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4 Badia-Tavas:Momeni V Chertoff

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  • 1. Copyright © 2009, American Immigration Lawyers Association. Reprinted, with permission, from Immigration & Nationality Law Handbook (2009–10 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org. MOMENI V. CHERTOFF AND RELATED CASE LAW: CAN VISA WAIVER CLIENTS STILL MARRY AND ADJUST? by M. Mercedes Badia-Tavas, Melissa Harms, and Leslie Jewell * INTRODUCTION You are sitting across your desk from a couple you have just met. They have been dating for years, just can’t separate again, and have decided to marry in the United States. She is tearfully and haltingly explaining that while she came as a temporary visitor without a visa, she cannot now go back to her home country for months of separation from her U.S. citizen boyfriend. They are the prospective clients. At the end of this con- versation, you must assess their U.S. options including whether they have an adjustment of status application that will succeed. You are about to embark on the path of representing these clients at a time when the law in this area may be in flux. The following is a discussion of the law and policy regarding this type of case. In particular, this article addresses the U.S. Ninth Circuit Court of Appeals’ case, Momeni v. Chertoff, 1 related case law in other cir- cuits, and the growing trends regarding visa waiver entrants who file for adjustment of status either as an af- firmative application or in removal proceedings. BACKGROUND Visa Waiver Program Under the Visa Waiver Program (VWP), citizens of certain countries can enter the United States for 90 days without a visa. 2 Nationals of the following countries are allowed to participate in the VWP without hav- ing to obtain a B-1 or B-2 visa: Andorra, Iceland, Norway, Australia, Ireland, Portugal, Austria, Italy, San Marino, Belgium, Japan, Sin- gapore, Brunei, Latvia, Slovakia, Czech Republic, Liechtenstein, Slovenia, Denmark, Lithuania, South Korea, Estonia, Luxembourg, Spain, Finland, Malta, Sweden, France, Monaco, Switzerland, Germany, the Netherlands, United Kingdom, Hungary, New Zealand. * M. Mercedes Badia-Tavas of Badia-Tavas Law Group, Ltd. located in Chicago (www.btlawgroup.net) has over 15 years experience. Her practice focus is on business immigration for companies, hospitals, and investors in a variety of industries, with a limited family-based clientele. She is co-chair of the CBP Liaison Committee, AILA Chicago Chapter. At the national level, she has been active on various committees, participated in panels, and co-authored articles for AILA’s annual conference handbook. She graduated from Tulane University Law School in 1993 and earned a Bachelor of Arts degree from Agnes Scott College in Atlanta in 1986. Melissa Harms, of the Law Office of Melissa Harms, has more than 10 years of experience representing employers in em- ployment and immigration matters in the San Francisco Bay Area. Ms. Harms has advised large corporations, public universi- ties, and small start-up ventures on a variety of immigration issues. Additionally, Ms. Harms has represented individuals in PR, naturalization, and asylum applications. She teaches courses at both California State University and the University of Califor- nia for HR professionals on immigration law. Ms. Harms earned a bachelor’s degree from Duke University and her law degree from the University of Georgia. Leslie A. Jewell practices immigration law in the Washington, D.C., area with Jewell & Gammon LLP. Ms. Jewell earned her law degree from the University of Houston School of Law (1987). She then joined the U.S. Department of Justice to serve at the immigration court in San Antonio (1988–89) and at the Board of Immigration Appeals in Washington, D.C. (1989–93). Ms. Jewell managed a firm in Bellingham, WA, where her practice focused on Canadian border issues, and later in San Fran- cisco, where her practice focused on researchers and J waiver applicants. Ms. Jewell previously served on AILA NorCal’s Ex- ecutive Board. 1 Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. 2008). 2 INA §217. 873 Copyright © 2009 American Immigration Lawyers Association
  • 2. 874 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10 While being able to travel without a visa is convenient for many, VWP entrants are permitted entry without a visa with the condition that the entrant waive his or her right to contest removal—other than on the basis of asylum. 3 The “no-contest” provision of the VWP is a fundamental aspect of the program. If someone could enter under the VWP and then contest removability, it would seem to defeat the purpose of the program, which is to make it easy for certain nationals to come to the United States, spend their tourist dollars, and then leave without all of the hassles involved in visa issuance. Of course, every year, thousands of visitors using the VWP change their plans and decide to remain—many for marriage and love. Adjustment of Status Adjustment of status (AOS) refers to the procedure for becoming a lawful permanent resident without hav- ing to leave the United States. 4 According to Immigration and Nationality Act (INA) §245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the attorney gen- eral, in his or her discretion and under such regulations as he or she may prescribe, to that of an alien lawfully admitted for permanent residence if: 1. the alien makes an application for such adjustment, 2. the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and 3. an immigrant visa is immediately available to him at the time his application is filed. INA §245(a) effectively screens out certain categories of aliens as ineligible by establishing affirmative requirements for adjustment. It is important to note, however, that while INA §245(c) explicitly excludes aliens who entered under a visa waiver program from adjusting status, INA §212(c)(4) indicates that other than an “immediate relative,” a nonimmigrant visitor without a visa under the visa waiver program is ineli- gible for adjustment. The term, ‘‘immediate relative’’ is defined at INA §201(b) as a U.S. citizen’s spouse, minor children who are under the age of 21, and parents as long as the citizen is at least 21 years old. There- fore, INA §212(c)(4) specifically carves out an exception and allows immediate relatives to adjust their status under INA §245(a). Still, the opportunity to adjust for visa waiver entrants already in immigration proceedings may be nar- rowed by the government’s enforced waiver of the right to contest any action for removal, aside from an ap- plication for asylum. 