One of the funniest parts of my job (in a sad way) is explaining to criminal defense attorneys, prosecutors, and state court judges that the INA’s definition of the word “conviction” differs from their ordinary sense of the word.  In 1996, Congress changed the definition of the word “conviction” to read as follows:

The term “conviction” means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where— (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

INA § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).  Ignorance of the definition can result in disaster.  A criminal defendant can be subjected to mandatory detention and removal, even when a prosecutor and court do not desire a defendant’s exile from the United States.  North Carolina’s best example of this is its drug diversion program.  N.C. Gen. Stat. § 90-96.   A criminal defendant with a first-time drug possession charge is often offered this program to avoid a conviction.  Entry into “90-96″ requires a guilty plea or finding of guilt and placement on probation by a state court judge.  Once the conditions of probation are successfully completed, the drug possession charge is dismissed, and the criminal defendant may later become eligible to expunge the charge.  Id.  Even though this statute was designed and intended to promote rehabilitation and a second chance at life without carrying the “felon” label, North Carolina’s “90-96″ program seems to satisfy the INA’s definition of conviction.  See Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).

One would think the plain language of the statute is expansive enough, but of course some judges have stretched the boundaries of the word “conviction” further.  See, e.g., Singh v. U.S. Atty. Gen., 561 F.3d 1275, 1279 (11^th Cir. 2009)(a state’s conviction of a minor in adult court is considered a conviction for immigration purposes); Matter of Cabrera, 24 I&N Dec. 459 (BIA 2008)(holding that courts costs alone constitute a “penalty”).

Therefore, it was refreshing to see a panel of the 4th Circuit recently embrace a more natural reading of the word “conviction.”  In Crespo v. Holder, __ F.3d ___, No. 09-2214 (4th Cir. 2011), the Court held that some criminal court adjudications conducted pursuant to Virginia’s first offender statute do not constitute convictions under the INA.

“Crespo’s 1997 adjudication was pursuant to Virginia Code § 18.2-251, which applies to a first offender who ‘pleads guilty to or enters a plea of not guilty to possession of … marijuana.’ Va.Code Ann. § 18.2-251. After such a plea, ‘if the facts found by the court would justify a finding of guilt,’ the court may, ‘without entering a judgment of guilt,’ instead ‘defer further proceedings and place’ the offender on probation. Id. In his case, Crespo pled not guilty to the offense and the judge found facts justifying a finding of guilt and deferred adjudication over the Commonwealth’s objection. Crespo was sentenced to one year of probation, which he served without incident.”  Id. at 5-6 (slip opinion).

The question thus became whether in deferred adjudication proceedings, a plea of not guilty combined with a judicial finding of facts “justifying a finding of guilt” satisfies the first prong of the INA’s definition of conviction.  The government argued such a finding “made by the judge under § 18.2-251 is the functional equivalent of a judge finding the alien ‘guilty’.”  Id. at 6-7.  The panel disagreed.  “[I]f the judge finding the alien ‘guilty’ was intended to encompass Crespo’s situation then the phrase ‘or has admitted sufficient facts to warrant a finding of guilt’ would be rendered superfluous since an alien’s plea of guilty would likewise encompass such an admission.”  Id. at 7.  The panel found the most natural reading requires that “the defendant’s guilt has been established by a trial, plea, or admission.”  Id.  An informal factual inquiry is not a trial.  Crespo made no guilty plea or admission.  Therefore, the first prong of the INA’s definition of conviction was not satisfied.

The Crespo decision should encourage us all to re-examine our own State’s first offender statutes.  The above-referenced “90-96″ program, for example, is limited to a criminal defendant who “pleads guilty to or is found guilty.”  N.C. Gen. Stat. § 90-96(a).  What does it mean in North Carolina to be “found guilty”?  Is it analogous to Virginia’s judicial finding of facts sufficient to justify a finding of guilt, or is it analogous to a trial?  Thanks to Crespo, I look forward to finding out.

