Over the past few years I have been writing a lot about the visa waiver program and adjustment of status. The visa waiver program is a program found at INA § 217 where citizens of certain countries can enter the United States for ninety days without a visa, similar to how United States citizens, when visiting many countries do not have to obtain a visa before traveling. A condition of the program is that a visa-waiver entrant cannot change or adjust status. However, the adjustment of status statute, at INA § 245(c)(4), says visa waiver entrants can adjust status, if adjusting through a United States citizen spouse, adult child, or if under age 21, a United States citizen parent. Courts of appeal that have looked at the issue have concluded that unless an adjustment of status application is filed before period of stay ends, there is no right to adjust status and the government does not have to decide an adjustment of status before deporting someone. Courts have been opaque about whether USCIS can adjust status for a visa waiver overstay.
The San Diego USCIS district had taken the position, assumably from language from the lead Ninth Circuit Court of Appeals decision in Momeni v. Chertoff, that adjustment cannot take place. Even within the Ninth Circuit this position did not prevail in all the USCIS districts. Now, the San Diego USCIS district has back-tracked and is handling visa waiver adjustments on a case by case basis. This is a retrogression to my earliest observation, that success in filing a visa waiver adjustment depends completely on the kindness of strangers.
There is a new visa waiver case out of the 3rd Circuit, Vera v. Attorney General. Recalling the SAT’s, if the question were asked about the tone of this case vis a vis the petitioner, Jordana Vera, the answer would have to be – hostile. Jordana came to the United States as a child at age 12 twelve years under the visa waiver program. She was arrested in July 2011 when Immigration and Customs Enforcement officers stumbled upon her when coming for her brother. She asserted that she should not be bound by the terms of the visa waiver program because she was too young to agree to the terms of it when she came. The Vera court’s decision was not surprising in light of its earlier case, Bradley v. Attorney General. The court held that her argument requires that she show prejudice. Because if she did not agree to the terms of the program she would not have been allowed into the country, she is not prejudiced now by being expelled from the country. The court then made this monumental pronouncement: “First, the principles of the common law make it plain that persons should not gain an advantage by their wrongful conduct and that is precisely what Vera is trying to do as she unlawfully has overstayed her 90-day authorization to be in this country and seeks to build on that unlawful conduct to remain longer.” For better or worse, most of the limited generosity in the immigration laws stem from people gaining advantage by their wrongful conduct, for example, Cancellation of Removal for Certain Nonpermanent Residents, registry, adjustment of status for immediate relatives who are out of status, the INA § 237(a)(1)(H) waiver, deferred action, CAT relief (in some cases), prosecutorial discretion, to name just a few generous provisions and policies.
It is also noteworthy that Jordana, according to the case, was eligible for adjustment of status. The case does not state that Jordana is not allowed to adjust status, only that she has no right to contest her removal. Thus, if the USCIS district where she lived decided to let her adjust status, it is not clear from the case if it could have, but it seems from how USCIS operates, it could have. Thus, if USCIS wanted to be kind to her it could have, but decided not to. There was no sisterly love for Jordana.
As for the Vera court’s hostile tone, consider this footnote, “We are surprised that an alien ordered removed can frustrate the removal process simply by refusing to board the aircraft available to take her to the country of removal. We would have thought that measures would be in place to effectuate an order of removal by whatever means are necessary.” Or, “Hey fellas, if you had stuffed the chick on a plane, we probably wouldn’t even have to deal with this case!” And then there is the conclusion, “[t]hough some people might regard the outcome of this case to be harsh the fact remains that if people in other countries object to the conditions of their admission into the United States they are free not to come here.” What else does this apply to? Long lines? Surly treatment? Intrusive searches? Could this be a new slogan for a United States tourism initiative?
As courts have concluded that there is no right to adjustment of status, and some have even said that there is no ability to adjust status after the visa waiver entrant’s period of stay has expired, how is it that USCIS can adjust if it wants to. In a Ninth Circuit case, Abebe v. Mukasey, the court, en banc, decided that a certain relief from removal, only applied to arriving aliens. Regulations allowed some aliens already in the country to receive the waiver. The court wrote, “The INS may certainly choose to treat different classes of aliens the same, even though the statute does not…” The dissent pointed out that if the government agency could do what it wanted despite the dictates of the statute, there was really no point to the law. Perhaps USCIS will apply this theory of the law; even though the courts interpret the statutes to mean that visa waiver overstays cannot adjust status, we can choose to treat them the same as non-visa-waiver overstays if we want.
The next question is more difficult. If USCIS wants to handle these cases on a “case by case basis,” must it not have rational, transparent criteria for doing so? Can it say all French visa waiver overstays can adjust, but no Italians can? Can it say we will allow those who file in San Francisco to adjust but not those in San Diego? Can it say we will allow for adjustments on Mondays and Thursdays, but not Tuesdays and Wednesdays? This is all reminiscent of the old, old Supreme Court case, Yick Wo v. Hopkins where the San Francisco fire marshal had the discretion to grant permits to laundries in wooden buildings. Some white people got waivers but no Chinese people did. The Supreme Court decided that San Francisco could not arbitrarily decide who got a permit and could not decide simply based on race (except for black people, subsequent cases made clear). The Administrative Procedures Act also protects people from arbitrary government action. The future legal issue will be whether a visa waiver overstay whose adjustment of status application is not considered who is similarly situated to a person whose application was considered, can sue because of arbitrary and unequal treatment, as Mr. Yick Wo did 125 years ago? But first, we wait and wait and wait for USCIS to lay out a policy and explain how it is in accord with circuit court decisions. Posted March 11, 2012.