Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by crosscountryrider
(Post 8291948)
However I am still not a attorney and I also don't know what the courts intent was. I can only imagine that they would have pulled any possible legal string to get rid of the OP.
As you can read the initiator for this was a passport fraud investigation and I don't believe that the USCIS want to give guys like the OP any chance to stay in US. VWP was maybe the obvious reason to get rid of him without a chance to appeal. The oral transcript is far more informative as to the arguments than the written account - apart from being highly amusing it was also very enlightening particularly in reference as to the courts confusion why this was not being presented as a fraudulent entry as opposed to a VWP overstay. IMHO, limitations aside re: government not the alien determining the grounds of removal, Bayo's defense team would have had a far better shake of the tree had they pushed for this as opposed to the more abstract argument of due process visa via the extent to which Bayo 'knowingly and voluntarily' waived his rights due to the language barrier as per his entry on the VWP. But I digress :) The fraudulent passport entry was an initiator in this case however, this was brought to light by Bayo's subsequent AOS application. This begs the question; 'Had Bayo not entered fraudulently on the VWP with a stolen passport (i.e. had he been a bona fide VWP entrant who had overstayed) would his case have been treated more favorably?' IMO, and this is pure supposition on my part, no it would not have. The DHS arguments (although imo at times weak as to why this was being processed as a VWP overstay) were ultimately accepted by the court, hence the decision. In that respect, the fraudulent entry was not really a factor in the ruling - the emphasis was on the VWP overstay and the post 90 day filing.
Originally Posted by crosscountryrider
(Post 8291948)
I still don't believe the this case is a reference for all VWP overstays and regulates the principle law behind Immigration via VWP.
Originally Posted by crosscountryrider
(Post 8291948)
What I found most annoying in this forum is the fact that any of those judgements is being used to define in principle why AOS via VWP could be illegal. As a matter of fact the court stated that a Ajustment of status from VWP is legal if they are no other grounds for denail.
Originally Posted by crosscountryrider
(Post 8291948)
So my assumption is there is still no principle court judgement which bans or alter the existing regulations for AOS from VWP.
Finally, court decisions aside ultimately the biggest determining factor in all of this will be to what, if any, extent DHS /USCIS wishes to utilize the option of denial and subsequent removal solely on the grounds of VWP overstay. Happen it could be the case that they would only really chose to exercise this if they felt it was necessary or warranted as a result of other contributing factors. It could well be the case that without other contributing factors - for the most part USCIS will continue, as in the past to 'forgive overstay on the basis of marriage to a USC'. Unfortunately we have no real way of determining this - it's their sandpit and their rules. Alls we can do is make available what information we have. People will make their own decisions, hopefully through discussions like this they will be more informed decisions :) |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by crosscountryrider
(Post 8291948)
I still don't believe the this case is a reference for all VWP overstays and regulates the principle law behind Immigration via VWP. Maybe one of the attorneys can bring some light into this.
EMartin always like your statements ! |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by emartin
(Post 8293951)
I don't believe this case changes the law at all - it is the case in every jurisdiction that a VWP overstay can be removed and has waived the rights to contest the removal. Whether a particular district enforces that right depends on the District Director.
Rightly or wrongly, my prior understanding was that AOS regulations trumped the VWP regulations - hence the 'forgiven' overstays. However the summation in this case would seemingly dispute that. Rather than conflict, they find concord, with the emphasis being stressed on the question of whether or not the alien submitted an application prior to the expiry of the 90 day window as the important determinate. What are your thoughts on this matter? :) |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by emartin
(Post 8293951)
I don't believe this case changes the law at all - it is the case in every jurisdiction that a VWP overstay can be removed and has waived the rights to contest the removal. Whether a particular district enforces that right depends on the District Director.
I pretty much agree. In my mind, the main point is that there is now another negative published Court case adverse to marriage after VWP. And we know that CIS has some mighty strange ideas about the law at times. I've seen too many examples of CIS adjudicators reading the permissive "you may" as "we must." Also, I'm not so sure that preserving some modicum of judicial review is a real reason to get that application in before 90 days. Not mentioned in Bayo is that "discretionary" denials are immune from judicial review in any case. Bottom line: if they want to deny the case, they can figure out a way and there will be nothing that a lawyer can do about it. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by S Folinsky
(Post 8324826)
Elaine:
I pretty much agree. In my mind, the main point is that there is now another negative published Court case adverse to marriage after VWP. I don't see that there is anything wrong with marriage while having entered under the VWP. The negativity would come from attempting to adjust status while remaining in the US after entry under the VWP. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by Rete
(Post 8326350)
I don't see that there is anything wrong with marriage while having entered under the VWP. The negativity would come from attempting to adjust status while remaining in the US after entry under the VWP.
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Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by S Folinsky
(Post 8324826)
Also, I'm not so sure that preserving some modicum of judicial review is a real reason to get that application in before 90 days. Not mentioned in Bayo is that "discretionary" denials are immune from judicial review in any case.