– blogging by Stephen Manning, AILA Amicus Chair; Laura Lunn, 2010 Immigration Litigation Summer Fellow

The Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have published decisions on the Visa Waiver Program and eligibility for adjustment of status.  We review those cases here, describe several open questions, and invite readers to contact the AILA Amicus committee with pending cases raising these issues (or other issues we’ve missed).  If you are in a circuit that has not spoken on the issue and are briefing or filing a petition for review, AILA Amicus may be interested in participating in your case.

The state of the circuit law, while uniform, is dispiriting.  The leadings cases are: Bradley v. Attorney General, — F.3d –, 2010 WL 1610597 (CA3 April 22, 2010);  McCarthy v. Mukasey, 555 F.3d 459 (CA5 2009); Nose v. Attorney General of the U.S., 993 F2d 75 (CA5 1993); Lacey v. Gonzales, 499 F.3d 514 (6^th Cir. 2007); Bayo v. Napolitano, 593 F.3d 495 (CA7 2010) (en banc); Lang v. Napolitano, 596 F.3d 426 (CA8 2010);  Zine v. Mukasey, 517 F.3d 535 (CA8 2008); Freeman v. Gonzales, 444 F.3d 1031 (CA9 2006); Momeni v. Chertoff, 521 F.3d 1094 (CA9 2008); Ferry v. Gonzales, 457 F.3d at 1117 (CA10 2006); and  Schmitt v. Maurer, 451 F.3d 1092 (CA10 2006).

The legal question is seemingly straightforward: can a VWP entrant who is admitted to the United States under the authority of § 217 seek adjustment of status under § 245(a) as an immediate relative?

At the outset, we wish to make clear our views that notwithstanding some rumblings from some USCIS field offices (and contrary to HQ policy), USCIS retains jurisdiction to adjudicate VWP entrant adjustment applications – even those filed passed the 90-day period of authorized stay.  In fact, USCIS retains jurisdiction to adjudicate the VWP entrant adjustment application even after a removal order is entered.  The questions presented in the circuit court cases involve an ostensible conflict between §§ 217 and 245 that both preclude and provide for adjustment as a defense to removal.  The ostensible statutory conflict does not implicate USCIS authority.  By regulation, jurisdiction over an adjustment application rests with USCIS unless EOIR has jurisdiction. 8 C.F.R. § 245.2(a)(1).  EOIR only has jurisdiction when removal proceedings are extant. 8 C.F.R. § 1245.2(a)(1).  Asylum-only proceedings are not considered removal proceedings, Zine, 517 F.3d at 543, and VWP entrants are not entitled (normally) to removal proceedings.  Accordingly, asylum-only proceedings or the unconventional removal process for VWP entrants would not withdraw USCIS jurisdiction.

USCIS field offices continue to adjudicate (as they should) VWP entrant adjustment applications filed past the 90-day period.  We are aware of the language in both Momeni and Bayo that, out of context, suggests otherwise. Momeni, 521 F.3d at 1096-97; Bayo, 593 F.3d at 507.  But we think that Judges Kleinfeld and Wood were more interested in literary flair rather than a legal statement.  AILA Amicus encourages readers to contact us or your AILA Chapter Chair if a local policy is different or changes. See also AILA Spring 2007 ICE Liaison Minutes (March 20, 2007) (providing for case by case determination if a VWP applicant will be permitted to proceed through adjudication); Shabaj v. Holder, 602 F.3d 103 (CA2 2010) (applicant permitted to seek affirmative adjustment after § 217 removal).

The legal fight involves § 217’s requirement that all VWP entrants waive their rights to a conventional removal hearing under § 240 and not contest removal (unless seeking asylum).  Litigants have mounted three types of challenges.

