Tracym

Re. the Momeni case, and a poster here who reported being deported when trying to AOS with an overstay - it has been said it's just one case, others may be fine.

I am thinking it might now be a trend - here's a New York Times article. He had tried to postpone his AOS interview, and had overstayed and worked illegally.

Third Circuit it appears.

http://www.nytimes.com/2008/11/21/ny...html?ref=world

Mr. Bradley, 36, had been swept up in tougher enforcement of the Department of Homeland Security’s Visa Waiver Program...

As the spouse of an American citizen, Mr. Bradley was eligible to apply for an adjustment of his administrative status and seek a green card.
It is a common enough process: Immigrant law experts estimate that hundreds of people who have overstayed their visa waivers apply successfully for green cards every year.

But what seemed to them a straightforward process to make Mr. Bradley a legal resident soon turned into a bureaucratic and legal nightmare. Last month Mr. Bradley, a construction worker who says he has no criminal record in either the United States or New Zealand, was hauled from his home in handcuffs and put in an immigration detention center in Elizabeth, N.J., and told he was going to be deported.

ian-mstm

I like this bit: "Last month Mr. Bradley, a construction worker who says he has no criminal record in either the United States or New Zealand..."

No record... doesn't mean he wasn't here illegally, or that he worked illegally... he just never got caught! Until now.

I especially like this bit: "Court papers filed by Mr. Asatrian say that Mr. Bradley 'vaguely recalls' signing the waiver when he passed through immigration at Kennedy International Airport, but that he was not in any condition to waive his rights 'knowingly and voluntarily' since he was not sufficiently knowledgeable about his legal rights and was 'groggy from the sleeplessness, jet-lagged and sufficiently intoxicated.'"

If this is successfully upheld in court (if it gets that far), we've probably seen the beginning of the end of the VWP.

Ian

Tracym

Oh, I agree - I don't think that argument will wash. Ummm... I signed it but I didn't know what I was signing... Yeah right.

But on the board, I have consistently seen "Overstays are forvigen for spouses of USCs" and "Illegal work is forgiven for spouses of USCs".

I personally sure wouldn't count on that anymore.

Rete

Apparently it is the Bradley family's method of immigrating to the US as both his brother and sister have done the same thing. I would bet my IRA (what's left of it that is) that if he hadn't been so arrogant to postpone his initial interview date, he would be a PR and not have encountered any difficulties.

Bluegrass Lass

I agree. This guy, unfortunately, brought these problems on himself by not attending the 2 different interviews that were scheduled. His status in the US could have been resolved 7months ago, but apparently it wasn't that important and look where it's got him.

He does have a small point that most peeps using the VWP have no clue what rights they are signing away when they sign it, especially after very long flights when they are tired (and in his case, drunk).

Tracym

Very possibly. One does wonder just WHY he wanted to keep posptponing things. Of course, no guarantee the same thing wouldn't have happened anyway...

Yes they are tired (and maybe stupid enough to be drunk). But they still signed it. If people sign things they have no clue about, that is their error though imo.

fatbrit

"Immigrant law experts estimate that hundreds of people who have overstayed their visa waivers apply successfully for green cards every year."

I'd query the experts' figures! My non-expert guess is that it's in the thousands.

Nobody seems to go to the heart of the legal question in these stories over whether it is right to remove judicial review from the equation for certain people. I see strong parallels with the Gitmo fiasco. America has no history of providing redress except within the court system (the interpretation of the role of an ombudsman here is farcical, for example!). So, if we are to continue to remove rights without judicial review, we are simply no longer living in the society our founding fathers proposed.

tamms_1965

He's been here since 1996? No sympathies.

Folinskyinla

Hi:

Actually, the issues here are coming up in a different context -- and one I am involved in via multiple litigation -- "arriving aliens" with final orders of removal who want to file for adjustment of status.

Part of the problem is that in 2003, with the creation of DHS, the former unified INS was abolished and replaced by the separate agencies of CIS and ICE. So, it used to be that you notionally had one person, your local INS District Director, with the authority to adjust or deport.

Now, you have CIS who can adjust if the person is not removed, and ICE whose very mission is to remove. In the Kalilu case [which was amended yesterday], the court called the right to adjust as "meaningless" while the 7th Circuit in Ceta, in reliance on Kilalu noted that the right to adjust would be a "mere illusion" absent "minimal cooperation of CIS and ICE.

Also, the Second Circuit, remanded four combined case with the same issue for resolution by the Board. [BTW, the Board's decision is "not our problem" -- so it is somewhat akin to the VWP adjustments.].

Yes, I know that Kilalu and Momeni are both from the 9th.

Tracym

I guess the NYT guy is appealing in the third circuit. Will be interesting to see what happens.

Does this story (and others) make you think that people should be more cautious now adjusting, especially from the VWP, with an overstay?

Folinskyinla

Joisy is the Third Circuit [in Philly]. NYC is in the Second Circuit [in NYC].

Tracym

Right - he lives in New Jersey. It was just that the New York Times (NYT) reported the story.

"He is challenging his deportation in the United States Court of Appeals for the Third Circuit"