For Visa Waiver Adjustees, it’s now up to Alejandro Mayorkas

Sunday, January 16th, 2011
By: Jonathan MontagJ.D.

More and more Visa Waiver adjustment applicants are being denied adjustment and being deported. I mild panic is setting in. Perhaps it is fitting to put it in perspective and in terms the average person can understand.

You’re a young American and you get your big opportunity to spend a summer traveling around Europe. You buy your Eurail pass and pack your backpack and you plan your trip. London, Paris, Nice, Florence …. During your adventure you meet a nice person. You hit it off. You decide to extend your trip. You spend time traveling with your new friend. You fall in love. You visit your friend’s family and then stay with this family. The family is well-established, large, and accepting. Your friend is successful. A professional. A pillar of his community. You decide to stay and work a little to see if there is a future – and to learn the language better. You like it abroad. You’re happy. You get married. Your parents fly out for the wedding. Your friend’s family all comes too.

Then it dawns on you that you better straighten out your immigration situation. It is not all love and family and acculturation. You get the forms and fill them out and send them in. You get a letter to come to a local office to discuss the forms. You and your spouse go to a meeting. You are arrested, handcuffed, thrown in jail, and deported. You learn you cannot come back for ten years. If you want to be with your spouse, it’ll have to be in America. Your spouse has nothing in America, except you. Your spouse’s English is lousy. Your spouse’s professional training and experience is worthless here. Your world is turned upside down.

You think you are experiencing a great human rights injustice, but no one cares. You are told the law was clear and you broke it and these are the consequences. You think, boy this Europe is insular and xenophobic. You have seen the police there hassling foreign looking people. This would never happen in America.

Boy, would you be wrong. As has been reported by me in this blog and elsewhere, the tide seems to have turned on visa waiver adjustments from being widely available to being available, at least in the Ninth and Tenth Circuits, in very limited situations. By way of brief explanation, the Visa Waiver Program, found at INA § 217, allows citizens of certain countries to come to the United States for up to 90 days without first obtaining a visa. In return for this privilege, visa waiver entrants cannot extend their stay, change their status to other temporary statuses (INA § 248(a)(4)), or adjust status to that of permanent residence (INA § 245(c)(4)). However, there is an exception for aliens seeking adjustment of status as an immediate relative – that is as the spouse of a United States citizen, the child (under 21 years old) of a United States citizen, or the parent of a United States citizen. Also, according to INA § 217(b)(2), a visa waiver entrant waives any right “to contest, other on the basis of an application for asylum, any action for removal of the alien.” There is an exception in that the Visa Waiver entrant can apply for asylum.

The Ninth Circuit in the Momeni v. Chertoff case discussed the court’s jurisdiction to hear a challenge to removal. Because the decision is so short, there is still a fair bit of confusion as to what it means. It is instructive to see how the Moment court laid out the facts:

Momeni is a German citizen. He came to the United States as a tourist on November 30, 2005. Under a pilot program that Congress created, citizens of certain countries can come to the United States as tourists for 90 days or less without visas. Various conditions have to be satisfied by the country (e.g., a reciprocal program) and the tourist (e.g., a round-trip ticket). To get the government waiver of the usual visa requirement, the tourist has to sign a waiver of his or her own right to contest removal other than on the basis of asylum. 
Momeni did not go back to Germany by March 1, which was 90 days after he entered the United States. On April 11, 2006, he married a United States citizen. In July, Momeni was taken into custody for violating the conditions of his admission under the Visa Waiver Program, and given notice that he was to be removed. In September, Momeni and his wife applied to adjust Momeni’s status. His removal has been stayed pending disposition of this case. Because there are no administrative proceedings available for entrants under the Visa Waiver Program except on the basis of asylum, he sought none, and instead petitioned for a writ of habeas corpus in district court. The district court dismissed the petition on the ground that it lacked jurisdiction, and he appealed.  The Momeni court was considering whether it had jurisdiction to consider whether Mr. Momeni could sue to have his adjustment application decided before he was deported. The Momeni court decided he could not sue – the courts did not have jurisdiction to consider challenges to a deportation order. But this is not the same as saying that the alien had no ability to adjust status. Had it limited itself to this jurisdictional formulation, then visa waiver entrants could adjust status, just not fight about being denied adjustment. It would be up to USCIS to decide and that decision would be final. However, the Momeni court said more, “We agree with the Tenth Circuit in Schmitt v. Maurer that to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute.” The Momeni court is thus expanding beyond a finding of a lack of jurisdiction to a finding that it lacks jurisdiction because an alien who files after the ninety days cannot adjust status.

