Written by: Stephen Manning

– blogging by Stephen Manning, AILA Amicus Chair; Laura Lunn, 2010 Immigration Litigation Summer Fellow

The Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have published decisions on the Visa Waiver Program and eligibility for adjustment of status.  We review those cases here, describe several open questions, and invite readers to contact the AILA Amicus committee with pending cases raising these issues (or other issues we’ve missed).  If you are in a circuit that has not spoken on the issue and are briefing or filing a petition for review, AILA Amicus may be interested in participating in your case.

The state of the circuit law, while uniform, is dispiriting.  The leadings cases are: Bradley v. Attorney General, — F.3d –, 2010 WL 1610597 (CA3 April 22, 2010);  McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6^th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010);  Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and  Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

The legal question is seemingly straightforward: can a VWP entrant who is admitted to the United States under the authority of § 217 seek adjustment of status under § 245(a) as an immediate relative?

At the outset, we wish to make clear our views that notwithstanding some rumblings from some USCIS field offices (and contrary to HQ policy), USCIS retains jurisdiction to adjudicate VWP entrant adjustment applications – even those filed passed the 90-day period of authorized stay.  In fact, USCIS retains jurisdiction to adjudicate the VWP entrant adjustment application even after a removal order is entered.  The questions presented in the circuit court cases involve an ostensible conflict between §§ 217 and 245 that both preclude and provide for adjustment as a defense to removal.  The ostensible statutory conflict does not implicate USCIS authority.  By regulation, jurisdiction over an adjustment application rests with USCIS unless EOIR has jurisdiction. 8 C.F.R. § 245.2(a)(1).  EOIR only has jurisdiction when removal proceedings are extant. 8 C.F.R. § 1245.2(a)(1).  Asylum-only proceedings are not considered removal proceedings, Zine, 517 F.3d at 543, and VWP entrants are not entitled (normally) to removal proceedings.  Accordingly, asylum-only proceedings or the unconventional removal process for VWP entrants would not withdraw USCIS jurisdiction.

USCIS field offices continue to adjudicate (as they should) VWP entrant adjustment applications filed past the 90-day period.  We are aware of the language in both Momeni and Bayo that, out of context, suggests otherwise. Momeni, 521 F.3d at 1096-97; Bayo, 593 F.3d at 507.  But we think that Judges Kleinfeld and Wood were more interested in literary flair rather than a legal statement.  AILA Amicus encourages readers to contact us or your AILA Chapter Chair if a local policy is different or changes. See also AILA Spring 2007 ICE Liaison Minutes (March 20, 2007) (providing for case by case determination if a VWP applicant will be permitted to proceed through adjudication); Shabaj v. Holder, 602 F.3d 103 (CA2 2010) (applicant permitted to seek affirmative adjustment after § 217 removal).

The legal fight involves § 217’s requirement that all VWP entrants waive their rights to a conventional removal hearing under § 240 and not contest removal (unless seeking asylum).  Litigants have mounted three types of challenges.

Challenges to § 217(b)’s Waiver of Rights Requirement

The Seventh Circuit decision in Bayo describes the challenge. A citizen of Guinea, Mr. Bayo entered the U.S. on the VWP fraudulently with a stolen Belgian passport. When Mr. Bayo married a U.S. citizen more than four years later and applied for adjustment of status, DHS was able to link him to the stolen passport and ordered him removed without a hearing because he entered under the VWP and waived his right to such procedural due process. Mr. Bayo claims he did not understand English and he should not be subject to the waiver of his rights as a result.   The Seventh Circuit held that since Mr. Bayo was waiving the right to a hearing to contest his removal he was waiving a constitutional right guaranteed to immigrants.  Such a waiver must be knowing and voluntary. This must be so because there are noncitizens such as trafficking victims with strong and sympathetic claims to stay in the United States who must have some process to assure that VWP waivers are knowing and voluntary.  The Seventh Circuit expressed no opinion as to what that process should look like, and it speculated that the problem may be largely solved, given the advent of ESTA (see below).

In Bradley, the petitioner likewise challenged the knowing and voluntary aspect of his waiver claiming that he was intoxicated when he entered into it.

In both Bayo and Bradley, the circuit courts ruled against the litigants on the basis that neither could prove prejudice for the violation of the constitutional right.  As such the procedure necessary to ascertain if a waiver is knowing or voluntary described as necessary in Bayo has not yet been developed.

