Ferreyra v. Barr, Nos. 18-3021 & 19-2055

962 F.3d 331

Franco Damian FERREYRA, Petitioner,

v.William P. BARR, Attorney General of the United States, Respondent.

Nos. 18-3021 & 19-2055

United States Court of Appeals, Seventh Circuit.

Argued April 28, 2020

Decided June 16, 2020

Daniel W. Thomann, Attorney, Chicago, IL, for Petitioner.

Jocelyn Wright, Attorney, Department of Justice, Civil Division, Immigration, Litigation, Washington, DC, for Respondent.

Before Easterbrook, Ripple, and Scudder, Circuit Judges.

Ripple, Circuit Judge.

Franco Damian Ferreyra, a citizen of Argentina, seeks review of an order of the Board of Immigration Appeals mandating his removal from the United States.² The Board upheld the validity of a waiver, signed upon Mr. Ferreyra's entry into the United States, that pre-vents Mr. Ferreyra from contesting removal for reasons other than persecution and torture. The Board determined that Mr. Ferreyra was ineligible for relief on either of those grounds, and that, given the waiver, it could not consider his requests for cancellation of removal based on family hardship.

We conclude that the record supports the Board's determination that Mr. Ferreyra did not present a case warranting relief because of a credible fear of persecution or torture. We further conclude that the Board correctly held that the waiver is valid and that Mr. Ferreyra therefore cannot present a claim for cancellation of removal based on family hardship. Accordingly, we deny the petition for review.

I.BACKGROUND

In December 2001, Mr. Ferreyra, then thirteen years old, entered the United States under the Visa Waiver Program, 8 U.S.C. § 1187. This program allows foreign visitors to come to the United States for ninety days without first obtaining a visa. Id. § 1187(a)(1). To qualify, the visitor must have a passport from a participating country and waive the right to contest removal, except based on asylum. Id. § 1187(a) – (b). At the time of entry, the visitor must "present a completed, signed Form I–94W, Nonimmigrant Visa Waiver Arrival/Departure Form." See 8 C.F.R. § 217.2(b)(1). Because Mr. Ferreyra was a minor at the time, the waiver was signed on his behalf by one of his parents.³ Mr. Ferreyra's visa expired on March 20, 2002, but he did not leave the United States.

In 2018, the Government charged Mr. Ferreyra as removable because he had stayed in the United States beyond the ninety-day limit permitted by his visa. Mr. Ferreyra conceded the allegation. Specifically, he admitted that he had entered the United States under the Visa Waiver Program, that he had "signed and agreed to the conditions stated on Form I–94W, ... which explained to [him] the conditions of admission under the Visa Waiver Program," and that he overstayed his authorized period.⁴ He further admitted that, as a condition to entering the United States under the program, he had "waive[d] [his] right to contest any removal action, other than on the basis of an application for asylum."⁵ He also declared that he wished to apply for asylum and protection. Immigration authorities therefore placed him in "asylum-only" proceedings.

In seeking asylum (and two related forms of relief, withholding of removal and relief under the Convention Against Torture), Mr. Ferreyra claimed that, if removed to Argentina, he would face persecution based on his membership in a particular social group—his family.⁶ He also sought cancellation of removal, based on hardship to his family if he were removed.

At his immigration hearing, Mr. Ferreyra related that, when he was a child in Argentina, his uncle had sexually assaulted him. He further stated that his uncle still lived there and that he feared his uncle might harm him if he sought help from the Argentinian police. He testified that his uncle threatened him and warned that he would kill him if he told anyone about the assault. Mr. Ferreyra added that all he has in Argentina is family, and because his uncle is a part of his family, he was terrified to go back.

The IJ denied Mr. Ferreyra asylum and related relief. The IJ concluded that Mr. Ferreyra had failed to show that his uncle had targeted him based on his family membership. Rather, the IJ found, the evidence showed that Mr. Ferreyra was a "victim of convenience."⁷ Furthermore, Mr. Ferreyra had not demonstrated that the government of Argentina was unable or unwilling to protect him. When he was assaulted, he was a child with no ability to ask the police for help; however, that did not mean that the government would have been unable to help him had it known of the crime. The IJ also ruled that Mr. Ferreyra had not presented any evidence that he would be tortured if he returned to Argentina. Finally, the IJ denied Mr. Ferreyra's request to apply for cancellation of removal based on family hardship, reasoning that, in the asylum-only proceedings, Mr. Ferreyra could apply only for asylum, withholding of removal, and protection under the Convention Against Torture.

