Folinskyinla

Hi:

I am sorry what happened to you. I have often mentioned that I could not advise what you did, but I left implicit that I might advise the action you took. Now, I will not.

The court case in question:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C4A8C6BAC91DAF7F8825741D004F5C7D/$file/0755018.pdf?openelement

To be quite frank, there is so much case law coming out, it is impossible to keep up with it all. I do recall seeing the Momeni case. He was represented by Bob Reeves' law firm which is excellent [we often consult with each other]. However, your facts are quite different than Momeni, he got married after his arrest!

Also, the actual holding of the case is unremarkable -- you don't get adjustment, that is the end of the road. That is nothing new. What is different in your case that DHS [both CIS & ICE] converted a ruling that they can do something into they should do something [a not so uncommon event, which sometimes drives me nuts].

To the moderators -- this posting should be placed at the top! This posting removes the "visa wavier express" topic from "10 foot pole" territory. It can now be touched with no problem.

To some of the "regulars" on this list who like to make snide comments [you know who you are], although I am quite saddened by the poster's case, I think that this poster's situation is response to my educated paranoia about what can happen -- so please, no more "it has never happened so it is without risk."

Back to the original poster -- you comment about "backdating" is incorrect. As I mentioned above, the Momeni holding did not change anything. It is almost axiomatic that an adjustment application is a "continuing" application -- that means that the final adjudication is done on the law at the time of adjudication, not the date of filing. On the "backdating" thing, you cannot do that for the purpose of malpractice actions. Your attorney did nothing wrong.

I'm sorry about what happened to you -- you did not deserve it. In my opinion, I think DHS abused their powers, but you are left without a remedy.

Folinskyinla

Hi:

There is a legal reason for what they did -- she overstayed the 90-day VWP admission. Period end of story. As for the underlying reason, it is clear to me that the Dark Forces [my friend J Fong uses the term "cossacks" and he isn't even Jewish. "Cossack" was one of the most vile insult my grandparents would use, but I digress] converted a case saying the "could" to one that they "should." The Dark Forces do this all the time.

My late friend Monica Stolze once objected to my referring once to CBP as having the powers of the Gestapo. She said the characterization was insulting -- to the Gestapo. Say what you will, the Gestapo followed the rules. The rules were quite objectionable, but they followed them.

meauxna

I'd be happy to, but I think it will only be effective with the issue spelled out a little better. It's quite likely that the whole thread would not be read.
Can you write a summary to go with the post I've quoted here?

Tracym

Just to satisfy my curiosity - could you explain the above to me - what has this posting changed?

YB1

There is no stamp in my passport. My VW has also been removed (as should be). There were no remarks from UK immig on passing back thru UK passport control.

YB1

First off: I appologise for hijacking the original posters story!

Secondly, my husband + the lawyer have all the paperwork hence my lack of detail at the end of my story ie. not able to quote the exact case / details.

Thankyou Folinskyinla for clarifying - you seem familiar with the connected cases/rulings. And you have made it clearer to me than my lawyer!!

I was only trying to show the reality of the pitfalls of entering the US this way.

RE: 10yr ban - no one understands or can explain why 10yrs? I have absolutely NO skeletons in the closet!

Tracym

[QUOTE=YB1;6708030RE: 10yr ban - no one understands or can explain why 10yrs? I have absolutely NO skeletons in the closet![/QUOTE]

Length of "overstay"?

YB1

Re: VWP overstayed by ??? days?

jan 4th 08, VWP expired.
Green Card interview and detention date: 29 June 08

VWP overstayed by estimated 147 days.

Tracym

ok, that isn't it then - Is deportation an automatic 10 year ban?

YB1

My lawyer did say it was unjustified* and that it pretty much came down to the whim of the Immigration official who gave the ban.

(*only one other person in Nevada has ever been issued a 10yr ban - and he committed many felonies)

YB1

I think Folinskyinla can give a better summary than I - Sorry but I'm still confused by all the various 9th Circuit Court details!

Songbird

Interestingly enough I am involved on another board discussing this exact case (Momeni - 9th Circuit) )and the broader issues it raises. FWIW here's my $2 worth.

As I read it the distinguishing features of the Momeni case are :

1. Momeni entered on a VWP
2. Momeni did NOT get married during the VWP allowed duration of 90 days.
3. Momeni was taken into custody for overstaying on the VWP following which he then sought an AOS on the basis of his marriage.
4. Momeni was NOT a VWP marriage as such, Momeni had no legal status in the US ( VWP or otherwise) when he got married. (Unless of course the only issue of relevance is HOW he entered - is that the case ???)

IMHO had Momeni gotten married within the 90 days of his VWP entry and made application for AOS - then this would probably never even had been brought before the courts. Seems to me whole case rested upon two facts, 1 ) that this marriage took place AFTER his VWP status expired, and 2 ) he applied for aos AFTER he was taken into custody. Hence the no contest clause ( i.e the VWP waiver of rights) superseeded his aos petition. Thus the issue before the courts wasn't that of VWP marriage per say rather it was purely that of a VWP overstayer. It was for that violation he had been taken into custody. His subsequent marriage AFTER that violation and his later application for marriage-based AOS was always going to be the 2nd horse in the race so to speak.

In the Momeni case direct reference and comparison was made in the opinion re: his circumstances and that of the Freeman case.
"None of the relevant circumstances of Freeman pertain here. Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married after his 90 days expired; Freeman applied for adjustment of status during the 90 days, whereas Momeni applied after the 90 days expired. These distinctions disqualify Momeni from circumventing the Visa Waiver Program’s no contest clause by means of adjustment of status."

and then...