5 The regulation at 8 CFR §217.4(b)(1) also effectively provides for removal without a hearing in the case of a VWP visitor who overstays the 90-day period of authorized stay. Therefore, these applicants may not have the opportunity to present an adjustment of status application for adjudication. Government Policy Prior to Momeni and related case law, where a VWP entrant married a U.S. citizen and then filed to adjust status based on that marriage before being placed in removal proceedings for having overstayed, U.S. Citizenship and Immigration Services (USCIS) was amenable to approving the adjustment of status application. Even after Immigration Customs and Enforcement (ICE) involvement, the VWP entrant was of- ten permitted to adjust status—either affirmatively with USCIS—or before an immigration judge if a Notice to Appear (NTA) had been issued—without being removed under the VWP provisions. MOMENI AND RELATED CASE LAW This article details the case law that addresses visa waiver entrants who apply for adjustment of status, whether affirmatively, or after they have been placed in proceedings. As this area of law, is quickly evolving, it is important to note that this section covers cases, in chronological order, through February 2009 when this article went to print. 3 INA §217(b). 4 INA §245(a). 5 INA §217(b). Copyright © 2009 American Immigration Lawyers Association
  • 3. MOMENI V. CHERTOFF AND RELATED CASE LAW: CAN VISA WAIVER CLIENTS STILL MARRY AND ADJUST? 875 Schmitt v. Maurer: In 2006, the Tenth Circuit 6 finds that the only bar to adjustment of status for a VWP entrant arises when the individual overstays and is ordered removed before an adjustment of status application is filed. In Schmitt v. Maurer, 7 the petitioner entered the United States on April 14, 1999, as a visitor for pleasure under the VWP. He remained in the United States past the date authorized by USCIS and eventually married a U.S. citizen with whom he had a child. The wife filed an I-130 immediate relative petition, which, for rea- sons unclear, was never approved. Petitioner claimed that his wife became abusive and the couple divorced in early 2004. On July 16, 2004, ICE issued an order of removal, stating that petitioner had remained in the United States longer than authorized, and that as an entrant under the VWP, he had waived his right to contest removal, except to apply for asylum. Petitioner filed a self-petition as the spouse of an abusive U.S. citizen, and after being taken into custody, filed a petition for writ of habeas corpus in district court seeking a stay of removal. Petitioner was removed on September 2, 2004, and the district court dismissed the habeas petition as moot. Petitioner sought review before the court of appeals. Petitioner argued that the district director erred in executing the removal order when his self-petition for immigrant status as a battered spouse was pending. 8 The government countered in relevant part, that a pend- ing self-petition is not a basis to contest a removal order under the VWP. 9 Petitioner argued that INA §245(a), which provides for adjustment to lawful permanent resident status without having to leave the country, over- rides the VWP’s provision requiring entrants to waive their right to contest removal. 10 The court disagreed. While the regulations at 8 CFR §1245.1(b)(8) allow a person admitted under the VWP to apply for adjust- ment of status, it does not entitle that person to administrative proceedings, “which would not otherwise have been provided.” 11 The court further noted that the VWP unequivocally required petitioner to waive his right to contest removal other than an application for asylum, and, therefore, asylum is the only basis on which he can seek relief from removal. 12 The court rejected petitioner’s contention that there is a conflict between the statutory provisions for the VWP, which does not allow an entrant to contest removability on the basis of adjustment of status, and the statu- tory provisions for adjustment of status, which specifically allow VWP entrants to apply for adjustment of status. The court pointed out that the only bar to adjustment of status for a VWP entrant arises when the individ- ual overstays and is ordered removed before an adjustment of status application is filed. 13 The court briefly ex- amined the legislative history and statutory text of the VWP and the adjustment of status provisions and found that the expedited procedures for removal of VWP overstays were consistent with congressional intent to mini- mize the risk of abuse of the VWP. 14 The court held that the district director did not err in removing petitioner without first adjudicating his self-petition for immigrant status. The petition for review was denied. Freeman v. Gonzalez: In 2006, the Ninth Circuit 15 allowed for the VWP entrant to file an AOS application as long as the application is filed prior to the expiration of her 90-day period of admission. In Freeman v. Gonzalez, 16 the petitioner had married her U.S. citizen husband abroad in February 2001. A few months later, in June 2001, she entered the United States without a visa under the VWP. In September 2001, before the expiration of her authorized period of stay, her husband filed an immigrant visa petition and 6 The Tenth Circuit includes Utah, Wyoming, Colorado, New Mexico, Kansas, and Oklahoma. 7 Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. 2006). 8 451 F.3d at 1095. 9 Id at 1097. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 The Ninth Circuit includes Washington, Montana, Idaho, Oregon, California, Nevada, and Arizona. 16 Freeman v. Gonzalez, 444 F.3d 1031 (9th Cir. 2006). Copyright © 2009 American Immigration Lawyers Association