The Board, acting through a single member,⁸ dismissed Mr. Ferreyra's appeal.⁹ The Board held that Mr. Ferreyra had not demonstrated that a protected status—his family membership—was a "central reason" for any persecution.¹⁰ It also rejected, for lack of jurisdiction, Mr. Ferreyra's contention that he had been placed erroneously in asylum-only proceedings and should have been allowed to apply for cancellation of removal on the basis of family hardship.

II.DISCUSSION

A.

We first address whether Mr. Ferreyra's visa waiver is valid and enforceable.

Implicating both constitutional due process concerns and statutory rights, Bayo v. Napolitano , 593 F.3d 495, 503 (7th Cir. 2010) (en banc), a visa waiver is nevertheless valid if it is made knowingly and voluntarily. Id. at 505 ; see Wigglesworth v. INS , 319 F.3d 951, 959 (7th Cir. 2003). Mr. Ferreyra submits that the record contains an insufficient basis to conclude that his waiver was made knowingly and voluntarily.

Mr. Ferreyra supports this contention by noting that he was only thirteen years old when he entered the United States. He maintains that no evidence suggests that he (as opposed to a parent) personally signed the visa waiver. In any case, he continues, he could not have signed it knowingly because he was a child and could not have understood the implications of such a waiver.

The record does not include the Form I–94W, Nonimmigrant Visa Waiver Arrival/Departure Form from Mr. Ferreyra's entry to the United States. See 8 C.F.R. § 217.2(b)(1). It does contain, however, some information from Mr. Ferreyra's form, drawn from a government database. This database information reflects that Mr. Ferreyra did not personally sign the visa waiver but confirms that he was accompanied by his father. Moreover, at his bail hearing, Mr. Ferreyra admitted that the waiver had been signed for him by his parent, and we see no reason why judicial notice cannot be taken of that document. Mr. Ferreyra also has acknowledged that he was admitted to, and authorized to remain in, the United States under the Visa Waiver Program, which requires a valid signature.¹¹ See Giri v. Lynch , 793 F.3d 797, 802 (7th Cir. 2015) (explaining that admitting the key facts providing the basis for removal withdraws the issue from controversy). Finally, at the time of Mr. Ferreyra's entry, it was standard practice for a parent or guardian to sign Form I–94W for a child under the age of fourteen.¹² Absent evidence to the contrary, we may assume that standard operating procedures were followed. See Nardea v. Sessions , 876 F.3d 675, 680 (4th Cir. 2017) ("[W]here evidence establishes a visitor was properly admitted as a waiver tourist, we may presume (absent clear evidence showing otherwise) that the government necessarily obtained the entrant's waiver ...."). There is no evidence that the waiver was not knowing, voluntary, or invalidly signed by a parent.¹³

Regardless, Mr. Ferreyra's contention that his waiver is invalid fails because of his own admission to the charge that he is eligible for removal based on his violation of the terms of the Visa Waiver Program. Specifically, Mr. Ferreyra admitted that he effectively "signed and agreed to the conditions stated on" the waiver form, "which explained ... the conditions of admission under the Visa Waiver Program," including that he had "waive[d] [his] right to contest any removal action, other than on the basis of an application for asylum."¹⁴ This concession establishes, at the very least, that in the ensuing years of his overstay, he was aware of his continuing obligation to leave the United States and that he failed to do so.

B.

In any event, even if we were to assume that Mr. Ferreyra's waiver is not valid, he must demonstrate prejudice. See Bayo , 593 F.3d at 506 ; see also Alimi v. Gonzales , 489 F.3d 829, 834 (7th Cir. 2007). He has not made this showing.¹⁵ The Board correctly determined that he is not eligible for asylum.

Mr. Ferreyra argues that he is eligible for asylum because an uncle abused him as a child. He contends that family membership was "one central reason" for that persecution.¹⁶ But even if we assume that his uncle's abuse was persecution, the Board was not required to find that his family membership was "one central reason" for it. A person's family can be a "particular social group" whose members may be eligible for asylum if membership is a central reason for persecution. See W.G.A. v. Sessions , 900 F.3d 957, 965 (7th Cir. 2018) ; 8 U.S.C. § 1158(b)(1)(B)(i). The petitioner also must show, however, that the persecution was based on that membership. See Orellana-Arias v. Sessions , 865 F.3d 476, 484 (7th Cir. 2017).

Mr. Ferreyra contends that if family membership gave the uncle access to him, that alone shows the requisite nexus. We cannot accept this argument. A causal link between family membership and the persecution does not arise "simply because a particular social group of family members exists and the family members experience harm." Gonzalez Ruano v. Barr , 922 F.3d 346, 354 (7th...