The Ninth Circuit contrasted the situation with another of its cases, Freeman v. Gonzales, where Ms. 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.”

The Momeni court stressed that Mr. Momeni married after the 90 days expired while Freeman married before the 90 days expired. Is that legally significant? Mr. Momeni filed for adjustment of status after he received a removal order while Ms. Freeman filed for adjustment of status before she received the removal order? Is that legally significant? There is a story circulating that the San Diego USCIS approved an adjustment because the marriage occurred within the 90 days even though the adjustment was filed after the 90 days. If this is even true, was this an accurate reading of Momeni or a fixation on extraneous facts? I think the latter.

The important question is whether the Momeni or Schmitt courts are saying that:

1. a person cannot adjust status if he or she overstays the visa waiver program and then apply for adjustment of status, or

2. a person cannot challenge the issuance of a removal order in an immigration court or a federal court by seeking adjustment of status unless an adjustment of status application was filed before the 90 days, or

3. A person cannot fight a removal order if he or she is ordered removed under the Visa Waiver Program if he filed his adjustment application after the 90 days, but he can adjust status as long as he is not removed while his adjustment of status application is pending.

In Momeni, Mr. Momeni filed his adjustment of status application after he received a removal order. In Schmitt, Mr. Schmidt never filed an adjustment of status application at all – he had a self-petition as a battered spouse pending (Form I-360)  but had not yet filed for adjustment of status. He filed the self-petition after he received a removal order. As long as the Momeni and Schmitt decisions deal with the court’s jurisdiction, it is possible to say that the first potential holding above, that an alien cannot adjust if he or she overstays and then files for adjustment is dicta – observations not necessary for the decision and thus not binding. The decision is that the immigration court and the federal courts cannot consider the adjustment denial and review the removal order and not that USCIS had no power to decide the application if it wanted to.

What does the government say? So far, at the USCIS headquarters level, nada, gar nichts, rien du tout, bupkes.  However, the solicitor general has spoken on the issue in a brief opposing a writ of certiorari (an appeal to the Supreme Court), by an alien ordered removed under the visa waiver program despite having filed an adjustment of status application in a case out of the Third Circuit, Bradley v. Holder. In Bradley, the Third Circuit limited its holding to whether an alien had the right to contest his removal if he filed his adjustment of status application after the expiration of the 90 days. It did not rule on whether a person had the right to pursue an adjustment of status if he filed before the expiration of the 90 days, like in Momeni and Schmitt. It also did not conclude that a person could not adjust with USCIS if he or she filed outside of the 90 day period of stay, which Momeni and Schmitt seem to have, at least in dicta.

In the Solicitor General’s brief, he wrote, “… the court of appeals correctly decided that an alien admitted into the United States under the VWP may not contest his removal based on an adjustment application filed after the 90-day period of lawful admission under the VWP.” The solicitor general specifically addresses seeking adjustment in immigration court and in the federal court. He is quite clear, writing, “Because a VWP alien who is an immediate relative may seek adjustment of status outside removal proceedings – in a manner specified ‘under DHS regulations,’ 8 U.S.C. 1255(a), there is no conflict between the two statutes.” He means the conflict between INA § 217(b)(2) that allows for no contest of an order of removal and INA § 245(c)(4), that allows for visa waiver entrants to adjust through an immediate relative are not in conflict because the “no contest” clause refers to fighting the removal order in immigration court or in the federal courts, not by seeking adjustment of status with USCIS. If USCIS is willing to entertain the adjustment of status application and prevail over its sister agency, ICE, not to remove the alien while it is pending, the alien can adjust status. The Solicitor General writes, “Indeed, petitioner himself [Mr. Bradley] has been able to file applications for adjustment. USCIS has considered those applications notwithstanding petitioner’s lengthy violation of the terms of his admission to the United States.” The Supreme Court denied certiorari in Bradley.

