The Ninth Circuit changes course regarding Visa Waivers and adjustments

Saturday, September 20th, 2008
By: Jonathan MontagJ.D.

The Courts of Appeal makes some bad decisions, some very bad decisions, and then it makes decisions like Momeni v. Chertoff [1], so devoid of analysis and so contrary to existing precedent and immigration laws, that it is unfathomable how a three-judge panel would do it. Sadly, despite the case’s being plainly contrary to existing precedent and so deeply flawed in several respects, a petition for rehearing and suggestion for rehearing en banc was denied. The decision leaves the vast majority of aliens who entered under the visa waiver program unable to adjust their status in the Ninth Circuit with any degree of certainty that they will not be arrested and deported while it is pending.

I. Depending on the Kindness of Strangers

In 2005, I wrote an article, “Visa Waiver Adjustment Applicants Must Depend On The Kindness Of Strangers,”[2] in which I discussed a case in which I represented an alien who was admitted to the United States under the visa waiver program who filed an adjustment of status application. USCIS would not consider the application because the alien was in ICE custody under a removal order pursuant to INA § 217. The Court of Appeal decided that the alien could not challenge the inaction of USCIS because he had no rights pursuant to INA §217(b), the “no contest” provision[3]. I noted that the result of the holding in that case was ambiguity as to what would happen to a visa waiver entrant who applied to adjust status, writing:

It is wise to keep in mind that … when a visa waiver entrant files his adjustment of status application, he or she has no protection from summary deportation until he or she finally adjusts status. Until then, he or she is not protected by the statute that allows for adjustment of status, regulations and policy that require adjudications, or a Constitutional protection of equal protection, but rather, he or she, like Blanche DuBois in Streetcar Named Desire, must depend on the kindness of strangers.

II. The Court of Appeals Extends Rights to Visa Waiver Applicants

A reversal of fortunes came about in 2005 when the Ninth Circuit Court of Appeals issued Freeman v. Gonzales[4], which was to Ms. Freeman an unambiguous act of kindness to her and to all visa waiver entrants who can adjust status to that of permanent residents through immediate relatives. Ms. Freeman had two problems that brought her to the Ninth Circuit Court of Appeals. She entered under the visa waiver program. At the time of her admission she was married to a United States citizen. Before the expiration of her ninety day visa waiver period of admission, she filed an adjustment of status application. Her husband then died. The Court of Appeals concluded that the death of her husband after he filed a petition did not stop him from being an immediate relative so adjustment of status could continue. The Court then addressed the issue of whether she could adjust as a visa waiver entrant. It addressed to conflicting statutes, INA § 217, which creates a unique status of visitors who do not need to apply for visas. These visitors are disadvantaged in several ways. The Visa Waiver Program limits visa waiver entrants to a non-extendable[5] and non-changeable[6] and non-adjustable status[7]. An exception to the bar to adjustment of status exists, however, as part of INA § 245(c)(4)[8]. As the Freeman court put it:

… [INA § 245(c)(4)] provides that a [visa waiver entrant] may seek to adjust her status to that of a permanent resident through an immediate relative petition, the procedure invoked by the Freemans. See Faruqi v. Dep’t of Homeland Security, 360 F.3d 985, 986-87 (9th Cir. 2004) (noting that VWP visitors are eligible “for adjustment of status . . . on the basis of either (1) an immediate relative petition or (2) an application for asylum.”); see also 8 C.F.R. § 245.1(b)(8).[9]”

The Court also noted, “Once an adjustment of status application is filed, certain procedural safeguards are in place to ensure fair adjudication of the application. See generally 8 C.F.R. § 245[10].

The Freeman court concentrated on Congress’s specifically making an exception to the strictness of the visa waiver program at INA § 245(c)(4) and held that this provision meant that visa entrants could adjust under the section. The Court also reasoned that it would be anomalous to give this small class of aliens the right to adjust status notwithstanding the prohibitions of the visa waiver program but then deny them the ability to pursue that right with the protections of administrative review in immigration court and Board of Immigration Appeals, as well as judicial review. After Freeman, aliens did not have to rely on ICE’s kindness, but had the full panoply of rights afforded to aliens as long as INA § 245(c)(4) applied to them. Practitioners in the Ninth Circuit had reasonable assurance that an alien who filed an adjustment of status could pursue that adjustment of status, at least if the adjustment packet was filed before ICE issued a removal order under the authority of the visa waiver program.

