application. 22 his I-485 Application had been denied on May 24, 2007. Upon arrival, however, Galluzzo learned that Page 4 of 11 The 1 denial decision informed Galluzzo that U.S. Citizenship and 2 Immigration Services ( USCIS ) found him ineligible for an 3 adjustment of status. 4 alien s willful misrepresentation renders him ineligible for 5 a visa and concluded, It is clear that as a result of your 6 blatant disregard for the terms of the VWP you have 7 willfully misrepresented yourself in conjunction with your 8 entry into the United States. 9 The decision explained that an After he received the decision, Galluzzo alleges that 10 he was isolated from his attorney and asked to sign certain 11 forms. 12 attorney and allegedly interrogated by an FBI agent about 13 the Italian mafia; Galluzzo indicated that he did not know 14 any reputed members of the mafia. 15 allegedly told him, I don t think there is anything I can 16 do here. 17 Upon his refusal, Galluzzo was reunited with his The FBI agent then Galluzzo was taken into ICE custody and served for the 18 first time with the October 1, 2008 Order of Removal. 19 removal order states that Galluzzo is removable because (1) 20 he overstayed his ninety-day visa authorized under the VWP; 21 (2) his I-485 application was denied; and (3) as a VWP 22 entrant, he waived his right to contest removal except to Page 5 of 11 The 1 apply for asylum. 2 November 25, 2008 until February 26, 2009 when he was 3 released under an Order of Supervision. 4 Appellant remained in ICE detention from On December 11, 2008, Galluzzo filed a petition with 5 our Court for review of his removal order. 6 not contend that he is eligible for asylum. 7 Galluzzo challenges his removal order on the ground that he 8 is eligible to adjust his immigration status. 9 Galluzzo does Instead, On January 14, 2009, Galluzzo filed a civil action 10 challenging the denial of his I-485 application in the 11 Southern District of New York. 12 district court dismissed Galluzzo s civil action, finding 13 that Galluzzo s petition before our Court and his civil suit 14 raised similar claims challenging removal. 15 first to file rule, the district court refrained from 16 exercising its jurisdiction. 17 On March 28, 2009, the Applying the Galluzzo timely filed an appeal of the dismissal of his 18 civil action, and that action was consolidated with his 19 petition for review of his order of removal. Discussion 20 21 22 A. Petition for Review As an initial matter, contrary to the Government s Page 6 of 11 1 suggestion, in the absence of a waiver, Galluzzo has a 2 constitutional right to a pre-removal hearing. 3 alien s constitutional rights are narrowly circumscribed 4 prior to entry, once an alien gains admission to our 5 country and begins to develop the ties that go with 6 permanent residence his constitutional status changes 7 accordingly. 8 (citation omitted); see also Plyler v. Doe, 457 U.S. 202, 9 210 (1982) ( Aliens, even aliens whose presence in this Although an Landon v. Plasencia, 459 U.S. 21, 32 (1982) 10 country is unlawful, have long been recognized as persons 11 guaranteed due process of law by the Fifth and Fourteenth 12 Amendments. ). 13 this issue have likewise concluded that aliens similarly 14 situated to Galluzzo have a constitutional right, in the 15 absence of a waiver, to a hearing. 16 593 F.3d 495, 502-03 (7th Cir. 2010) (en banc); Nose v. U.S. 17 Att y Gen., 993 F.2d 75, 78-79 (5th Cir. 1993); Mokarram v. 18 U.S. Att y Gen., 316 F. App x 949, 952-53 (11th Cir. 2009) 19 (unpublished). 20 Our sister circuits that have considered See Bayo v. Napolitano, Given that Galluzzo had a constitutional right to a 21 hearing absent waiver and that the Government has submitted 22 no explicit evidence of waiver, we must determine whether Page 7 of 11 1 Galluzzo s status as a VWP entrant alone is de facto proof 2 that he waived his right to contest removal. 3 authorizing the VWP stipulates that [a]n alien may not be 4 provided a waiver under the [VWP] program unless the alien 5 has waived any right . . . to contest, other than on the 6 basis of an application for asylum, any action for removal 7 of the alien. 8 statutory language, the Government argues that Galluzzo 9 could not have entered the country absent waiver of his 8 U.S.C. § 1187(b)(2). The statute Based on this 10 right to a hearing and therefore urges us to presume that 11 Galluzzo must have waived his right to contest removal. 12 We decline to adopt this presumption. In fact, we 13 indulge every reasonable presumption against waiver of 14 fundamental constitutional rights. 15 U.S. 458, 464 (1938) (internal quotation marks omitted) 16 (emphasis added). 17 Form I-94W Departure Record Galluzzo filled out upon his 18 entry actually advised Galluzzo that he would waive his 19 right to a hearing to contest removal by entering the 20 country through the VWP. 21 likewise silent as to whether Galluzzo signed or otherwise 22 agreed to waive his rights to contest removal. Johnson v. Zerbst, 304 The record is silent as to whether the More significantly, the record is Page 8 of 11 We will not 1 presume away an evidentiary problem of the Government s own 2 making. 3 be unreasonable for this Court to conclude that waiver 4 occurred in the absence of anything more than the entry- 5 ergo-waiver logic offered by Respondent. 6 App x at 953. 7 violation of his right to due process when he was denied the 8 opportunity for a hearing prior to the issuance of the 9 removal order. 10 We agree with the Eleventh Circuit that [i]t would Mokarram, 316 F. Absent proof of a waiver, Galluzzo suffered a Galluzzo is not thereby entitled to relief, however, 11 unless he can show prejudice as a result of his failure to 12 receive a hearing. 13 in immigration cases must, in order to prevail, allege some 14 cognizable prejudice fairly attributable to the challenged 15 process. 16 Cir. 2008). 17 prejudice without delving into the merits of Galluzzo s 18 underlying claims, including his contention that he is 19 eligible to adjust his immigration status. 20 that determination in the first instance, we remand to allow 21 the Department of Homeland Security to make a determination Parties claiming denial of due process Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d We cannot determine whether Galluzzo suffered Page 9 of 11 Rather than make 1 as to prejudice. 2 (2002) (discussing a determination of asylum eligibility and 3 holding that the proper course, except in rare 4 circumstances, is to remand to the agency for additional 5 investigation or explanation ). 6 B. 7 See I.N.S. v. Ventura, 537 U.S. 12, 16 Appeal from the District Court For the reasons stated by the district court, the 8 first to file rule applied to Galluzzo s claims. See 9 First City Nat'l Bank & Trust Co. v. Simmons, 878 F.2d 76, 10 79 (2d Cir. 1989) (explaining that [w]here there are two 11 competing lawsuits, the first should have priority, absent 12 the showing of balance of convenience or special 13 circumstances giving priority to the second (citations 14 omitted) (internal ellipses omitted)). 15 district court properly acted within its discretion when it 16 declined to exercise jurisdiction over Galluzzo s civil 17 action. Accordingly, the 18 Conclusion 19 For the above stated reasons, we REMAND Galluzzo s 20 petition to the Department of Homeland Security for further 21 proceedings consistent with this order. Page 10 of 11 The district 1 court s March 28, 2009 order dismissing Appellant s civil 2 action is hereby AFFIRMED. Page 11 of 11
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
