Riera-Riera v. Lynch, No. 13-73062 (9th Cir. 2016)
Annotate this CasePetitioner, a native and citizen of Peru, seeks review of the BIA's refusal to consider his application for adjustment of status in proceedings limited to consideration of relief related to asylum. Petitioner fraudulently entered the United States under an Italian passport in order to gain the benefits of the Visa Waiver Program (VWP). The court joined its sister circuits and held that an ineligible alien who fraudulently enters under the VWP is bound by the VWP’s limitations, including its waiver of any challenge to deportation other than asylum. The court also concluded that the lack of a nexus to a protected ground is dispositive of petitioner's asylum and withholding of removal claims. Finally, with respect to the CAT claim, the court found nothing in the record compelling a contrary conclusion to that of the IJ. Accordingly, the court denied the petition.
Court Description: Immigration. The panel denied Harold Riera-Riera’s petition for review of the Board of Immigration Appeals’ decision refusing to consider his adjustment of status application because he entered the United States using a fraudulent Italian passport to gain the benefits of the Visa Waiver Program (VWP). The panel held as a matter of first impression that the BIA properly concluded that Riera-Riera could not seek adjustment because he entered, albeit fraudulently, under the VWP. The panel held that an alien who fraudulently enters under the VWP is subject to the VWP’s limitations, including waiving any challenge to deportation other than asylum. The panel also held that the BIA did not err in denying Riera-Riera’s applications for asylum, withholding of removal and relief under the Convention Against Torture, because he failed to establish a nexus to a protected ground, and the harm he suffered was insufficient for CAT protection. RIERA-RIERA V. LYNCH 3
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