Challenges to § 217(b)’s Waiver of Rights Requirement

The Seventh Circuit decision in Bayo describes the challenge. A citizen of Guinea, Mr. Bayo entered the U.S. on the VWP fraudulently with a stolen Belgian passport. When Mr. Bayo married a U.S. citizen more than four years later and applied for adjustment of status, DHS was able to link him to the stolen passport and ordered him removed without a hearing because he entered under the VWP and waived his right to such procedural due process. Mr. Bayo claims he did not understand English and he should not be subject to the waiver of his rights as a result.   The Seventh Circuit held that since Mr. Bayo was waiving the right to a hearing to contest his removal he was waiving a constitutional right guaranteed to immigrants.  Such a waiver must be knowing and voluntary. This must be so because there are noncitizens such as trafficking victims with strong and sympathetic claims to stay in the United States who must have some process to assure that VWP waivers are knowing and voluntary.  The Seventh Circuit expressed no opinion as to what that process should look like, and it speculated that the problem may be largely solved, given the advent of ESTA (see below).

In Bradley, the petitioner likewise challenged the knowing and voluntary aspect of his waiver claiming that he was intoxicated when he entered into it.

In both Bayo and Bradley, the circuit courts ruled against the litigants on the basis that neither could prove prejudice for the violation of the constitutional right.  As such the procedure necessary to ascertain if a waiver is knowing or voluntary described as necessary in Bayo has not yet been developed.

Challenges to § 217(b)(2)’s No Contest Provision

Litigants have challenged the scope of the no contest clause as applied to immediate relative adjustments citing to § 245(c)(4)’s language barring adjustment applications for individuals “other than an immediate relative”.  Scope challenges fall into three categories.

The first category involves a blanket challenge to the no contest provision as inapplicable to immediate relative adjustment of status applications no matter when filed.  Under this theory, the no contest provision’s scope is limited by § 245(c)(4)’s language and does not preclude a defensive adjustment application.  For example, in Zine, the petitioner sought to have his immediate relative adjustment application considered in removal proceedings.  He had sought asylum affirmatively, his asylum application was denied, and asylum-only removal proceedings were commenced.  While in asylum-only proceedings, he married and sought to reopen his removal proceedings to seek adjustment before the Immigration Court.  The IJ and Board denied his motion.  He was in asylum-only proceedings and the IJ and Board refused to consider his adjustment application.

The second category rests on the claim that an adjustment of status application filed after the 90-day VW period expired but prior to any § 217(b) action is taken to remove the VWP entrant entitles the applicant to an adjudication of the application, and if the application is denied, a hearing before an IJ to renew the application.  Only the cases of Momeni and Schmitt involved applicants who had already been ordered removed under § 217 at the time they applied for adjustment of status.  Additionally, most courts have specifically ruled that precluding an application for adjustment of status that is filed after the 90-day VW period avoids a conflict between § 217(b)’s no contest provision and § 245(c)(4)’s immediate relative exception to the bar on adjustment of status applications following VWP entry.

A third category, also based on the “no conflict argument,” is that § 217(b)’s no contest provision is limited in scope and does not apply to VWP entrants who file for adjustment prior to the expiration of the 90-day VW period.  Under this theory, such applicants are entitled to renew or defend an adjustment application in conventional removal proceedings.  Several of the cases discuss the possibility, e.g., Lacey, 499 F.3d at 519 n6, but only the Ninth Circuit and Tenth Circuits have held so directly.  Freeman, 444 F.3d at 1033-34;  Momeni, 521 F.3d at 1097; Schmitt, 451 F.3d at 1097.

Notably, no court has ever explicitly discussed the effect of § 245(c)(2)’s immediate relative exception to the bar on being in unlawful immigration status on the date of filing the adjustment of status application.  This challenge would involve arguing that § 245(c)(2) and (c)(4) combine to create an immediate relative exception to § 217(b)’s no contest provision where the adjustment of status application is filed after an overstay but prior to a § 217 removal order being entered, because (c)(2) does not create a conflict but rather a specific exception to § 217(b).  The absence of an explicit discussion might not mean much for litigants in the circuits with published decisions, but for others, it remains an open question.