  • 4. 876 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10 she filed an application to adjust status with USCIS. While the visa petition and adjustment application were pending and less then two years after their marriage, petitioner’s husband died. USCIS ruled that petitioner was no longer eligible for adjustment of status, not entitled to an immigration judge hearing and ordered her to leave the country. In relevant part, the Ninth Circuit held that once a VWP entrant properly files an adjustment application, the “no-contest clause” of INA §217(b) no longer applies and the person may pursue adjustment of status. 17 The court reasoned that the filing of the adjustment application triggers the procedural safeguards of INA §245 and its implementing regulations, including the rights to renewal and review of a denied adjustment ap- plication before and IJ. 18 “Indeed, having granted VWP visitors the right to seek an adjustment of status, it makes no sense for Congress to have intended that these preferred visitors by definition, citizens of certain favored countries, should have second-class status once they enter into the adjustment of status process,” the court reasoned. 19 The court further reasoned that its conclusion best served the purpose of INA §245, which was to eliminate the need to depart and reenter to obtain permanent resident status. 20 Moreover, the court found that, by granting petitioner work authorization upon filing her adjustment application, USCIS sug- gested that she was no longer considered as a VWP entrant and instead “treated her like any other adjustment of status applicant, including no longer being subject to a 90-day stay limit.” 21 The court held that the adjustment of status provision superseded the “no contest” provision in the case of a petitioner who had married a U.S. citizen prior to entering on the VWP and filed an application for adjustment of status prior to the expiration of her 90-day period of admission. 22 It remanded the case to the district director for further consideration consistent with its opinion and vacated the removal order against her. Ferry v. Gonzales: In 2006, the U.S. Tenth Circuit Court of Appeals held that a VWP cannot apply for any form of relief from deportation, including the renewal of an AOS application, other than through an application for asylum, even if the AOS application is submitted affirmatively and the applicant is then taken into ICE custody. In Ferry v. Gonzalez, 23 the Tenth Circuit affirmed Schmitt v. Mauer. Ciaran Ferry was a native of North- ern Ireland, who entered the United States in December 2000 under the VWP and remained in the United States beyond his period of authorized stay. He later filed an affirmative AOS application with USCIS based on his marriage to a U.S. citizen. When Ferry appeared at his USCIS interview on January 30, 2003, ICE took him into custody and issued an INA §217(b) order for overstaying his authorized period of stay on the VWP. On February 19, 2003, the USCIS district director approved the I-130 petition, but the AOS application was denied on grounds of inadmissibility for a prior conviction for a crime of moral turpitude, entering on the VWP and lying about the conviction, and as a matter of discretion. Ferry remained in ICE custody for almost 23 months, and eventually obtained release from DHS custody. Ferry was referred to the immigration judge for asylum only proceedings as a member of the IRA in Northern Ireland, which was denied; he filed a peti- tion for habeas corpus in federal court; and filed a petition for review of the DHS district director’s adminis- trative order of removal. The three cases were consolidated before the circuit court. In Ferry, the Tenth Circuit reaffirmed its decision in Schmitt v. Maurer by stating, “an alien admitted un- der the VWP cannot apply for any form of relief from deportation, including adjustment of status, other than through an application for asylum.” 24 The court distinguished this case from Freeman because the benefici- 17 444 F.3d at 1037. 18 Id. at 1034. 19 Id. at 1037. 20 Id. at 1036. 21 Id. 22 Id. at 1043. 23 Ferry v. Gonzales, 457 F.3d 1117 (10th Cir. 2006). 24 Id. at 1127. “We recognized that although a VWP alien may be eligible to apply for adjustment of status, the applicable regu- lations clarified that “an alien’s ability to apply for adjustment of status does not entitle the alien to administrative proceedings which would not otherwise [have] been provided.” Id. at 1096 (citing 8 CFR §245.2(a)(5)(ii)). We also observed that any con- continued Copyright © 2009 American Immigration Lawyers Association
  • 5. MOMENI V. CHERTOFF AND RELATED CASE LAW: CAN VISA WAIVER CLIENTS STILL MARRY AND ADJUST? 877 ary had filed his AOS application after his period of authorized stay expired under the VWP. The court also held that the petitioner was not entitled to review the denial of his AOS application before an IJ pursuant to 8 CFR part 240 because of the last sentence of 8 CFR §245.2(a)(5)(ii): “Nothing in this section shall entitle an alien to [removal] proceedings under section 240 of the Act who is not otherwise entitled. The petitioner who entered on the VWP and overstayed his authorized stay is an alien “who is not otherwise entitled” 25 un- der the INA to review before the IJ the denial of an AOS as an immediate relative. 