III. The Ninth Circuit Reverses Itself

And then came Momeni v. Chertoff[11]. While Freeman based its analysis strictly on  INA § 245(c)(4), Momeni, in unfathomable distinction, did not even mention it. To be entirely clear – the Court of Appeals decided a case about visa waiver adjustment of status without mentioning the statute that explicitly permits it. And as one might imagine, if a court is going to decide whether something is or is not permitted without addressing the statute that permits it, the conclusion will be that that thing is not permitted. This is what the Momeni court decided – that ICE has virtually unfettered discretion to grab a visa waiver entrant with an adjustment of status application pending and deport the alien. The exception to this is if an adjustment of status was concluded within the ninety period of authorized stay.  As the Momeni Court put it, “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.[12]”

Of course, a Court of Appeals should not ignore a binding precedent, in this case Freeman. How does a court work around the nettlesome issue of a case on point contrary to the ruling it wants to make? It distinguishes it! This is what the Momeni court did, writing:

In Freeman, the alien married the United States citizen before entering the Visa Waiver Program and sought an adjustment of status within the 90 days she could stay. But she was thwarted from adjusting her status by the subsequent death of her husband in a car accident, shortly before their first wedding anniversary. We noted that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman’s position,” [444 F.3d at 1036 n.9] a very sympathetic one, and held that in that case the adjustment of status statute superseded the no contest provision. [444 F.3d at 1037].

None of the relevant circumstances of Freeman pertain here. Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status.
We characterized this no contest clause in Handa v. Clark [401 F.3d 1129 (9th Cir. 2005)] as “the linchpin of the [Visa Waiver] program, which assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede removal if he overstays.” [Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005)].  Freeman was an exception because she was eligible to adjust her status at time she arrived, under 8 U.S.C. § 1254 (sic), she applied within her 90 days, and she would have obtained her adjustment of status but for her husband’s death. Momeni, though, doesn’t fall within this narrow exception.

IV. Flawed distinctions

The Momeni court finds an exception to its rule that visa waiver entrants, even those adjusting as immediate relatives. The exception is for those immediate relative visa waiver entrants who can accomplish an adjustment of status within 90 days, the authorized period of stay for a visa waiver entrant[13]. There are several things wrong with this.

A. The Court reads in a necessity to maintain status.

INA § 245(c)(4) states that an alien “admitted” under the visa waiver program can adjust status. Nothing states that the alien must maintain that status. While aliens seeking adjustment of status other than as immediate relatives must maintain their status[14], this rule does not apply to immediate relative adjustment applicants[15]. There is no basis for the court to read a requirement of being in status into INA § 245(c)(4), assuming that the Momeni court even read INA § 245(c)(4), an assumption for which there is no evidence in the decision.

B. The Court requires an impossible period of time to complete adjustment of status.

It is nearly impossible for anyone to adjust status in less than ninety days. No USCIS district processes adjustment of status applications in less than ninety days. This means that no one can meet the requirement of adjusting before the period of admission expires. Further, the period of time it takes to adjust status is completely beyond the control of an alien. The Momeni court did not even carve out an exception for aliens who filed while still in status.

C. The court requires conduct from the alien that would ordinarily bar admission and potentially bar adjustment.

The Momeni court notes favorably that Ms. Freeman entered the United States under the visa waiver program while married to her husband and that she and her husband filed the adjustment of status application before her ninety day period of stay expired. The only reason she did not complete the adjustment, says the court, is that her husband died. This is ludicrous on two counts. First, the adjustment of status would not have been concluded in ninety days even if Mr. Freeman was immortal. As noted, supra, adjustments of status processing simply does not happen – and probably cannot happen because of all the steps involved – in ninety days.  Second, for an alien to enter the United States and be in the position to file an adjustment of status application that can be adjudicated in ninety days would run afoul of the rules related to nonimmigrant admission, rendering the admission at a minimum, questionable, and also, possibly, fraudulent.

The Immigration and Nationality Act at INA § 214(b) and State Department regulations[16] make clear that an alien seeking admission as a nonimmigrant  under the visa waiver program must have an nonimmigrant intent. An alien who comes to a port of entry and tells an officer that she is seeking admission as a visa waiver applicant, but has a United States citizen spouse and will be filing for adjustment of status will not be admitted into the United States. An alien who conceals these facts could be charged with fraud[17]. An alien who conceals these facts and is admitted under the visa waiver program could coneivably be denied adjustment of status for using the visa waiver program in a fraudulent manner. In fact, this seems to be what happened to Ms. Freeman. USCIS subsequently denied her adjustment of status for abusing the visa waiver program[18].  The exact facts that made Ms. Freeman worthy of a special exception in the eyes of the Momeni court and which distinguish her case from Mr. Momeni’s, her being married at the time of admission and filing an adjustment immediately after her admission, are  negative factors in the eyes of the Immigration and Nationality Act[19] which could have led to her not being admitted and found to have committed fraud.