Challenges to Adequacy of the Record

There are different ways of challenging the record, though none of the litigants to date have been successful.  In Bradley, the petitioner argued that the record did not contain contain his signed waiver of rights and that this is an element of the removal ground that must be proven by clear, convincing evidence.  In the Bayo litigation, the authority of the officer to order Mr. Bayo deported was at issue but had not been exhausted by the petitioner and not decided by the Seventh Circuit. The record contained at least three different removal orders in different formats entered at different times by different individuals.  In practice, officers such as a “Deportation Officer” or “Supervisory Detention and Deportation Officer” may enter a removal order under § 217.  The regulations limit the power to order a § 217 removal to only a district director. 8 C.F.R. § 217.4(b).  It was unclear in the record if any of these officers had the authority to issue the removal order. See 8 C.F.R. § 1.1(o) (defining district director).  The record assembled by the agency in unconventional removal proceedings such as § 217 (or reinstatement under § 241(a)(5)) may also be subject to challenge as incomplete or inadequate. See Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555 (CA9 1989) (“The whole administrative record, however, is not necessarily those documents that the agency has compiled and submitted as ‘the’ administrative record.”).

The cases seem to be chasing after a moving legal regime as CBP has just announced the elimination of the form I-94W.  Every traveler from a VWP country seeking admission to the United States must now seek pre-travel authorization through ESTA – the Electronic System for Travel Authorization. See AILA Doc. No. 09031863.  The implementation of ESTA raises a whole set of legal questions that we will set aside for another post – including some very interesting constitutional questions and questions involving victims of human trafficking.

We here at Immigration Slip Opinion have been keeping on eye on the BIA. We’ve posted about some recent significant BIA decisions. In this post, we concentrate on issues presently before the BIA that could be resolved by precedent decisions. It’s the Ghost of Immigration Past and the Ghost of Immigration Future.

The BIA has been very busy of late.In addition to an increase in precedent decisions (7 already in 2010; 34 in 2009), it is hearing oral arguments in more cases now than in the past. Recently, it also requested supplemental briefing on specific issues in a number of cases, providing insight into some of its concerns.In one case, it even sought participation of amicus curiae – a request that AILA fulfilled.Here is a summary of what’s brewing at the BIA:

“Aging out” issues: K-2 and CSPA

There are at least seven cases currently before the BIA that raise the question of whether Congress intended that a K-2 visa holder, admitted to the United States as the child of a fiancé(e) of a U.S. citizen, would become ineligible for adjustment of status upon turning 21.In briefs submitted as amici curiae, the American Immigration Council (Immigration Council) and AILA argue that such a result would produce absurd results and could not have been Congress’s intent.After all, the statute permits – and DHS practice allows – a child of a fiancée to enter the country on a K-2 visa up until his or her 21st birthday.In numerous cases, children enter with only a few days to spare before turning 21.Interpreting the statute as allowing these children to enter until age 21, but then also requiring that an adjustment be completed before they turn 21, is simply unreasonable.The only reasonable interpretation of the statute is that a K-2 child must be under 21 at admission but not at the time of adjustment.A recent favorable 10th Circuit decision doesn’t go quite this far, but should help convince the BIA that DHS is wrong.We have asked the BIA to schedule oral argument on this issue and to decide these cases together.

On a related “aging-out” issue, the BIA asked the parties in a CSPA case to submit supplemental briefs on the meaning of the requirement that a child have “sought to acquire” LPR status within one year of visa availability.Both DHS and DOS interpret this requirement narrowly as being limited to filing an application for an immigrant visa or adjustment of status.As explained in an amicus brief that the Immigration Council filed with the BIA, this interpretation conflicts with at least two unpublished BIA decisions, both of which concluded – quite sensibly – that because Congress did not use the word “filed” it could not have meant to limit this phrase to the act of “filing.”

