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Before Boudin and Lipez, Circuit Judges, and Smith, *fn1 District Judge.

Gentian Hajdari is a native and citizen of Albania who entered the United States on a fraudulent Italian passport in December 2004. Italy participates in the Visa Waiver Program (“VWP”), which waives the visa requirement for entry into the United States for citizens of certain countries. 8 U.S.C. § 1187(a) (2006). The program requires that anyone invoking this exemption to enter the United States also waive any right “to contest, other than on the basis of an application for asylum, any action for removal.” Id. § 1187(b)(2).*fn2

Hajdari was arrested at the airport on arrival in the United States; thereafter, in subsequent criminal proceedings, he pled guilty to false use of a passport, and he then applied for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”). The gist of the asylum claim was physical abuse Hajdari had allegedly suffered based on his support of the Democratic Party in Albania. The Immigration Judge (“IJ”) rejected the asylum claim on the merits, the Board of Immigration Appeals (“Board”) upheld the decision, and this court affirmed.

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