26 Lacey v. Gonzalez: 27 In 2007, the U.S. Sixth Circuit Court of Appeals 28 held that an alien who entered on the VWP does not have a due process right to review of a AOS application by a IJ or a federal court under subject-matter jurisdiction. In this case, the court affirmed the Tenth Circuit in its line of decisions regarding VWP entrants applying for AOS after the expiration of their 90-day authorized stay. Vincent Lacey, a native and citizen of the United Kingdom entered the United States on the VWP on Au- gust 7, 2003. He completed an I-94W form and was admitted 90 days under the VWP. Three days before the expiration of his authorized stay, Lacey married Jacqueline Darnell, a U.S. citizen. Then later, in April 2004, Darnell filed an I-130 petition concurrently with the I-485 Application for Lacey. 29 Apparently, Lacey and his wife were scheduled for an interview at the USCIS Memphis field office on May 19, 2005, but a few days before the interview Lacey received another notice dated May 10, 2005, cancelling the interview. 30 USCIS approved Darnell’s I-130 petition, thereby recognizing that the couple’s marriage was valid. But, the AOS was denied and Lacey was placed in removal proceedings. Lacey did not have an affirmative interview with USCIS. Instead, on January 19, 2006, ICE agents arrested Lacey at his home and issued a Notice of Intent to Deport. The USCIS decision on the AOS application, dated November 7, 2005, denied his application for AOS on inadmissibility grounds. Apparently, USCIS decided that Lacey had convictions from the United Kingdom on drug offenses and crimes of moral turpitude, without defining them, which made him ineligible for AOS. He petitioned to vacate the removal order entered against him and remand his case to Department Homeland Security for an administrative hearing. He argued DHS violated his procedural due process rights by denying him an administrative hearing prior to denying his application for an AOS and entering the re- moval order. The Sixth Circuit flatly disagreed. Petitioners brief stated that Lacey may not have understood the terms of the waiver completely given his limited education and inexperience with travel and admission requirements. 31 However, unlike the later case of Bayo, which is summarized below, the court did not address the issue of whether the waiver was knowing and voluntary. flict between the statutory provision permitting a VWP alien to apply for adjustment of status and the VWP’s waiver provision was created by the petitioner’s decision to file an application for adjustment of status after he had already overstayed his visa and had been ordered removed. Id. at 1097. Accordingly, we reaffirmed that an alien admitted under the VWP “cannot apply for any form of relief from deportation, including adjustment of status, other than through an application for asylum.” Id. at 1096; see Itaeva v. INS, 314 F.3d 1238, (10th Cir. 2003) at 1242 (holding that the VWP alien’s request for suspension of de- portation was barred under 8 USC §1187(b)(2)). 25 Id. at 1128. “We hold that an alien who overstays his authorized time under the VWP and files for an adjustment of status after he has overstayed, but before the issuance of a removal order, has waived his right to contest a subsequent removal order through a renewed application for adjustment of status, or to otherwise seek review of the previously filed adjustment of status. To conclude otherwise would frustrate Congress’ intent in establishing the VWP, and would be contrary to the statutes and regulations governing an alien’s right to an adjustment of status. Accordingly, the BIA properly concluded that the IJ was without jurisdiction to consider Ferry’s eligibility for adjustment of status after he was ordered removed and referred to asy- lum-only proceedings.” 26 Id. discussing the 10th Circuits decision in Schmitt v Maurer, 451 F.3d 1092,1096–97 (10th Cir. 2006), which the Ferry court affirmed. 27 499 F3d 514 (6th Cir. 2007). 28 The Sixth Circuit includes Michigan, Ohio, Kentucky, and Tennessee. 29 Final Brief for Petitioner (NO. 06-3180). 30 Id. 31 Id. Copyright © 2009 American Immigration Lawyers Association
  • 6. 878 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10 The court said, “an alien participating in the VWP is not entitled to judicial review” especially if the “alien violated the terms of his visa waiver by remaining in the United States after the expiration of his authorized stay.” 32 The court ruled they had no subject matter jurisdiction to review the denial of Lacey’s AOS applica- tion and cited Ferry. The court specifically stated: [w]e now join the Tenth Circuit [in Ferry holding] that an alien who overstays his authorized time under the VWP and files for an adjustment of status after he has overstayed, but before the issuance of a removal order, has waived his right to contest a subsequent removal order through a renewed application for ad- justment of status, or to otherwise seek review of the previously filed adjustment of status [application]. Ferry, 457 F.3d at 1128. 33 Zine v. Mukasey: In 2008, the U.S. Eighth Circuit Court of Appeals 34 held that an alien who enters the United States on the VWP using a fraudulent passport from a VWP country remains subject to the no- contest waiver of removal except for asylum-only proceedings and no other issues of discretionary relief can be addressed. In Zine v. Mukasey, 35 L’Aid Zine, a native and citizen of Algeria, fled his country in April 1996. He trav- eled from Turkey to Thailand, China and then the United States. He entered the United States on a stolen French passport with his picture but under another name. In San Francisco, he was issued an I-94W Entry Document valid for 90 days. He destroyed the passport but kept a copy of the I-94W document. He over- stayed his authorized stay and eventually moved to Minnesota. Zine filed an application for asylum, with- holding of removal, and relief under the Convention Against Torture on July 21, 2000. Over the course of a three-year period with six hearings, the IJ denied the asylum claim on grounds of credibility, the BIA af- firmed and denied a timely