Distilling all this, the law seems relatively clear that a Visa Waiver entrant who files for adjustment of status before his 90 day period of admission expires can pursue his adjustment of status with USCIS and then with the immigration court, the Board of Immigration Appeals, and even the courts of appeal if the courts of appeal have jurisdiction over the issue. (Remember, the courts of appeal cannot review discretionary determinations. INA § 242(b)).

Outside of the Ninth and Tenth Circuits, it seems that an alien can apply for adjustment of status at any time before he is ordered removed for violating his visa waiver status, and USCIS can adjudicate and approve the adjustment if it wants to. There is no recourse to the immigration court, the BIA, or the federal courts to “contest” the denial of an adjustment of status application and the removal order. If USCIS denies the application or refuses to entertain it, the alien is powerless to stop his removal if he filed the application after his or her 90 day period of stay.

In the Ninth and Tenth Circuit, which were deciding its jurisdiction to consider the appeals, concluding that Visa Waiver entrants cannot adjust status if they apply for adjustment after the expiration of their periods of stay, is arguably dicta. All that these courts needed to hold was that if the adjustment of status was filed after the expiration of the period of stay, these courts lack jurisdiction to review the removal order or the underlying adjustment application, not that the aliens could not file an adjustment of status application.

The Solicitor General, who assumably conferred with USCIS before he filed his brief, expressed the position that a Visa Waiver entrant can apply for adjustment of status at any time before he is removed and USCIS can adjust his status at its discretion, even if ICE has ordered the alien’s removal. See, Matter of Yauri, which states that USCIS can adjust an alien’s status even if there is a pending, executed removal order against the alien.

There is currently great confusion and a fair amount of panic. Long-term residents of the United States with U.S. citizen spouses and children are being arrested and deported. Treatment is different in the different circuits. In the Ninth and Tenth Circuits adjustment applications are denied with an assertion that USCIS lacks jurisdiction because of filing after the 90 day period of authorized stay. In other circuits, adjustment applications are being adjudicated and granted. All over the country, cases that would normally be granted 99 percent of the time for non-Visa Waiver entrants are being denied because of issues that would never bar a normal immediate-relative adjustment applicant from adjusting – like for overstaying a visa, working without permission, and pre-conceived intent.

USCIS needs to stop this madness. The power lies with its Director, Alejandro Mayorkas. He is fond of policy memos.  He needs to issue one right away to inform USCIS districts of the agency’s policy regarding Visa Waiver entrants. He should inform the districts unambiguously:

1. USCIS will accept and adjudicate all properly filed visa waiver entrants’s adjustment of status applications based on immediate relative petitions;

2. All USCIS policies and precedents relating to adjustment of status that apply to other adjustment of status applicants shall equally apply to visa waiver entrants’ adjustment applications. The adjudication should not be used as a pretext to deny the adjustment to conform with INA § 217, but instead all applicants should be treated as valid applicants according to INA § 245(c)(4). There should be no prejudice against Visa Waiver entrants.

3. To insure uniformity, all Visa Waiver entrant adjustment applicants whose applications are denied can pursue administrative review of the denial with the Administrative Appeals Office.

Further, Mr. Mayorkas should coordinate with ICE’s chief, John Morton, who too has a predilection towards policy memos, to get his agreement to instruct ICE officers not to execute removal orders against Visa Waiver entrants who have pending adjustment applications and to give married Visa Waiver entrants (and those who can show they are in a bona fide marriage-like relationship) an opportunity to file an adjustment application with USCIS before a removal order is executed.

Should there be concern that the Ninth and Tenth Circuits’ holdings require the denial of adjustment applications filed after the 90 days, Mr. Mayorkas should heed the pronouncement of the Ninth Circuit in Abebe v. Mukasey, “INS (sic) may certainly choose to treat different classes of aliens the same, even if the statute does not….” USCIS can treat all adjustment applicants the same regardless of when they filed their applications.

America is involved in two wars. We are also involved in a war on drugs. Our border with Mexico is too porous for many and Mexico is in a mighty crisis which threatens to spill across the border. We are involved in a deep economic crisis. Our economic dominance is threatened by China and other emerging powers. We do not need a war on another front – against married couples with a spouse who entered the country legally from countries that are by and large our closest allies who just want to stay together, nurture each other, and raise their families. America has bigger fish to fry. We do not need to lose more hearts and minds. The law does not require removing these people. Good sense and humanity require that we allow them to stay. Posted January 16, 2011.



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