The Momeni court states that the Freeman court had these factors in mind when it decided the case because it indicated that it was carving out an exception for what was likely to be a small percentage of VWP entrants in Mrs. Freeman’s position” [Freeman, 444 F.3d at 1036 n.9]. This is actually a distortion of footnote 9, which states:

We are not persuaded by the government’s argument that allowing Mrs. Freeman to escape the no-contest clause (even if only to renew or review her adjustment of status application prior to being removed) would counter the purpose of the VWP [Visa Waiver Program], which was to avoid the potentially onerous and numerous proceedings that would otherwise occur when DHS attempts to remove those who have overstayed their 90-day visas. Not only will there likely be a small percentage of VWP entrants in Mrs. Freeman’s position, but Congress itself granted the adjustment of status right to these aliens. There is no reason to suspect that Congress failed to appreciate the consequences of its act.

The Freeman court is quite explicit in this footnote that it finds that Ms. Freeman escapes the “no contest” clause by virtue of having filed an adjustment of status application, not for having filed it before her period of admission expired. The court is also clear that the reason for this is this is what Congress intended.  The court does note that the exception is for a small number of visa waiver entrants, but by this the court means that of the millions of foreigners who come to visit the United States under the visa waiver program[20], only a small number fall in love with and marry United States citizens and seek adjustment of status or have adult United States citizen sons or daughters that can petition for them – not that a small number come to the United States already married to United States citizens with the pre-conceived intent to file adjustments of status and then their petitioning United States citizen spouses die in a car crash. It is hard to imagine the Momeni court really believes the Freeman court was using words of such broad impact to make such an excruciatingly narrow holding. Further, why would the Freeman court have published a case which applied to such a minuscule class of people?

V. Conclusion

The Ninth Circuit Court of Appeals has bigger fish to fry than the visa waiver program. Still, it is lamentable when one panel can ignore a key statute in interpreting the law and can misinterpret a prior precedent to reverse the court’s precedent without going en banc. It is also lamentable that no judge took enough time to notice this casuistry when Mr. Momeni filed for en banc reconsideration.  Freeman may come back to the Court of Appeals one day if Ms. Freeman uses the rights granted to her in her own case to seek judicial review. Hopefully, that panel will assert that its holding in 2005 was not as trivially narrow as the Momeni court would have us believe and the court will address this curious intra-circuit split.


1. 521 F.3d 1094 (9th Cir. 2008).
3. The “no contest provision states, “Waiver of Rights. An alien may not be provided a waiver under the program unless the alien has waived any right–
(1) to review or appeal under this Act of an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or
(2) to contest, other than on the basis of an application for asylum, any action for removal of the alien.
4. 444 F.3d 1031 (9th Cir. 2005).
5. 8 C.F.R. 214.1(c)(3)(I) bars visa waiver entrants from extending their stays.
6. INA §248(a)(4) states that a vista waiver entrant cannot change status.
7. INA § 245(c)(4) states that aliens, other than immediate relatives, cannot adjust status.
8. The clause states, “[Adjustment of Status shall not be applicable to] an alien (other than an immediate relative as definde in section 201(b)) who was admitted as a nonimmigrant visitor without a visa under section 212(l) or section 217….”
9. 444 F.3d at 1034.
10.  Id.
11. 521 F.3d 1094 (9th Cir. 2008).
12. Momemi, at 1096-1097.
13. INA § 217(a)(1).
14. INA § 245(c)(8); 8 C.F.R. § 245.1(b)(6);  Matter of M–,  5 I. & N. Dec. 622 (BIA 1954).
15. INA § 245(c)(2).
16. See, inter alia, 9 FAM 40.63 N4.7-1.
17.  Id.
18. Freeman v. United States Dist. Court, 489 F.3d (9th Cir. May 29, 2007) (Writ of mandamus denied).
19. But see, Matter of Cavazos, 17 I. & N. Dec. 215 (BIA 1980), which held that “Where a finding of preconceived intent was the only negative factor cited by the immigration judge in denying the respondent’s application for adjustment of status as the beneficiary of an approved immediate relative visa petition and no additional adverse matters are apparent in the record, and where significant equities are presented by the respondent’s United States citizen wife and child, a grant of adjustment of status is warranted as a matter of discretion.” In the case of Ms. Freeman, she had not children and her husband died, presenting none of the equities present in Matter of Cavazos.
20. According to the Department of Homeland Security, 12,921, 822 aliens entered the United States under the Visa Waiver Program in 2006. See, htttp://


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