"...to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute...An alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum). Freeman is a narrow exception to the rule, but Momeni doesn’t fall within this exception."

Noting those opinions the following comes to mind.

It's my understanding that the Freeman case can effectively be divided into two parts.
1. Can a person still be regarded as a 'spouse' for the purpose of AOS if they are widowed prior to being married two years.
2. The no-contest statute as defined by the VWP and linked directly to that the question of the marriage-based AOS for VWP vistors.

Now #1 doesn't really concern us for this discussion but #2 does directly address the whole VWP / AOS question. The key thing that jumps out to me from the Momeni opinion is this; "...to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute..." as it is clear that crux of the whole argument around the no-contest / AOS statutes centered on this point i.e avoiding a conflict between these two statues.

Although the Freeman case was complicated by the whole widowed spouse issue primarily the Govt's opening salvo centered on the no-contest statute i.e that Freeman, as a VWP entrant had waived any rights to contest removal following the expiration of the 90 days. Freeman countered with the argument that "...once she (and her husband) initiated the adjustment of status process by filing the necessary forms, her right to remain in the United States and to challenge any adverse decision became subject to the procedural protections governing adjustment of status applications." This argument was supported by the following; "Section 1255 explains that certain classes of non-immigrants may petition the Attorney General for adjustment of status to that of a lawful permanent resident, provided that "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to [her] at the time [her] application is filed." § 1255(a). Included in the class of non-immigrants who may petition for LPR status are VWP entrants, but only those who seek adjustment pursuant to an immediate relative petition. § 1255(c)(4)" Hence a VWP visitor can, upon marriage to a USC, not only seek an adjustment of status, but also remove themselves from the regime of the VWP no-contest statute; an argument that was affirmed to be correct in the concluding opinion; "...the adjustment of status regime makes clear that a VWP entrant is assimilated into the procedural world of adjustment of status applicants once an immediate relative petition is properly filed, and not relegated to lesser rights by virtue of the VWP's no-contest clause." Interestingly, from my reading of the case, her right to adjust status as a VWP entrant was not even challenged by the Govt. in the respect that had her husband NOT died this adjustment would have been processed as a matter of course.

Going back to the Momeni case, as an AOS petitioner has the right to appeal a denial or ultimately contest removal before an IJ this seemingly contradicts and conflicts with the no-contest statute of the VWP. Hence the stated opinion in Momeni "...to allow an adjustment of status petition after the 90 days has expired would create an avoidable conflict between the adjustment of status statute and the no contest statute..." It therefore seems to me that in the distinctions they made between Momeni and Freeman, and their stipulation of the 90 days, the 9th circuit have actually more clearly defined the following, which seeks to avoid a conflict re: no-contest / AOS statutes:

1. VWP visitors seeking marriage-based AOS who properly petition PRIOR to the 90 day expiration will be afforded the same rights and benefits as any other AOS petitioner.

2. VWP visitors seeking a marriage-based AOS that DON'T properly petition prior to the 90 day expiration are NOT afforded the same rights and benefits as any other aos petitioner. Further they remain subject to the no-contest statue and could find themselves removed if taken into custody.

This is supported by the opinion in Schmitt v. Maurer 10th Circuit June 2006 (referenced in Momeni) were it was it was stated;
During the first 90 days during which an alien is lawfully present in the United States under the Visa Waiver Program, the alien may apply for adjustment of status without any conflict arising between the two statutes. See 8 C.F.R. § 1245.1(b)(8). The statutes authorize two different results only when an alien overstays his visa and is ordered removed before the alien files a petition for adjustment of status.(1) Thus, an alien's decision about when to file an immediate relative petition controls whether the statutes are in "conflict."

The Momeni decision could arguably have major implications for those seeking a VWP->marriage->AOS, should USCIS chose to take this opinion and run with it. To what extent 'Momeni' is employed pro-actively by USCIS remains to be seen. Surely it would be the case that *IF* USCIS were intent upon trying to employ the Momeni decision (as defined by the 9th Circuit) then they would have to initiate that at APPLICATION stage (i.e. auto reject any aos petitions from people outside of the 90 day VWP expiration date) ? Given that they are not doing this would indicate (at this stage anyways) that providing you don't cross paths with ICE and end up in custody then they are continuing with the existing practice. Alternatively, some local offices ( as it would appear to be the case here) may interpret this case to apply to all visa waiver entrants who overstay their 90 days and then file an aos petition whether or not a person is ever placed in removal. Who knows ? I guess IF they really wanted to stop people marrying and petitioning for aos on the VWP then they probably could do that a lot easier than messing with this - they could just either not allow anyone to marry on a VWP or allow them to marry but not allow them to aos in-country. I guess really the final word rests with USCIS (as always), it's their ball, their game and they determine the rules.

meauxna

Except CIS personnel don't write the laws (rules, statutes); they have to interpret and enforce the laws they're offered. It's the interpretations that differ from office to office, making this even more of a minefield.
I also have the impression that it matters if the alien is in the 9th Circuit or not.

YB1

FYI - My case was at the Reno, Nevada office.

meauxna

Wow, some juicy stuff in there....


If a Visa Waiver Program entrant does not leave when the 90 days expires, life in the United States goes on. It may go on for many years before the alien comes to the government’s attention. There are legal means by which aliens may marry United States citizens, obtain visas, and obtain adjustment
of status, but overstaying the 90 days for tourists in the Visa Waiver Program is not among them.