motion to reconsider or reopen based on the fact he married a U.S. citizen in Au- gust 2002, while the asylum-only proceeding was pending before the IJ. The I-130 petition was eventually approved while the administrative appeal was pending, but the BIA denied the motion to reopen the AOS ap- plication. The petitioner then filed petitions for review of both orders before the Eighth Circuit, which denied the petitions. The court held that pursuant to statute and regulations under the VWP, removal is limited to asylum-only proceedings and no other issues of discretionary relief or eligibility can be addressed 36 In the court’s opinion, the applicable regulations allow IJs to review AOS applications in removal proceedings not in asylum-only pro- ceedings applicable under the VWP. 37 Further, the court held that an alien who enters the United States under the VWP with a fraudulent VWP country passport remains subject to VWP’s restrictions on asylum-only pro- ceedings despite not being a national of a VWP country.38 The court specifically referred to 8 CFR §217.4(a)(1). 39 32 Lacey v Gonzales, 499 F.3d 514 (Mar. 9, 2007) at 518. 33 Lacey v. Gonzales, 499 F.3d at 519. 34 The Eighth Circuit includes North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri, Arkansas 35 517 F3d 535 (8th Cir 2008). 36 Ibid at ____ This proceeding before the IJ is referred to as an asylum-only proceeding because, consistent with 8 USC §1187(b)(2) “all parties are prohibited from raising or considering any other issues, including but not limited to issues of ad- missibility, deportability, eligibility for waivers, and eligibility for any other form of relief. 8 CFR §1208.2(c)(3)(i). 37 Id. at __ “Thus, under the regulations, a VWP alien who is ordered removed because he overstayed his ninety-day authorized visit and is referred to an asylum-only proceeding “has waived his right to contest that removal through an application for adjust- ment of status.... To conclude otherwise would frustrate Congress’ intent in establishing the VWP, and would be contrary to the statutes and regulations governing an alien’s right to an adjustment of status.” Ferry v. Gonzales, 457 F.3d 1117, 1128 (10th Cir. 2006); accord Lacey v. Gonzales, 499 F.3d 514 (6th Cir. 2007). We agree with this interpretation of the statutes and regulations.” 38 Id at page 543. 39 8 CFR §217.4(a)(1). Copyright © 2009 American Immigration Lawyers Association
  • 7. MOMENI V. CHERTOFF AND RELATED CASE LAW: CAN VISA WAIVER CLIENTS STILL MARRY AND ADJUST? 879 Bayo v Chernoff: In 2008, the U.S. Seventh Circuit Court of Appeals 40 held that due process requires the waiver under VWP to be knowing and voluntary and therefore, did not deal with the effect of a VWP entry for an AOS applicant. In Bayo v. Chernoff, 41 the Seventh Circuit did not deal with the issue directly because there was no record of proceedings to determine the validity of the waiver under the VWP. The decision addressed the constitu- tional argument that the waiver must be knowing and voluntary and DHS must provide a hearing to make the determination. At the time of this writing, the government petitioned for rehearing in the case and, the court granted the petition for rehearing, so the decision is vacated and oral arguments are scheduled for May 2009. 42 The American Immigration Law Foundation (AILF) is filing an amicus brief in the case along with other interested parties. Mohammed Bayo, a citizen of Guinea, entered the United States in 2002 on the VWP using a Belgian passport he purchased. He was authorized to stay for 90 days until October 11, 2002. He spoke very little English and had a fifth-grade education. He was inspected and issued and I-94W document, which was not translated into his native language, which evidenced his entry under the VWP. He remained in the United States beyond his period of authorized stay, eventually married a U.S. citizen, and applied for AOS based on his marriage in 2006. Shortly after he filed his AOS application, ICE learned he entered the United States us- ing a stolen Belgian passport. He was arrested and placed in custody. He admitted he was in the country ille- gally and handed over the Belgian passport. ICE concluded he overstayed his 90-day admission under the VWP, and in light of his signed waiver, issued an INA §217(b) order. Mr. Bayo was never interviewed by USCIS despite the fact that an affirmative AOS application was filed. He was taken into custody while in his home in Indiana by ICE and placed in proceedings. He did not receive a removal hearing or an AOS inter- view based on his affirmative AOS application. The court held that “waivers of rights under the VWP must be knowing and voluntary. By so doing, we adhere to the longstanding general principle that waivers of constitutional rights must be knowing and volun- tary,” and not governed by principals of contract law. 43 The court stated that there must be an “intentional relinquishment of a known right.” 44 The court stressed the importance of the fact finding process to determine if the waiver was given knowingly and voluntarily. Since there was no record because there was no AOS in- terview or hearing before an IJ, the court remanded the case to USCIS for administrative processing. Now, the decision is vacated and scheduled for a rehearing. Although this case did not address the issue of whether a visa waiver entrant can adjust his or her status, it did allow a new avenue for challenging removal orders for visa waiver entrants who are denied a chance to contest removal under the no-contest provision of INA §217(b). Momeni v. Chertoff: In 2008, the Ninth Circuit held that allowing a VWP entrant to proceed with an application for AOS after the 90-day period violated the no-contest provision of the INA. In Momeni v. Chertoff, 45 petitioner entered the United States as a tourist on the VWP on November 30, 2005. In July 2006, petitioner was taken into custody for having overstayed his period of admission. In Sep- tember, petitioner filed for adjustment of status based on his April 11, 2006, marriage to a U.S. citizen. While acknowledging the decision in Freeman, the court noted that the Freeman exception to the “no con- test” provision was borne out of the fact that Freeman (1) was eligible for adjustment of status at the time she arrived; (2) applied within 90 days of her admission; and (3) would have been granted adjustment of status but 40 The Seventh Circuit includes Wisconsin, Illinois, and Indiana. 