There were two things that I wanted to share. In El Badrawi v. DHS, I am surprised that the Department of State actually revoked the visa while Mr. El Badrawi was still in the United States when 9 FAM 41.122 N3 specifically says that “under no circumstances” should this be done. I wonder if the arrest by ICE was somehow premised on the visa revocation?

The other point that is interesting is that while DHS has rejected equating a period of authorized stay, POSABAG with status, I can tell you that in at least one case an I-485 was approved based on their POSABAG being regarded as status. When USCIS asked for proof of status, I explained that (1) The statutes passed interchange the terms “period of stay authorized by the Attorney General” and “status.” (2) Congress has been doing this interchange for years and it is presumed, pursuant to Lorillard v. Pons quoted by the AAO, to know of the existing administrative interpretation of POSABAG to the contrary. Therefore, if Congress actually agreed that POSABAG is not status and status is not POSABAG, then Congress would have stopped using them interchangeably. And (3) the only statement that POSABAG is not in fact “status” comes from the Neufeld Memo on Unlawful Presence, which is itself not binding.

By noting the “Use” paragraph from the Neufeld Memo on Unlawful Presence, noting that in Broadgate, USCIS (thru counsel) explained that if a memo is issued without a “P” it is not binding despite incorporation into the AFM, the statement in the Neufeld Memo on Unlawful Presence that POSABAG is not “status” also must not be binding because this Neufeld memo also was issued without a “P.” It worked and adjustment was granted.

Furthermore, for someone who once said, “I don’t have the expertise in VWP/AOS matters to comment on briefs” (paraphrasing), you seem to write awfully more blogs on this particular topic than those who have actually litigated this issue in federal courts.

Lastly, I realize AILA has to be diplomatic with the government officials in Washington to get things accomplished. But when you defend the government’s actions in this case, you are simply an advocate for the government. Perhaps, you should go work for the government, which will then perfectly explain your opinion here.

My two cents…

Hopefully this will be the first of many to come.

Far from being a "constitutional victory" the implication of the 7th Circuit's reasoning is to vitiate the long held principle that persons in the United States have a constitutional right to a hearing before being removed. While that right can be waived, in Bayo, the 7th Circuit has essentially made the waiver a legal fiction by allowing non-waivers to be deemed waivers even though they do not satisfy the traditional requirements for the same. By doing so the 7th Circuit has opened the door to Congress to eliminate removal hearings altogether.

For example, under the logic of this decision a VWP nonimmigrant whose name was forged to the waiver by a CBP officer could nevertheless be removed without a hearing because even though he was deprived of due process by not being permitted the opportunity to decide whether or not to sign the waiver, he was not prejudiced by that due process violation because had he refused to sign the waiver he would not have been admitted. Indeed, Congress could simply amend the INA to deem the waiver signed by anyone entering as a VWP nonimmigrant and, again, under the rationale of Bayo, the "waiver" would enforceable against all VWP nonimmigrants because, even though it is a due process violation for them to be deemed to have signed a waiver they may never even have seen, the violation is harmless because otherwise the VWP nonimmigrants would not be admitted. And, to carry the matter to its reducto ad absurdum, Congress could deem such waivers made by all persons seeking admission in the future in any status and thereby abolish removal hearings altogether, and its actions would still pass Constitutional muster under Bayo.

In short, the Bayo decision reflects a grave misapprehension of the nature of the due process violation that the respondent suffered and the prejudice arising from it. The due process violation was the failure to provide him with a hearing, not the failure to translate the waiver to him in a language he understood (although that may have been a due process violation as well). The fact that the waiver wasn't effectively translated to him should have meant the DHS cannot be allowed to use the "waiver" as a defense to the due process violation because, not being, knowing, it was not a "waiver" at all, regardless of any issues of prejudice.

I believe practitioners who face a similar issue in the future should point out this gaping hole in Bayo's logic.

Michael E. Piston
Attorney at Law
Piston & Carpenter P.C.
4000 Livernois Ste 110
Troy, MI 48098
248-680-0600
After Hours: 248-686-2168
Fax: 248-680-0627