NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 12-1025 ___________

VAIDAS KULBERKIS, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

Petition for Review of an Administrative Order of the Department of Homeland Security (Agency No. A205-016-173) ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) November 15, 2012

Before: RENDELL, ALDISERT and NYGAARD, Circuit Judges

(Opinion filed November 19, 2012) ___________

OPINION OF THE COURT ___________

PER CURIAM

Vaidas Kulberkis, a citizen of Lithuania, petitions for review of an order of

deportation issued by United States Immigration and Customs Enforcement (“ICE”), an

arm of the Department of Homeland Security. For the reasons that follow, we will deny

the petition. I.

Because we write primarily for the parties, who are familiar with the background

of this case, we discuss that background only briefly here. In June 2009, Kulberkis was

admitted to the United States pursuant to the Visa Waiver Program (“VWP”). Under that

program, “a qualifying visitor may enter the United States without obtaining a visa, so

long as a variety of statutory and regulatory requirements are met.” Bradley v. Att‟y

Gen. of the U.S.,

(3d Cir. 2010). “Once admitted under the VWP, a

visitor may remain in the United States for 90 days.”

(citing

(a)(1)).

“[A] VWP visitor must waive his or her right to contest the government‟s admissibility

determinations and removal actions, except that the alien may contest removal actions on

the basis of asylum.” Bradley,

(citing

(a)-(b)). “[U]nlike

the ordinary removal case, a VWP entrant‟s removal „shall be determined by the district

director who has jurisdiction over the place where the alien is found, and shall be effected

without referral of the alien to an immigration judge for a determination of

deportability.‟” Bradley,

(quoting

(b)).

Kulberkis ultimately remained in the United States beyond the VWP‟s 90-day

period. In March 2011, he married Dawn Petro, a United States citizen, in New Jersey.

In December 2011, ICE‟s Field Office Director for Newark, New Jersey, ordered that

2 Kulberkis be deported for having remained in the country for a time longer than

permitted. Kulberkis now challenges that order.1

II.

Kulberkis presents two arguments in support of his petition. We consider them in

turn.

He first contends that, although he was admitted to the United States as a VWP

entrant, the record fails to establish that he waived his right to a removal hearing. We

previously considered a similar argument in Bradley. There, Petitioner Heathcliffe

Bradley claimed that his waiver under the VWP was invalid because it was not knowing

and voluntary. Bradley,

. Because that claim amounted to a due

process challenge under the Fifth Amendment, we explained that Bradley could not

prevail unless he established that he was “substantially prejudiced” by the allegedly

invalid waiver.

. We ultimately concluded that Bradley had not made that

showing, for “[h]ad Bradley known the contents of the waiver and refused to sign, he

would be in the same position as he is now — subject to summary removal without a

hearing — and he would not now be eligible to adjust his status on the basis of his

marriage to [his United States citizen wife].”

. Because we are not persuaded

1 We have jurisdiction over Kulberkis‟s petition based on our authority to review final orders of removal. See

(a)(1); Bradley,

n.1. Although ICE‟s order was styled as an order of “deportation,” not an order of “removal,” “[w]e have repeatedly held, in a variety of contexts, that the terms „deportation‟ and „removal‟ are interchangeable.” Sarango v. Att‟y Gen. of the U.S.,

(3d Cir. 2011). 3 that there is a meaningful distinction between Bradley and the case at bar, our reasoning

in Bradley forecloses relief here.2

Kulberkis‟s remaining argument is that his deportation order is void “because it

was issued without allowing [him] to apply for marriage-based adjustment of status”

under

(c)(4).3 (Pet‟r‟s Opening Br. 1.) Again, we considered a similar

argument in Bradley. There, we held that, “although Bradley was once statutorily

eligible under

(c)(4) for the adjustment he now seeks, he may not, after

the expiration of his 90-day stay [under the VWP], adjust his status as a defense to

removal.” Bradley,

. Although Kulberkis maintains that his case is

distinguishable from Bradley “because Bradley has filed his application for adjustment of

status . . . and it was denied,” (Pet‟r‟s Opening Br. 3), our holding in Bradley did not

hinge on those facts. Rather, it hinged on the fact that Bradley applied to adjust status

after the expiration of the VWP‟s 90-day period. Because Kulberkis now seeks to do the

same, our reasoning in Bradley controls and forecloses relief here.

In light of the above, we will deny Kulberkis‟s petition for review.

2 Given our resolution of this claim, we deny as unnecessary the Government‟s motion to supplement the record with evidence that Kulberkis indeed executed the VWP waiver. 3 Although § 1255(c)(4) “generally makes VWP entrants ineligible for the „adjustment of status‟ remedy,” that provision “carves out an exception for VWP entrants seeking to adjust their status on the basis of an immediate-relative petition. The term „immediate relative‟ includes the spouse of a U.S. citizen.” Bradley,

n.6 (citing

(b)(2)(A)(i)). 4