Written By: Shoba Sivaprasad Wadhia

When I was 12 years old, my favorite school project was to put together a “Future Book” detailing my adult life through cutout pictures from magazines and other places and captions written in my jumbo-size middle school cursive. My Future Book featured a movie-star husband from “Bollywood”; triplet girls, each with blond hair and medium sized white dogs; and a cover page decorated with a grand piano to showcase my future career as concert pianist. I knew little of the terms “rule of law”, “due process” or “waiver” three phrases that would feature prominently in my real adult life. This was the sixth grade story I remembered as I read the Third Circuit’s decision in Vera v. Attorney General of the United States

Jordana Vera is a citizen of Argentina who entered the U.S. at the age of 12 under the “Visa Waiver Program” (VWP). The VWP is a program that is designed to allow citizens of select countries to enter the United States as a nonimmigrant for a period of 90 days without having to first obtain a visa. The immigration statute provides that VWP holders should waive any right to review or appeal an immigration officer’s about admissibility at the port of entry or to contest, other than on the basis of an application for asylum, any action for removal. INA 217. Vera remained in the United States longer than the authorized period of stay under the VWP and years later, was arrested, detained and ordered removed by ICE without an administrative or judicial hearing. The government was unable to produce the form (I-94W Nonimmigrant Visa Waiver Arrival/Deportation) containing Vera’s signed waiver of rights. Vera filed a petition for review, arguing that her removal order was invalid because she was a minor when she entered the U.S. and because the government failed to produce a signed I-94W.

The Vera court held that the government is entitled to a “rebuttable presumption” (which had not been rebutted) that Vera executed a waiver, even though Vera was 12 when she entered the United States and even though the government failed to produce a form saying she signed a waiver. The Vera court found that even if Vera did not sign the waiver or if she signed a waiver that was invalid because of age, there was still no claim because she suffered no prejudice, concluding, “she would be in precisely the position she is in now- facing summary removal.” The opinion did not include facts about whether Vera was entitled to formal relief from removal or an exercise of prosecutorial discretion based on various positive equities. The Vera court cited liberally to another Third Circuit case called Bradley v. Attorney General. In that case, the Petitioner Bradley, challenged that his removal order was invalid because he was intoxicated when he entered into the United States under the VWP and therefore the waiver of his rights was not “knowing and voluntary.” Leaving aside whether his waiver was “knowing and voluntary,” the Bradley court rejected his challenge, holding that even if knew about the contents of the waiver and refused to sign, he would be in the same position as he is now-subject to summary removal without a hearing, and therefore suffered no prejudice. AILA Amicus Committee Member Stephen Manning has blogged previously about Bradley and the stance among several federal circuits on the legal challenges around the INA’s requirement that VWP entrants waive their rights to a formal removal hearing or to even to contest their removal.

The Vera court makes some additional comments that are somewhat harsh and potentially damaging to future claims involving noncitizens who enter the United States as minors under the VWP. For example, the court offers in a footnote “Although Vera was a minor when she entered the United States she was not such tender years that she could not possibly have executed the waiver.” Really? I re-read this passage many times, stunned by the expectation behind these words in contrast to the limits of my own sixth grade worries. Though the court did not have to determine if Vera’s waiver was “knowing and voluntary” because of her age, it included strong language against any theory that minors cannot sign a waiver knowingly: “…[T]he consequence of a decision that a minor cannot execute a valid waiver or the summary removal provisions of the VWP cannot be enforced against a minor could force the government to adopt a policy not to allow minors to enter this country pursuant to the VWP. After all, it seems obvious that the borders of this country should not be opened to minor aliens literally to walk in on the basis that they are temporary visitors but who then can refuse to leave and demand procedures to determine if they can be removed.” I hope this portion of the Vera decision is treated as nothing more than dicta and eventually retracted.

If you have a case that involves litigating a visa waiver issue at the circuit courts, please contact AILA Amicus at amicus@aila.org.