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Re: VWP Entry and Adjustment of Status: New Decision
Update out of San Diego (thank you crosscountryrider, for bringing this to attn)
An internal email released July 9, 2010, (I saw it today at one of my interviews but was not allowed to take a copy out) released by the San Diego District Director to all Officers processing adjustments states the following:" To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview." <snip> Up until last week, where a Visa Waiver entrant marries a U.S. citizen and then files to adjust status based on that marriage before being placed in removal proceedings for having overstayed, USCIS has been open to approving the adjustment of status application. Now, after the recent email and citing Momeni, USCIS in San Diego and in other cities take the position that only adjustment applications filed within the first 90 days of arrival (as in Freeman) are approvable and that if you wait until after the 90 days or if you wait until after you receive a Notice to Appear for Removal before you file your adjustment application, case will be denied. http://www.visalawyerblog.com/2010/0...and_marri.html UPDATE: On Sept 20, Mr Sapochnick posted an update to the above blog entry: http://www.visalawyerblog.com/2010/0...d_marri_1.html "I could never imagine that they will follow through with denials of Visa Waiver overstay cases, but our first denial came in on Friday. See below the complete decision." Included in the post is a pdf of the denial letter his firm received. |
Re: VWP Entry and Adjustment of Status: New Decision
It's simply rules out the overstay like any other court did + the OP filed AOS based on a stolen passport (do not miss this). What this early time of scrutiny tells the powers that be "We don't need you" |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by Mick1935
(Post 8888968)
The one thing I have been made aware of, in the US of A, being a criminal... Stolen passport, and then, so connivently married? Goes against what America stands for, honesty in your dealings with anybody, especially the Government.
What this early time of scrutiny tells the powers that be "We don't need you" |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by meauxna
(Post 8885604)
Update out of San Diego (thank you crosscountryrider, for bringing this to attn)
An internal email released July 9, 2010, (I saw it today at one of my interviews but was not allowed to take a copy out) released by the San Diego District Director to all Officers processing adjustments states the following:" To all Adjudicators effective immediately, any immigrants that have entered to the US under the Visa Waiver program and failed to file for adjustment of Status before the expiration of the 90 days authorized stay, MUST BE denied at the time of the interview." <snip> Up until last week, where a Visa Waiver entrant marries a U.S. citizen and then files to adjust status based on that marriage before being placed in removal proceedings for having overstayed, USCIS has been open to approving the adjustment of status application. Now, after the recent email and citing Momeni, USCIS in San Diego and in other cities take the position that only adjustment applications filed within the first 90 days of arrival (as in Freeman) are approvable and that if you wait until after the 90 days or if you wait until after you receive a Notice to Appear for Removal before you file your adjustment application, case will be denied. http://www.visalawyerblog.com/2010/0...and_marri.html UPDATE: On Sept 20, Mr Sapochnick posted an update to the above blog entry: http://www.visalawyerblog.com/2010/0...d_marri_1.html "I could never imagine that they will follow through with denials of Visa Waiver overstay cases, but our first denial came in on Friday. See below the complete decision." Included in the post is a pdf of the denial letter his firm received. The USCIS failed to mention this exception in the denial as you can see below. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by S Folinsky
(Post 8889296)
You left out the most important description in the blog:
The USCIS failed to mention this exception in the denial as you can see below. Internal memo's as I understand it are administrative guides to the AO's. They interpret the rules/regulations /law as it is written not as particular offices would like it to be. Thus, until the actual statutes change, such a memo informing AO's to automatically reject any AOS submission made post 90 days from the VWP expiry is imho a flagrant disregard of statute law. It will be interesting to see how this unfolds. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by Songbird
(Post 8891118)
Internal memo's as I understand it are administrative guides to the AO's. They interpret the rules/regulations /law as it is written not as particular offices would like it to be. Thus, until the actual statutes change, such a memo informing AO's to automatically reject any AOS submission made post 90 days from the VWP expiry is imho a flagrant disregard of statute law. It will be interesting to see how this unfolds.
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Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by Songbird
(Post 8891118)
The problem as I see it is that this 'exception' is seemingly (based upon the other courts decisions referred to prior in this thread) being accepted by the courts as being of secondary significance. Regardless of what the actual regulations laid down in law are regarding this issue, USCIS have in a number of circuits effectively had their interpretation accepted and secured the decision. Now i don't know about the USA, but in the UK when similar conflicts have occurred visa via the 'law' and 'interpretations', then a Judicial Review (JR) is invariable undertaken to provide clarification. Is there such a process in the USA? If so I would assume that rather than individual lawyers waging appeals in the event of this happening to their clients that there would be more mileage in a collective body seeking the USA equivalent of a JR.
Internal memo's as I understand it are administrative guides to the AO's. They interpret the rules/regulations /law as it is written not as particular offices would like it to be. Thus, until the actual statutes change, such a memo informing AO's to automatically reject any AOS submission made post 90 days from the VWP expiry is imho a flagrant disregard of statute law. It will be interesting to see how this unfolds. "To [use the visa waiver program], they must waive ‘any right … to contest, other than on the basis of an application for asylum, any action for removal.’ Momeni has not sought asylum from Germany. That basically, is the end of the case." The alien's argument also notes a case called Bradley which notes that courts nationwide have applied Momeni. While this case has been pending, this forum brought the blog post to our attention. [Thank you BE]. It is being argued that your contention is correct. An interesting case to read is a recent one from DC District Court called Broadgate v USCIS. The analysis therein supports the challenge. |
Re: VWP Entry and Adjustment of Status: New Decision
Originally Posted by S Folinsky
(Post 8336692)
Concur. In such cases, the danger is at the POE. If person is turned around, then marriage plans will have to change.
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