Asylum-related concerns

In In re C-T-L, the BIA invited amicus curiae briefing on the question of whether the “one central reason” standard adopted by the REAL ID Act, and indisputably applicable in asylum cases, also applies to withholding of removal cases.Engaging in a comprehensive statutory interpretation analysis, AILA’s amicus brief demonstrates that this standard does apply to withholding cases.At the same time, AILA urges the BIA to reconsider an earlier precedential asylum case that unlawfully restricts the meaning of the “one central reason” standard.Unfortunately, AILA is not alone as amicus.The anti-immigrant Federation for American Immigration Reform (FAIR) submitted an amicus brief which argues for the opposite result, although without the same thorough analysis found in AILA’s brief.

Last month, the BIA also heard oral argument in another asylum case in which the Northwest Immigrant Rights Project (NWIRP), the Immigration Council, and AILA all participated as amici.There, the BIA was concerned with whether, under National Cable & Telecomm. Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005) (Brand X), it could refuse to follow Ninth Circuit precedent that sets forth the “disfavored group” analysis for asylum cases.At oral argument, counsel for NWIRP (Matt Adams), representing amici, explained how the disfavored group standard arises directly from the asylum statute itself and is an entirely reasonable doctrine, not inconsistent with the case law of the other circuits.For these reasons, amici argue that the Board must apply this standard in cases arising in the Ninth Circuit.

Matter of Shanu and the meaning of “admission”

In a case that ultimately was dismissed on other grounds, the BIA requested briefing and set oral argument on whether Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), remains viable since it now has been rejected by four courts of appeals.Another case raising Shanu remains pending before the BIA, however, and the Board recently indicated to the Immigration Counsel, amicus in the case, that it would ask for additional briefing and set oral argument in that case instead.Shanu holds that the term “admission” in INA § 237(a)(2)(A)(i)(I) includes “adjustment of status,” a conclusion the courts have rejected as inconsistent with the statutory definition of this term.Section 237(a)(2)(A)(i) provides that a person who is convicted of a crime involving moral turpitude committed within five years after the date of “admission” is removable.As a result, under Shanu, the date of a person’s adjustment may trigger the five year inadmissibility period even if the person previously had a lawful admission consistent with the statutory definition.In its amicus brief, the Immigration Council argues that the statute unambiguously provides that the date of adjustment is not the date of “admission” for purposes of this statute.

Watch for future postings on developments in these and other cases at the Board.

– guest blogging by Mary Kenney, Senior Attorney, American Immigration Council.

We begin a regular review at what’s happened and happening at the BIA.

Matter of Gamero, 25 I&N Dec. 164 (BIA 2010) (Jan. 13, 2010)

Has voluntary departure gotten complicated enough for you? Well, the BIA has added another chapter to the Vol. Dep. Book now with this decision. The BIA has determined that voluntary departure may only be reinstated by the Board if the Respondent provides proof of the posting a voluntary departure bond with the notice of appeal. As Gamero was not on notice of this requirement and the Immigration Judge failed to provide warnings of the need to provide proof of the voluntary departure bond with the notice of appeal, the case was remanded to permit warnings to be given. Presumably the Board is also allowing Gamero to comply with this new requirement.

Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010)(Jan. 27, 2010)

Just when you thought it was safe to live in the 9th Circuit, the BIA comes back with another repudiation of 9th Circuit precedent. The legal issue at hand is whether or not INA §254(i) trumps the permanent bar on admission found in INA §212(a)(9)(C)(i)(I)? Previously in Acosta v. Gonzales, 4329 F.3d 580 (9th Cir. 2006) determined that §245(i) did trump the permanent bar.

Since that time, however, the BIA directly addressed the question of the interplay between the two statutes and in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) found the opposite of the 9th Circuit. The Board found the §212(a)(9)(C)(i) could not be overcome, even through adjustment under §245(i).

Both cases, now consolidated by the BIA, arose in the 9th Circuit and the Board directly challenges the Circuit’s previous finding and urges the Circuit to adopt the Board’s administrative interpretation of the two statutes pursuant to Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) and Chevron, USA., Inc. V. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The Board points out in its decision that the Second, Sixth and Seventh Circuits have given deference under Chevron to the BIA’s interpretation of the two statutes.