41 535 F.3d 749 (7th Cir. 2008). Vacated January 2009 and rehearing granted; oral arguments scheduled for May 16, 2009. 42 Information from provided by Lisa Polumbo of Chicago Legal Assistance Foundation on February 12, 2009, on AILA Chap- ter Listserve. 43 555 F.3d at 757. 44 Id. at 755, citing United States v. Olano, 507 U.S. 725, 733 (1993). 45 521 F.3d 1094 (9th Cir. 2008). Copyright © 2009 American Immigration Lawyers Association
  • 8. 880 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10 for the death of her husband. 46 The court found Freeman presents only a narrow exception to the “no contest” provision. The court then went on to determine that none of the relevant circumstances of Freeman pertained to Momeni. 47 In Momeni, petitioner married and filed for adjustment of status after the 90 days had expired. The Momeni court writes: If a Visa Waiver Program entrant does not leave when the 90 days expires, life in the United States goes on. It may go on for many years before the alien comes to the government’s attention. There are legal means by which aliens may marry United States citizens, obtain visas, and obtain adjustment of status, but overstaying the 90 days for tourists in the Visa Waiver Program is not among them. If it were, our com- ment in Freeman that there are “likely to be a small percentage of VWP entrants in Ms. Freeman’s posi- tion,” would not be correct. 48 Agreeing with the Tenth Circuit in Schmitt v. Maurer, the court concluded that to permit a VWP entrant to proceed with an application for adjustment of status filed after the 90-day period “would create an avoidable conflict between the adjustment of status statute and the no contest provision.” 49 The decision of the district court was affirmed. McCarthy v. Mukasey: 50 In January 2009, the U.S. Fifth Circuit Court of Appeals held that when a VWP entrant affirmatively files the AOS application outside the 90-day period, the no-contest provision controls, and the VWP entrant cannot contest a removal order. This case is the latest, as of this writing, limiting the eligibility of aliens who enter on the VWP to apply for AOS as an immediate relative, after the expiration of their authorized stay. The Fifth Circuit in January 2009 held that an alien waived her due process right to a hearing by entering on the VWP. Specifically, the court found that when an alien knowingly and voluntarily signs the VWP waiver of any right to contest any action for removal other than on the basis of an asylum application, that she cannot contest removal based on a pending adjustment of status application to an immediate relative under 8 CFR §245.2. The court narrowly restricted the right of the visa waiver entrant to adjust despite the fact that the regulations clearly state the alien was eligible for adjustment of status as the spouse of a U.S. citizen. 51 Instead, the court used the fact that she filed an AOS application after the expiration of her period of authorized stay as a way to exclude her from the rights afforded by INA §245(c)(4). On February 7, 2006, the petitioner, a citizen of the United Kingdom, entered the United States as a non- immigrant under the VWP. She was authorized to remain in the United States until May 7, 2006. She married her U.S. spouse on May 5, 2006, before the expiration of her authorized stay. However, she filed her AOS application based on her marriage one year later and after the expiration of her authorized stay. On May 10, 2007, a few days after filing the AOS application, ICE issued a notice of intent to remove the petitioner for remaining in the United States beyond the period of her authorized stay. By signing the I-94W she received on entry, ICE maintained that she waived her right to contest any action for removal and to seek judicial re- view. ICE issued an INA §217(b) order for expedited removal the same day. The applicant timely filed for review and to stay the removal proceedings; however, the court denied the stay, and she was removed. The court then proceeded to confirm its jurisdiction to review only the constitutional claims. This was a case of first impression for the Fifth Circuit and the petitioner argued that the exception in Freeman should apply be- cause she was lawfully admitted, became eligible for an immigrant visa as an immediate relative, and then filed an AOS application. 46 521 F.3d at 1096. 47 Id. 48 Id. at 1096–97. 49 Id. at 1097. 50 ___F.3d___, 2009 WL 91710 (5th Cir. 2009). 51 8 CFR §245.1(b)(8). Any alien admitted as a VWP Program visitor under the provisions of section 217 of the Act and part 217 of this chapter other than an immediate relative as defined in section 201(b) of the INA. Copyright © 2009 American Immigration Lawyers Association
