Kerry Bretz Immigration Law Blog on Lawyers.com

On January 26, 2011, Bretz & Coven, which is a New York City immigration law firm, won a major victory in the U.S. Court of Appeals for the Second Circuit for Visa Waiver Program (VWP) entrants ordered deported without a hearing.

In Galluzzo v. Holder, 2011 U.S. App. LEXIS 1566 (2d. Cir. N.Y. Jan. 26, 2011), the Second Circuit held that a VWP entrant has a constitutional right to a hearing absent waiver of that right and that absent proof of such waiver, it is a violation of due process rights to deport a VWP entrant without a hearing.  The Court found the record silent as to whether Mr. Galluzzo waived his right because the Government had not submitted a Form I-94W Departure Record signed by Mr. Galluzzo.  The Second Circuit declined to adopt the presumption that status as a VWP entrant alone is de facto proof of waiver of a right to contest removal and held that it would not “presume away an evidentiary problem of the Government’s own making.”  The case was remanded to determine prejudice, including whether Mr. Galluzzo is eligible for adjustment of status.

In 1995, Mr. Giorgio Galluzzo entered the United States from Italy on a 90-day tourist visa issued through the Visa Waiver Program and subsequently overstayed.  Seven years later, in 2002, he filed for adjustment of status based on an approved I-140 employment petition under INA §245(i).  The application was left pending for many years.  In 2008, he went to what he thought was a second interview on his adjustment application, at which point he was informed that his adjustment of status application had been denied in 2007. 

Mr. Galluzzo was then isolated from his attorney and interviewed by an FBI agent, who represented that if he assisted in a criminal investigation regarding the mafia, his green card application would be approved.  When Mr. Galluzzo stated that he did not have any information relevant to their investigation, the FBI agent said, “I don’t think there is anything I can do here.”  Mr. Galluzzo was thereafter served with a removal order without affording him a hearing on the ground that he waived any right to be heard when he entered the United States through the Visa Waiver Program. He was then detained by Immigration and Customs Enforcement (“ICE”). 

Bretz & Coven filed a petition for review of his removal order in the U.S. Court of Appeals for the Second Circuit, arguing that Mr. Galluzzo did not waive his right to a removal hearing and that the Government had not submitted an executed I-94W Departure Record, and therefore that his due process rights were violated by the issuance of the removal order without a hearing.  He also argued that his I-485 was erroneously denied and that he was in all respects eligible for adjustment of status under INA § 245(i).  The Government argued that even absent proof that he waived his right, Mr. Galluzzo did not have a constitutional right to a removal hearing and that Mr. Galluzzo’s status as a VWP entrant alone was a de facto proof that he waived his right to contest removal.

Citing to Plyler v. Doe, 457 U.S. 202, 210 (1982) which held that “Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments,” the Second Circuit held that Mr. Galluzzo had a constitutional right to a hearing absent waiver.  Furthermore, citing to Johnson v. Zerbst, 304 U.S. 458, 464 (1938), which held that the Court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights,” the Court found that absent proof of a waiver, specifically, an executed I-94W Departure Record, Mr. Galluzzo suffered a violation of his right to due process when he was denied the opportunity for a hearing prior to the issuance of the order.  Because the Court could not determine whether Mr. Galluzzo had suffered prejudice “without delving into the merits of Galluzzo’s underlying claims including his contention that he is eligible to adjust status,” it remanded to the Department of Homeland Security to make a determination as to prejudice.

Argued by Amanda Gray, Bretz & Coven, LLP, NY (David K.S. Kim, Matthew Guadagno, Jules E. Coven, Kerry W. Bretz, the Brief).