Additionally, the BIA pointed out that the 9th Circuit had recently adopted it’s interpretation of the interaction between INA §§245(i) and 212(a)(9)(C)(i)(II) by giving deference to the Board because of the ambiguity of the statutes and in the process overturning prior 9th Circuit precedent.

In it’s analysis, the Board rejected the argument that it was bound by Mercado-Zzueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) that precludes an agency from “repeatedly putting forward an interpretation . . .” that has already been rejected as unreasonable. Diaz & Lopez at 190. The BIA says “take THAT 9th Circuit.”

Matter of Neto, 25 I&N Dec. 169 (BIA 2010).

The on-going saga of INA §204(j) and Matter of Perez-Vargas, 23 I&N Dec. 829 (BIA 2005) may be finally coming to a close. Under Perez-Vargas, the Board had determined that an Immigration Judge lacked jurisdiction to determine whether an employment-based visa petition remained valid under §204(j). The decision caused great confusion and a few Circuit Court cases as well. Three circuits, including the Fourth, Fifth and Sixth rejected the Board’s analysis after Perez-Vargas. As a result, the Board adopted the Circuit Courts’ interpretations and explicitly recognizes the Board’s and Immigration Judge’s authority to determine whether, despite a change of employment, an employment-based visa petition remains valid.

Sanity has now been restored—at least on this issue.

Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010).

A husband and wife, natives and citizens of China were granted asylum under INA §208. Their asylum applications were filed within one year following the birth of their second child. The Court determined that applicants are not allowed a year to file asylum following “changed circumstances.” The BIA points out that the regulations require such applications to be filed “within a reasonable period . . ..” T-M-H- & S-W-C- at 194, citing 8 C.F.R. §1208.4(a)(4)(ii).

The BIA refers to prior decisions and Supplementary Information included with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), that states that a person whose immigration status is terminated or expired is generally required to file for asylum within a “reasonable period,” which has been determined to be less than six months. T-M-H- & S-W-C- at 195.

The case is remanded to determine whether the 9 month delay by the female respondent in filing for asylum and a one-year delay in filing by the male respondent following the birth of their second child is reasonable. The IJ has been instructed to make additional findings of fact “with respect to the particular circumstances involved in the delay[s] . . ….” T-M-H- & S-W-C- at 196.

Matter of Morales, 25 I&N Dec. 186 (BIA 2010).

Respondent had filed for cancellation of removal for non-permanent residents pursuant to INA §240A(b). The Immigration Judge (“IJ”) denied the application and granted voluntary departure.

The IJ had failed to consider Respondent’s step-father as a qualifying relative in determining whether the requisite hardship standard had been met. The Board points out that the definition of “parent” under the INA includes step-parents who meet particular requirements and moreover, Board cases had recognized step-parents ahs visa petitioners for many years.

The BIA found that a step-parent meeting the definition of “parent” under INA§101(b)(2) and must be considered in making a hardship determination under INA §240A(b)(1)(D).

When this decision came out, it seemed unnecessary, but apparently at least one judge in Los Angeles, CA was unable to properly evaluate the meaning of “parent” pursuant to the Immigration Laws. Another positive step forward for the Board.

Matter of Rose, 25 I&N Dec. (BIA 2010).

Ms. Rose was married to a United States citizenship and received conditional permanent resident status through her husband’s petition on her behalf. Unfortunately, he died prior to the removal of conditions on Ms. Rose’s permanent resident status. The Respondent, Ms. Rose, filed a petition to remove the conditions on her residence, but the case was denied and the Respondent’s status was terminated.

The IJ reviewed the Service’s decision and likewise denied it because the I-751 Petition to Remove Conditions was not filed jointly and there was no determination that Respondent was eligible for a waiver. A direct appeal was dismissed and a motion to reconsider was filed.

In consideration of the issue before it, the BIA determined that the death of a spouse during the two-year conditional period waives the need to file a joint petition, but the surviving spouse need not file a separate waiver if the initial petition is filed timely and the Respondent appears for an interview.