  • 9. MOMENI V. CHERTOFF AND RELATED CASE LAW: CAN VISA WAIVER CLIENTS STILL MARRY AND ADJUST? 881 The Fifth Circuit disagreed with the application of Freeman and distinguished the case. The court viewed that Freeman applied to AOS cases filed within the 90-day period of authorized stay. However, in this case the Petitioner applied for AOS after the expiration of her authorized stay. Of particular interest is the court’s statement: The Sixth, Eighth, and Tenth Circuits have also concluded that aliens who file for an AOS after the expira- tion of the ninety-day period waive their right to contest a subsequent removal order. 52 The Tenth Circuit’s analysis in Ferry v. Gonzalez 53 is particularly instructive. The Fifth Circuit agreed with the holding of Ferry and denied the petitioners request for review of her re- moval. The fact the Petitioner applied for AOS prior to the issuance of a removal order was “of no conse- quence” in the court’s opinion. She could not circumvent the “unambiguous language of 8 USC §1187” by subsequently filing an application to adjust status, 54 Moreover, the court held that she knowingly and volun- tarily waived her due process rights to review before an immigration judge by entering on the VWP and sign- ing the I-94W. GOVERNMENT REACTION IN THE NINTH CIRCUIT In light of Momeni, practitioners in the Ninth Circuit 55 are proceeding with caution when filing AOS ap- plications for foreign nationals who have entered on the visa waiver program. Based on an informal poll by contacting the AILA chapter chairs in the Ninth Circuit, there were no re- ports of USCIS failing to adjudicate affirmative AOS applicants for VWP entrants and instead either putting these applicants in removal proceedings or referring the case to ICE for a INA §217(b) order. However, the issue has been raised by AILA members in these jurisdictions with varied results. Las Vegas Based on an agreement with the local AILA members, ICE will wait for USCIS to adjudicate the underly- ing AOS application. If USCIS denies the application for an issue unrelated to the VWP entrance, then ICE will take the applicant into custody for removal and issue an INA§217(b) order. It is important to note that before this agreement was reached, USCIS was taking VWP entrants with affirmative AOS applications pending on their behalf to ICE to issue an INA §217(b) order before adjudicating the AOS application. Sacramento The Sacramento local office confirmed that the timing of the filing of the adjustment of status application has no bearing on the adjudication. However, the office stated: If USCIS denies an I-485application for an applicant who entered the U.S. under the VWP, these are the con- sequences in terms of review:, (1) if the applicant applied for AOS prior to the expiration of their VWP status, then USCIS would issue an NTA (Freeman); or (2) if the applicant applied for AOS after the expiration of their VWP status, then USCIS would refer the case to ICE/DRO for a [INA §] 217[b] order (Momeni).56 Los Angeles The USCIS Los Angeles district office has confirmed that it will adjudicate the adjustment of status appli- cation even if the 90 days have lapsed. 57 52 See Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008); Lacey v. Gonzalez, 499 F.3d 514, 519 (6th Cir. 2007); Ferry v. Gon- zalez, 457 F.3d 1117, 1128 (10th Cir. 2006). 53 457 F.3d 1117 (10th Cir. 2006). 54 McCarthy v. Mukasey, __ F.3d __, 2009 WL 91710 (5th Cir. 2009). 55 The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. 56 Local Office AILA/USCIS Minutes, Sacramento, Sept. 4, 2008. 57 E-mail from Los Angeles AILA Chapter Chair Noemi Ramirez, Feb. 2, 2009. Copyright © 2009 American Immigration Lawyers Association
  • 10. 882 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10 San Francisco When asked about the application of Momeni in San Francisco, the USCIS San Francisco district office re- sponded that it would not comment on a national policy issue, but that SF USCIS is bound by the Ninth Cir- cuit cases, including Momeni. 58 However, to date, there have been no reports of adverse action by either USCIS or ICE based on Momeni for visa waiver entrants who filed adjustment of status applications either inside or outside of the 90 day period of authorized stay. Other Ninth Circuit Districts Similarly, when polled, AILA members from San Diego, Fresno, Hawaii, San Jose, Oregon, and Wash- ington did not report adverse action by either USCIS or ICE based on Momeni for visa waiver entrants who filed adjustment of status applications either inside or outside of the 90-day period of authorized stay. Although the local USCIS districts in the Ninth Circuit have not been aggressively applying Momeni and related case law, many practitioners in these jurisdictions are wary as they fear that the local USCIS offices are waiting for guidance from USCIS headquarters before making any policy changes in accordance with Momeni and the related case law. GOVERNMENT REACTION IN OTHER CIRCUITS The following summary is an informal poll of this issue at various USCIS District Offices outside the Ninth Circuit. We have discussed this issue with AILA members in Chicago, which is in the Seventh Circuit, in Ohio and Michigan, which are in the Sixth Circuit, and in New Jersey, which is in the Third Circuit. Chicago In the Chicago field office, which is in the Seventh Circuit, affirmative AOS applications for VWP en- trants who have overstayed and married a U.S. citizen are being adjudicated. One AILA member reports that recently a client was given a very hard time during the interview and was threatened with deportation for fil- ing the application a couple of days after the expiration of the 90-day period of authorized stay. 59 This par- ticular case had no other negative facts besides the applicant’s status as a VWP overstay. In Bayo, which was also a Seventh Circuit case, ICE took the VWP entrant into custody despite the fact that he had an AOS ap- plication on file. This does not seem to be the normal practice in Chicago, and perhaps the result in Bayo was different because the Bayo applicant entered using a false passport. However, it is an open question whether ICE will detain VWP entrants with AOS applications in this circuit pending the outcome of Bayo, and the USCIS and ICE officers are aware of the issue. 60 Ohio In Ohio, which is in the Sixth Circuit, the USCIS field offices continue to allow VWP entrants who over- stay their period of authorized stay to affirmatively apply for AOS. However, USCIS adjudicators look closely at the applicant’s intent upon entry. If the AOS is denied, no Notice to Appear (NTA) is issued and ICE will detain and remove the applicant who entered on the VWP in accordance with INA §217(b). Michigan In Michigan, which is also in the Sixth Circuit, the USCIS field offices will adjudicate an affirmative AOS application filed by an immediate relative on behalf of a VWP entrant whose period of authorized stay has expired. However, if the AOS application is denied, members report that ICE will win the case before the immigration judge. It appears that ICE has not been aggressive on pursuing these cases of VWP entrants whose adjustment of status cases have been denied and is instead focusing on “absconders” with final orders for deportation. 58 Northern California AILA Listserve on Sept. 23, 2009. 59 Chicago AILA Listserve on Feb. 13, 2009. 60 Chicago AILA Chapter Listserve on Feb. 13, 2009. Copyright © 2009 American Immigration Lawyers Association
