The United States Court of Appeals for the First Circuit issued a decision on May 22, 2019 to deny an Irish citizen’s petition for review of a final order of removal. O’Riordan v. Barr, 5/22/19.
The Petitioner, Dylan O’Riordan, was admitted to the United States as a child through the Visa Waiver Program (“VWP”), then overstayed his visa by more than seven years.
When O’Riordan was taken into DHS custody in September 2017, he indicated a desire to contest his removal on “other” grounds; writing “I came here as a child not knowing the consequences with my parents. I now have a [U.S. citizen] child here in the United States who needs me.”
O’Riordan argued that “[b]ut for the order of removal and his detention, [he] would be eligible to adjust his status to that of a lawful permanent resident” as the “the spouse of a U.S. citizen[.]”
The Court cited section 8 U.S.C. 1151(b)(2)(A)(i) and explained that since O’Riordan was not married to his spouse at the time of the issuance of the administrative order of removal, he could not have contested his removal on the basis of his relationship to her at that time.
O’Riordan additionally argued in his reply brief that, at the time of his admission into this country through the VWP, he could not have had the requisite intent (“knowingly and intelligently”) to waive a federal constitution right – the right to the process due under the Fifth Amendment.
O’Riordan also complained that he is worse off now, having been admitted to the United States pursuant to the VWP, than if his parents would have exercised an option of seeking his admission through some other means.
The Court noted that O’Riordan did not address the issue of intent until his reply brief and held “an argument raised for the first time in a reply brief comes too late to be preserved on appeal.” United States v. Freitas, 904 F.3d 11, 22 (1st Cir. 2018). Additionally, the Court found that O’Riordan failed to show how the fact that his parents could have chosen not to seek his admission through the VWP was relevant to his contention that he was prejudiced by the deprivation of process that he identified.
In light of all of the foregoing, the Court denied O’Riordan’s petition for review.
Lally Immigration Services, LLC is closely following the proceedings and will provide updates as they become available. If you have questions about the Visa Waiver Program or the expedited removal process, call (617) 870-1000 or send an email to [email protected].