The Board determined that INA §216(c)(1)(A) and (B) exempts windows and widowers from having to file a joint petition and attend an interview. Therefore, it was an error for the Service and the IJ to deny the case for failure to make a waiver claim. The BIA also reiterates that it is the Services’ burden of proving “by a preponderance of the evidence,” that the Respondent is removable. Matter of Rose, at 185. The record was remanded.

– blogging by Kerry Doyle, AILA Amicus Committee member.

Bayo v. Napolitano, No. 07-1069, — F.3d —-, 2010 WL 174231, (7th Cir.Jan. 20, 2010)

En banc, the CA7 is a tough nut to crack.Oral argument was heart-stopping.The questions came fast and hard: it seemed that every egg in the petitioner’s basket had been cracked.The question for us became: just how bad were we going to lose?

It was clear from the opening sentence of the Seventh Circuit’s first en banc immigration decision that the court was not fond of the petitioner. “Mohammed Bayo is not the most sympathetic of litigants,” Judge Wood dryly observed. She listed off his flaws: Mr. Bayo, a citizen of Guinea, had stolen a Belgian passport and used it to enter the United States; through his fraud, he was able to take advantage of the generous terms of the Visa Waiver Program (VWP) that the United States has set up for residents of certain favored countries. Given the Court’s dislike for Mr. Bayo’s actions, we were not surprised that it upheld his deportation order.

Then, in a Harry Truman-Chicago Tribune moment, we realized that the court’s decision, though unfavorable to Mr. Bayo, notably advances the constitutional rights of immigrants in theUnited States.The nut was cracked!

As most readers of this blog will know, residents of VWP nations can enter theUnited Stateswithout first obtaining a visa, in exchange for waiving their right to contest removal in the future. But it is not uncommon for VWP entrants who have overstayed their visas to seek adjustment of status, and USCIS often approves these cases without fuss. That was not to be the case for Mr. Bayo. When, after four years in theUS, he tried to become a lawful permanent resident through his marriage to aUnited Statescitizen, DHS issued an administrative removal order against him.

Bayo appealed, raising two principal arguments. First, he contended that he should be able to contest his removal and adjust status because at the time he signed the VWP waiver, he did not fluently speak English and did not know what he was signing. Second, he urged that under a plain reading of the Immigration and Nationality Act (INA), “immediate relatives” (including spouses ofUnited Statescitizens) are authorized to adjust status irrespective of the VWP waiver.

Initially, Mr. Bayo enjoyed some success in the Seventh Circuit. It’s possible that this was due more to the Government’s overreaching than to the merits of his own case. Although the right to a knowing and voluntary waiver of a constitutional right is a longstanding feature of Anglo-American jurisprudence, the Office of Immigration Litigation (OIL) argued that immigrants like Mr. Bayo have no constitutional right to a knowing or voluntary waiver, since the VWP waiver is entered into while they are at the border, seeking admission. Of course, theNewarkairport where Mr. Bayo entered theUSis not literally a border, but is considered, under a longstanding “entry fiction” in immigration cases, to be tantamount to a border. It didn’t matter, according to OIL, that VWP entrants were prospectively waiving the constitutional rights that they would acquire throughUSresidency. At first OIL also seemed to put no limit on the reach of its logic; under OIL’s initial theory (which it later tempered somewhat), the government could trick or coerce immigrants into waiving their right to a hearing.

Judge Rovner, the author of the Seventh Circuit’s original opinion, rejected this logic with an equally sweeping theory of her own. Citing to the Supreme Court’s recent Boumediene v. Bush, 128 S. Ct. 2229 (2008) decision concerning the right to habeas of Guantanamo detainees, Judge Rovner noted that the Constitution applies, in some circumstances, even outside the US. Therefore, the panel ordered Mr. Bayo’s case remanded for a hearing concerning whether his waiver was knowing and voluntary. Unsurprisingly, OIL filed a petition for rehearing, and Judge Rovner’s liberal reading of the Constitution on behalf of an unsympathetic immigrant may have been the linchpin to the Court’s granting, for the first time ever, en banc review of an immigration case.

