The Courts of Appeal makes some bad decisions, and then it makes decisions like Momeni v. Chertoff 1—so devoid of analysis and 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 (VWP) 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.
Depending on the Kindness of Strangers
In 2005, this author wrote an article, "Visa Waiver Adjustment Applicants Must Depend on the Kindness of Strangers,"2 regarding a client who was admitted to the United States under the visa-waiver program (VWP) and filed an (AOS) application. U.S. Citizenship and Immigration Services (USCIS) would not consider the application because the alien was in U.S. Immigration and Customs Enforcement (ICE) custody under a removal order pursuant to the INA §217(b) "no-contest" provision.3 The Court of Appeals decided that the nonimmigrant could not challenge USCIS's inaction. 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:
It is wise to keep in mind that ... when a visa-waiver entrant files [an] 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 , regulations and policy that require adjudications, or a Constitutional protection of equal protection, but like Blanche DuBois in Streetcar Named Desire, he or she must depend on the kindness of strangers.
The Court of Appeals Extends
Rights to Visa Waiver Applicants
A reversal of fortunes came in 2005 when the Ninth Circuit U.S. Court of Appeals issued Freeman v. Gonzales4, an unambiguous act of kindness to Ms. Freeman and to all visa-waiver entrants who can adjust status to that of permanent residents through immediate relatives (IR). Freeman had two problems that brought her to the Ninth Circuit. She entered under the VWP, and at the time of her admission, she was married to a U.S. citizen (USC). Before the expiration of her 90-day visa-waiver period of admission, she filed an AOS application. Her husband then died. The Ninth Circuit concluded that the death of her husband after he filed a petition did not stop him from being an IR petitioner so AOS could continue. The court then addressed the issue of whether Freeman could adjust as a visa-waiver entrant, looking to the INA §217 statute, which creates a unique status of visitors who do not need to apply for visas. These visitors are disadvantaged in several ways. The VWP limits visa-waiver entrants to a non-extendable5 non-changeable6, and non-adjustable status7. An exception to the bar to AOS exists, however, as part of INA §245(c)(4)8. As the Freeman court put it:
[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 … on the basis of either (1) an immediate relative petition or (2) an application for asylum."); see also 8 CFR §245.1(b)(8).9"
The court also noted, "Once an application is filed, certain procedural safeguards are in place to ensure fair adjudication of the application (see 8 CFR §245).
The Freeman court concentrated on Congress's exception to the strictness of the VWP 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 AOS notwithstanding the prohibitions of the VWP but deny them the ability to pursue that right with the protections of administrative review in immigration court and the Board of Immigration Appeals (BIA), as well as judicial review. After Freeman, nonimmigrants did not have to rely on ICE's kindness, but had the full panoply of rights afforded to them, as long as INA §245(c)(4) applied. Practitioners in the Ninth Circuit had reasonable assurance that an alien who filed an AOS could pursue it; at least if the adjustment packet was filed before ICE issued a removal order under the authority of the VWP.
The Ninth Circuit Reversal
And then came Momeni v. Chertoff. 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 decided a case about visa waiver AOS without mentioning the statute that explicitly permits it. And as one might imagine, if a court is going to decide whether something is permitted without addressing the statute that permits it, the conclusion will be that such 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 AOS application pending and deport the applicant. The exception to this is if an AOS was concluded within the 90-period of authorized stay. As Momeni decided, "There are legal means by which aliens may marry United States citizens, obtain visas, and obtain , 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 the case, as Momeni did:
In Freeman, the alien married the United States citizen before entering the Visa Waiver Program and sought an 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 statute superseded the no contest provision. [444 F.3d at 1037].
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 USC § 1254 (sic), she applied within her 90 days, and she would have obtained her but for her husband's death. Momeni, though, doesn't fall within this narrow exception.
The Momeni court finds an exception to its rule pertaining to visa-waiver entrants—even those adjusting as IRs. The exception is for those IR visa-waiver entrants who can accomplish an AOS within 90 days, the authorized period of stay for a visa waiver entrant.13 There are several things flaws to this exception
INA §245(c)(4) states that an alien "admitted" under the VWP can adjust status. Nothing states that the alien must maintain that status. While aliens seeking AOS other than as IRs must maintain in their status14, this rule does not apply to IR adjustment applicants15. There is no basis for the court to read a requirement of being in status into INA §245(c)(4), presuming that the Momeni court even read INA §245(c)(4), a presumption for which there is no evidence in the decision.
Unrealistic Time Period for Completion
It is nearly impossible for anyone to adjust status in less than 90 days. No USCIS district processes AOS applications in less than 90 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 applicant's control. Momeni did not even carve out an exception for those who filed while still in status.
Momeni notes favorably that Freeman entered the United States under the VWP while married to her husband and that she and her husband filed the AOS application before her 90-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 AOS would not have been concluded in 90 days even if Mr. Freeman was immortal. As noted, AOS processing simply does not happen—and probably cannot happen because of all the steps involved—in 90 days. Second, for a nonimmigrant to enter the United States and be in the position to file an AOS application that can be adjudicated in 90 days would run afoul of the rules related to nonimmigrant admission, rendering the admission at a minimum, questionable, and also, possibly, fraudulent.
State Department regulations16 and INA §214(b) make clear that a nonimmigrant seeking admission under the VWP must have nonimmigrant intent. A foreign national who comes to a port of entry and tells an officer that he or she is seeking admission as a visa waiver applicant, but has a USC spouse and will be filing for AOS, will not be admitted into the United States and would most probably be charged with fraud if these facts are concealed.17 Also, if the nonimmigrant does not disclose these facts and is admitted under the VWP, he or she could conceivably be denied AOS for using the VWP in a fraudulent manner. In fact, this is what happened to Freeman. USCIS subsequently denied her AOS for abusing the VWP.18 The exact facts that made Freeman worthy of a special exception in the eyes of the Momeni court and distinguishes her case from Momeni's—being married at the time of admission and filing an adjustment immediately after her admission—are negative factors under the Immigration and Nationality Act,19 and could have barred her admission altogether.
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 (see Freeman 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 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 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 filing an AOS application, not for having filed it before her period of admission expired. The court also is clear that the reason for 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 VWP20, only a small number fall in love with and marry USCs and seek AOS or have adult USC sons or daughters that can petition for them—not that a small number come to the United States already married to USCs with the pre-conceived intent to file an AOS only to have the USC spouse die in a car crash.
Curing the Oversight
The Ninth Circuit has bigger fish to fry than the VWP. 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 also is lamentable that no judge took enough time to notice this casuistry when Momeni filed for en banc reconsideration. Freeman may come back to the court of appeals one day if 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.
Jonathan D. Montag is a member of the Immigration Law Today Editorial Advisory Board and practices immigration law in San Diego.
Articles in ILT do not necessarily reflect the views of the American Immigration Lawyers Association.
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 defined 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.
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.
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 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 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, http://www.dhs.gov/xlibrary/assets/statistics/publications/NI_FR_2006_508_final.pdf.