In this blog, I have written a lot about the visa waiver program – on September 26, 2010,  October 31, 2010, January 16, 2011, and January 29, 2011  – and written other places, such on the ILW website  and the now defunct Immigration Law Today magazine.  I have also litigated the issue. The conclusion from all this writing and analysis is that for six years aliens and attorneys have been on notice, at least in the the 9th Circuit, that when filing for adjustment of status as a visa waiver entrant, the alien has no recourse to the courts if the adjustment is denied. For the last three years everyone has been on notice, at least in the 9th Circuit, that a visa waiver applicant who overstays cannot adjust status. The third, seventh, and tenth circuits agree and the fifth, sixth, and eighth circuits  appear to. The curiosity of this is that despite how the courts of appeals, the final arbiters of the meaning of statutes, except for the Supreme Court, which refused to weigh in, and the curiosity that the Solicitor General of the United States took the position that visa waiver applicants can adjust status despite overstaying, it seems that only the San Diego USCIS district office is routinely denying adjustment applications of visa waiver overstays. No where else was it happening in California. Throughout the United States attorneys are not reporting anything but that visa waiver applications, even for overstays, are being approved. What makes “America’s finest city” so “special. Why if you are a Spaniard who files for adjustment of status after overstaying a visa in San Diego, can ICE come to your home at 5 a.m. and throw you in detention and then throw you on a plane home, but in the rest of the country you get a green card in the mail?

As a San Diego attorney, I have been hearing this question a lot. More significantly, I have been hearing, “What can we do about it? Save us? I’ll pay you anything, just save us? In response, I present my analysis: The federal district courts are closed to us. Momeni made that clear. The San Diego District is on sound legal footing. You can file for reconsideration, but as the law is clear – a visa waiver overstay cannot adjust – there is really no point, particularly if USCIS already knows of your particular hardships. The only real avenue is to get busy with the work of trying to come back to the United States from abroad though a United States Consulate. (more…)

Appealing a case denied by U.S. Citizenship and Immigration Services can be quite expensive. If a visa is denied, reopening, reconsidering, or appealing costs $630 – often as much or more than the fee for the underlying benefit denied. The denial of a naturalization application is appealable with a fee of $650.  The total fee for an application to naturalize is $680. When I think of appealing, my first instinct is to think that there is an ambiguity in the law or the application in the law and one has to appeal to either have the higher body clarify the meaning of the law or its application. In the courts of appeal are many appeals in immigration cases where the issue is whether a certain crime is an aggravated felony or a crime of moral turpitude, the conviction for which can have immigration consequences. There is true uncertainty and valid differences of opinion. What I do not initially consider as a reason to appeal is that the government is flat-out making a mistake. To get the government to fix its mistake one must shell out an astronomical amount of money. For clients, who tend to believe what the government says, there is doubt that their attorney gave the correct advise – “Why did you say I was eligible for this relief when the government says right here (pointing to the denial notice) that I am not?” Then, there can be consternation that a fee of more than $600 (not including attorney’s fee) is necessary to correct the mistake. (more…)