On January 20, 2010, the en banc Court issued its decision in Bayo v. Napolitano. It first considered an important threshold question: whether it even had jurisdiction. OIL had argued that the Court did not have jurisdiction to review Mr. Bayo’s claim that he should be allowed to adjust status, because the VWP provision precluded review of all but the essential questions as to the Government’s deportation authority. The Court seems to have rejected this argument, since it found that it had jurisdiction to consider every issue before it, including the adjustment of status issue.

Next, the Court rejected an argument Mr. Bayo had raised in supplemental briefing after oral argument: that he was not subject to the VWP because he is not actually a citizen of a VWP country. The Court noted that the Board of Immigration Appeals had rejected this analysis in a prior published case, and the Court found that it was required to defer to the Board’s reasonable analysis.

The Court then went on to consider whether Mr. Bayo was entitled to a knowing and voluntary waiver, finding a simple and elegant way to avoid the contentious question of what “extraterritorial” rights immigrants have when they are at the border. Since Mr. Bayo had been residing in theUSfor years, the Court held that the “entry fiction” does not apply to him. The right he was waiving-the right to a hearing to contest his removal-is a constitutional right guaranteed to immigrants, like Mr. Bayo, who have lived in theUS. Unlike contractual rights, constitutional rights can, the Court said, only be waived through a knowing and voluntary waiver. And the Court refused to adopt a presumption of knowledge, as OIL had urged. Citing to the amicus brief filed by AILA and the Legal Assistance Foundation of Chicago, the Court explained that this course could negatively impact immigrants with strong and sympathetic claims to stay in theUS, like trafficking victims. Thus, the Court ultimately found that there must be some process to assure that VWP waivers are knowing and voluntary, although it expressed no opinion as to what that process should look like, and it speculated that the problem may be largely solved, given a newly implemented waiver process that is available in 21 languages.

Unfortunately for Mr. Bayo, the Court found that even if his waiver was unknowing and involuntary, he still could not win his case. The reason, according to the Court, was that he couldn’t show prejudice, since if he hadn’t signed the waiver, he wouldn’t have been allowed in theUS in the first place. The original panel had asserted that Mr. Bayo was prejudiced because he lost his right to pursue adjustment of status; if he had refused to sign he could have returned toGuinea, obtained a visa, come back, married, and adjusted status. Judge Wood found that this type of prejudice was simply too speculative.

The Court also rejected Mr. Bayo’s claim that he ought to be able to adjust status in the United States. This decision came as no surprise, since the majority of courts have held that a VWP entrant cannot adjust status, unless the application is filed within the 90-day term of their nonimmigrant visa. Still, these decisions are problematic from an immigration practitioner’s perspective. First, as those of us who do this work know, VWP overstays adjust status all the time. (Hopefully the Bayo decision will not dramatically change USCIS’s current practice of allowing most of these adjustments to go forward.) Second, the 90-day distinction is counterintuitive, since USCIS is typically suspicious of a tourist nonimmigrant who immediately gets married. Such newly-weds are thought to have “immigrant intent,” which USCIS considers entirely the wrong way for a tourist to be thinking about her trip. This is not to say that tourists never fall in love, as those of us who have seen Roman Holiday know full well. Maybe Judge Wood was confusing Sandra Bullock for Audrey Hepburn. Whatever.

It is no joke that Mr. Bayo lost, and the Court’s decision raises the specter of additional denials of VWP adjustment of status cases in the future. At the same time, the decision contains a thoughtful and important analysis of the constitutional rights of immigrants in the US. After Bayo, VWP entrants in the Seventh Circuit who can show some type of prejudice should be able to demand a hearing as to whether their waiver was knowing and voluntary. For example, an immigrant presumably could show prejudice who can show facts existing at the time of her entry that would have given rise to a claim for immigration relief. The decision also could pave the way for challenges, in appropriate cases, to unknowing and involuntary stipulated orders of removal. In the end, one could say that Mr. Bayo won the war, even if he lost his battle.