Challenges to § 217(b)(2)’s No Contest Provision

Litigants have challenged the scope of the no contest clause as applied to immediate relative adjustments citing to § 245(c)(4)’s language barring adjustment applications for individuals “other than an immediate relative”.  Scope challenges fall into three categories.

The first category involves a blanket challenge to the no contest provision as inapplicable to immediate relative adjustment of status applications no matter when filed.  Under this theory, the no contest provision’s scope is limited by § 245(c)(4)’s language and does not preclude a defensive adjustment application.  For example, in Zine, the petitioner sought to have his immediate relative adjustment application considered in removal proceedings.  He had sought asylum affirmatively, his asylum application was denied, and asylum-only removal proceedings were commenced.  While in asylum-only proceedings, he married and sought to reopen his removal proceedings to seek adjustment before the Immigration Court.  The IJ and Board denied his motion.  He was in asylum-only proceedings and the IJ and Board refused to consider his adjustment application.

The second category rests on the claim that an adjustment of status application filed after the 90-day VW period expired but prior to any § 217(b) action is taken to remove the VWP entrant entitles the applicant to an adjudication of the application, and if the application is denied, a hearing before an IJ to renew the application.  Only the cases of Momeni and Schmitt involved applicants who had already been ordered removed under § 217 at the time they applied for adjustment of status.  Additionally, most courts have specifically ruled that precluding an application for adjustment of status that is filed after the 90-day VW period avoids a conflict between § 217(b)’s no contest provision and § 245(c)(4)’s immediate relative exception to the bar on adjustment of status applications following VWP entry.

A third category, also based on the “no conflict argument,” is that § 217(b)’s no contest provision is limited in scope and does not apply to VWP entrants who file for adjustment prior to the expiration of the 90-day VW period.  Under this theory, such applicants are entitled to renew or defend an adjustment application in conventional removal proceedings.  Several of the cases discuss the possibility, e.g., Lacey, 499 F.3d at 519 n6, but only the Ninth Circuit and Tenth Circuits have held so directly.  Freeman, 444 F.3d at 1033-34;  Momeni, 521 F.3d at 1097; Schmitt, 451 F.3d at 1097.

Notably, no court has ever explicitly discussed the effect of § 245(c)(2)’s immediate relative exception to the bar on being in unlawful immigration status on the date of filing the adjustment of status application.  This challenge would involve arguing that § 245(c)(2) and (c)(4) combine to create an immediate relative exception to § 217(b)’s no contest provision where the adjustment of status application is filed after an overstay but prior to a § 217 removal order being entered, because (c)(2) does not create a conflict but rather a specific exception to § 217(b).  The absence of an explicit discussion might not mean much for litigants in the circuits with published decisions, but for others, it remains an open question.

Challenges to Adequacy of the Record

There are different ways of challenging the record, though none of the litigants to date have been successful.  In Bradley, the petitioner argued that the record did not contain contain his signed waiver of rights and that this is an element of the removal ground that must be proven by clear, convincing evidence.  In the Bayo litigation, the authority of the officer to order Mr. Bayo deported was at issue but had not been exhausted by the petitioner and not decided by the Seventh Circuit. The record contained at least three different removal orders in different formats entered at different times by different individuals.  In practice, officers such as a “Deportation Officer” or “Supervisory Detention and Deportation Officer” may enter a removal order under § 217.  The regulations limit the power to order a § 217 removal to only a district director. 8 C.F.R. § 217.4(b).  It was unclear in the record if any of these officers had the authority to issue the removal order. See 8 C.F.R. § 1.1(o) (defining district director).  The record assembled by the agency in unconventional removal proceedings such as § 217 (or reinstatement under § 241(a)(5)) may also be subject to challenge as incomplete or inadequate. See Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (CA9 1989) (“The whole administrative record, however, is not necessarily those documents that the agency has compiled and submitted as ‘the’ administrative record.”).

The cases seem to be chasing after a moving legal regime as CBP has just announced the elimination of the form I-94W.  Every traveler from a VWP country seeking admission to the United States must now seek pre-travel authorization through ESTA – the Electronic System for Travel Authorization. See AILA Doc. No. 09031863.  The implementation of ESTA raises a whole set of legal questions that we will set aside for another post – including some very interesting constitutional questions and questions involving victims of human trafficking.