  • 11. MOMENI V. CHERTOFF AND RELATED CASE LAW: CAN VISA WAIVER CLIENTS STILL MARRY AND ADJUST? 883 ANALYSIS In reviewing Momeni and related case law, several critical issues arise. First, in applying the VWP’s “no contest” provision, the courts either fail to make any mention of the adjustment of status provision at INA §212(c)(4), which explicitly carves out the exception allowing immediate relative VWP entrants to adjust status, or they decide the “no-contest” provision under INA §217(b) somehow trumps INA §212(c)(4). In the current climate, it remains to be seen how the courts will recognize and meaningfully apply the provisions of INA §212(c)(4), which explicitly allows relief to a VWP entrant applying for AOS through an immediate relative. Second, while the courts appear to carve out a small exception of immediate relative VWP entrants eligi- ble to adjust, namely those following squarely within facts of Freeman, the courts fail to realize the practical impossibility that a strict reading of Freeman would bring. The Momeni court, for instance, was especially pleased by the fact that Freeman was married at the time of her entry and then applied for AOS within her 90-day authorized stay. In fact, the very fact that Freeman was married at the time of entry resulted in a de- nial of her adjustment of status for abusing the VWP when the case was remanded to the district court. 61 In- deed, the lack of nonimmigrant intent for those married at the time of VWP entry could effectively preclude all of those with facts similar to Freeman from adjusting their status. Moreover, even applying a variation of the Freeman exception, namely marrying after entry and then ap- plying for AOS within 90 days of the VWP entry, also raises the issue of possible fraud under INA §212(a)(6)(c), which could render the applicant inadmissible for purposes of the AOS application. By enter- ing the United States under the VWP and marrying and filing an AOS application soon after entry, USCIS could determine that the alien had immigrant intent upon entry. The Department of State’s Foreign Affairs Manual states that if the alien enters the United States on a nonimmigrant visa and files for adjustment of status 60 days after entry, that the Department of State will not entertain a recommendation that the person is inadmissible for fraud. 62 Therefore, many practitioners are counseling clients that if the AOS filing, and pos- sibly also the marriage, takes place between 60 and 90 days after entry, they are potentially avoiding removal under Momeni and related case law, while also insulating a client from a fraud finding under INA §212(a)(6)(c). It is important to note that reflecting back on at INA §212(c)(4), it is troubling that the Momeni and related decisions also apparently impose the Freeman requirement to have the adjustment of status application filed, at the very least, prior to the end of the VWP entrant’s 90-day stay. There is no legal requirement that imme- diate relatives maintain status under INA §212(c)(2), and yet the courts effectively impose this requirement on VWP entrants filing for adjustment of status as immediate relatives. COUNSELING THE CLIENT In light of the potential application of Momeni and related case law, practitioners are well advised to research the policy in their local ICE and USCIS jurisdiction. In particular, attorneys are well advised to research the pol- icy in the following situations: Married and AOS filed within 90 days of entry to the United States; Married within 90 days but AOS not filed within 90 days; and Not married within 90 days and AOS not filed within 90 days. Of these three options, the first is the only one that is currently making it through all district offices, to our knowledge. Of course, again, the issue of fraud will be ever-present with clients who select this accelerated route to marriage and permanent resident status. What is apparent is that the issue, as it relates to all three op- tions, is far from resolved. We anticipate significant litigation on these issues, and we hope to see a more meaningful discussion of INA §212(c)(4) and the fact that maintenance of status for immediate relatives is not a requirement under INA §212(c)(2). 61 See Freeman v. United States District Court, 489 F.3d (9th Cir. May 29, 2007). (Writ of mandamus denied). 62 9 FAM 40.63 N.4.7. Copyright © 2009 American Immigration Lawyers Association
  • 12. 884 IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10 Anyone who has represented an applicant for adjustment of status knows the great joy that comes when a couple is able to avoid separation or relocation and remain together in the United States. Your hard work as an advocate pays off when your client is granted permanent resident status and you know that perhaps, with- out your effective advocacy, your clients would have faced an extended separation. The more you and your client prepare for these issues, the greater your chances are for success. As advocates, we take these cases because we believe that these clients are entitled to protection under U.S. law. Copyright © 2009 American Immigration Lawyers Association

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