Written by: Stephen Manning
Bayo v. Napolitano, No. 07-1069, — F.3d —-, 2010 WL 174231, (7th Cir.Jan. 20, 2010)
En banc, the CA7 is a tough nut to crack.Oral argument was heart-stopping.The questions came fast and hard: it seemed that every egg in the petitioner’s basket had been cracked.The question for us became: just how bad were we going to lose?
It was clear from the opening sentence of the Seventh Circuit’s first en banc immigration decision that the court was not fond of the petitioner. “Mohammed Bayo is not the most sympathetic of litigants,” Judge Wood dryly observed. She listed off his flaws: Mr. Bayo, a citizen of Guinea, had stolen a Belgian passport and used it to enter the United States; through his fraud, he was able to take advantage of the generous terms of the Visa Waiver Program (VWP) that the United States has set up for residents of certain favored countries. Given the Court’s dislike for Mr. Bayo’s actions, we were not surprised that it upheld his deportation order.
Then, in a Harry Truman-Chicago Tribune moment, we realized that the court’s decision, though unfavorable to Mr. Bayo, notably advances the constitutional rights of immigrants in theUnited States.The nut was cracked!
As most readers of this blog will know, residents of VWP nations can enter theUnited Stateswithout first obtaining a visa, in exchange for waiving their right to contest removal in the future. But it is not uncommon for VWP entrants who have overstayed their visas to seek adjustment of status, and USCIS often approves these cases without fuss. That was not to be the case for Mr. Bayo. When, after four years in theUS, he tried to become a lawful permanent resident through his marriage to aUnited Statescitizen, DHS issued an administrative removal order against him.
Bayo appealed, raising two principal arguments. First, he contended that he should be able to contest his removal and adjust status because at the time he signed the VWP waiver, he did not fluently speak English and did not know what he was signing. Second, he urged that under a plain reading of the Immigration and Nationality Act (INA), “immediate relatives” (including spouses ofUnited Statescitizens) are authorized to adjust status irrespective of the VWP waiver.
Initially, Mr. Bayo enjoyed some success in the Seventh Circuit. It’s possible that this was due more to the Government’s overreaching than to the merits of his own case. Although the right to a knowing and voluntary waiver of a constitutional right is a longstanding feature of Anglo-American jurisprudence, the Office of Immigration Litigation (OIL) argued that immigrants like Mr. Bayo have no constitutional right to a knowing or voluntary waiver, since the VWP waiver is entered into while they are at the border, seeking admission. Of course, theNewarkairport where Mr. Bayo entered theUSis not literally a border, but is considered, under a longstanding “entry fiction” in immigration cases, to be tantamount to a border. It didn’t matter, according to OIL, that VWP entrants were prospectively waiving the constitutional rights that they would acquire throughUSresidency. At first OIL also seemed to put no limit on the reach of its logic; under OIL’s initial theory (which it later tempered somewhat), the government could trick or coerce immigrants into waiving their right to a hearing.
Judge Rovner, the author of the Seventh Circuit’s original opinion, rejected this logic with an equally sweeping theory of her own. Citing to the Supreme Court’s recent Boumediene v. Bush, 128 S. Ct. 2229 (2008) decision concerning the right to habeas of Guantanamo detainees, Judge Rovner noted that the Constitution applies, in some circumstances, even outside the US. Therefore, the panel ordered Mr. Bayo’s case remanded for a hearing concerning whether his waiver was knowing and voluntary. Unsurprisingly, OIL filed a petition for rehearing, and Judge Rovner’s liberal reading of the Constitution on behalf of an unsympathetic immigrant may have been the linchpin to the Court’s granting, for the first time ever, en banc review of an immigration case.
On January 20, 2010, the en banc Court issued its decision in Bayo v. Napolitano. It first considered an important threshold question: whether it even had jurisdiction. OIL had argued that the Court did not have jurisdiction to review Mr. Bayo’s claim that he should be allowed to adjust status, because the VWP provision precluded review of all but the essential questions as to the Government’s deportation authority. The Court seems to have rejected this argument, since it found that it had jurisdiction to consider every issue before it, including the adjustment of status issue.
Next, the Court rejected an argument Mr. Bayo had raised in supplemental briefing after oral argument: that he was not subject to the VWP because he is not actually a citizen of a VWP country. The Court noted that the Board of Immigration Appeals had rejected this analysis in a prior published case, and the Court found that it was required to defer to the Board’s reasonable analysis.
The Court then went on to consider whether Mr. Bayo was entitled to a knowing and voluntary waiver, finding a simple and elegant way to avoid the contentious question of what “extraterritorial” rights immigrants have when they are at the border. Since Mr. Bayo had been residing in theUSfor years, the Court held that the “entry fiction” does not apply to him. The right he was waiving-the right to a hearing to contest his removal-is a constitutional right guaranteed to immigrants, like Mr. Bayo, who have lived in theUS. Unlike contractual rights, constitutional rights can, the Court said, only be waived through a knowing and voluntary waiver. And the Court refused to adopt a presumption of knowledge, as OIL had urged. Citing to the amicus brief filed by AILA and the Legal Assistance Foundation of Chicago, the Court explained that this course could negatively impact immigrants with strong and sympathetic claims to stay in theUS, like trafficking victims. Thus, the Court ultimately found that there must be some process to assure that VWP waivers are knowing and voluntary, although it expressed no opinion as to what that process should look like, and it speculated that the problem may be largely solved, given a newly implemented waiver process that is available in 21 languages.
Unfortunately for Mr. Bayo, the Court found that even if his waiver was unknowing and involuntary, he still could not win his case. The reason, according to the Court, was that he couldn’t show prejudice, since if he hadn’t signed the waiver, he wouldn’t have been allowed in theUS in the first place. The original panel had asserted that Mr. Bayo was prejudiced because he lost his right to pursue adjustment of status; if he had refused to sign he could have returned toGuinea, obtained a visa, come back, married, and adjusted status. Judge Wood found that this type of prejudice was simply too speculative.
The Court also rejected Mr. Bayo’s claim that he ought to be able to adjust status in the United States. This decision came as no surprise, since the majority of courts have held that a VWP entrant cannot adjust status, unless the application is filed within the 90-day term of their nonimmigrant visa. Still, these decisions are problematic from an immigration practitioner’s perspective. First, as those of us who do this work know, VWP overstays adjust status all the time. (Hopefully the Bayo decision will not dramatically change USCIS’s current practice of allowing most of these adjustments to go forward.) Second, the 90-day distinction is counterintuitive, since USCIS is typically suspicious of a tourist nonimmigrant who immediately gets married. Such newly-weds are thought to have “immigrant intent,” which USCIS considers entirely the wrong way for a tourist to be thinking about her trip. This is not to say that tourists never fall in love, as those of us who have seen Roman Holiday know full well. Maybe Judge Wood was confusing Sandra Bullock for Audrey Hepburn. Whatever.
It is no joke that Mr. Bayo lost, and the Court’s decision raises the specter of additional denials of VWP adjustment of status cases in the future. At the same time, the decision contains a thoughtful and important analysis of the constitutional rights of immigrants in the US. After Bayo, VWP entrants in the Seventh Circuit who can show some type of prejudice should be able to demand a hearing as to whether their waiver was knowing and voluntary. For example, an immigrant presumably could show prejudice who can show facts existing at the time of her entry that would have given rise to a claim for immigration relief. The decision also could pave the way for challenges, in appropriate cases, to unknowing and involuntary stipulated orders of removal. In the end, one could say that Mr. Bayo won the war, even if he lost his battle.