meauxna

Discussions frequently erupt here about adjusting status as an immediate relative after a VWP/Visa Waiver Program entry. Most often, the discussion is around the danger/problems of planning this before entry to the US but early last year, attorney Susan Pai concluded that a wind of change was blowing in DHS and that there were new problems for aliens adjusting after the 90 day VWP entry had expired.
http://britishexpats.com/forum/showthread.php?t=589806

A new case was published last week that was sent to me in private message with a request to post it to the group. User Songbird and I read through it, listened to the oral arguments (amusing) and tried to figure out why this decision would be important to the readers of this forum.
Songbird: I don't want to steal your thunder on this; you are a good reader and a great concluder. Thank you for your help with this; all credit to you.

The United States Court of Appeals For the Seventh Circuit has said:

At first glance, it appears that there is a conflict between the adjustment-of-status statute, 8 U.S.C. § 1255(c)(4), and the VWP statute, 8 U.S.C. § 1187(b)(2). Upon closer examination, however, we believe that they can be reconciled. During the time when a nonimmigrant visitor is within the VWP’s 90-day window, she may submit an adjustment-of-status application based on an immediate relative. An application submitted at that time would not represent a challenge to removal. After the visitor overstays their 90-day visit, however, the effect of the VWP waiver kicks in, preventing any objection to removal (except for asylum), including one based on adjustment of status. All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed. See McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), to its facts, as the court in Freeman allowed an adjustment-of-status application filed prior to the expiration of the 90 days under the VWP); Zine, 517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006). Bayo filed his application for adjustment of status long after his 90 days were up. As a result, his adjustment-of-status application is barred by his valid VWP waiver or by the fact that in the absence of a waiver he never would have entered the United States in the first place.


This tracks with Susan Pai's urgent advice in Feb 09, for VWP entrants to file their AOS applications before their 90 days is up.
As Songbird put it, "You either apply within the 90 day window or you run the real (proven risk) of removal. Full stop."
Her conclusion, with which I agree is this:
This decision, coming on the back of other recent decisions, clearly illustrates the danger implicit in the thinking that marriage to a USC following a VWP entry will offer protection in the event of an overstay. Clearly it will not. The message from this decision would appear to be quite emphatic - VWP entrants seeking AOS based upon an immediate US relative (e.g. spouse) will find little, if any relief, should they apply after the 90 day VWP expiry date.

Because similar decisions have been reached in courts across the country, it could well be that USCIS could decide to exercise this option more frequently.
The reason this matters is twofold:
1) It's been long-maintained that overstay is 'forgiven' (or not calculated) for immediate relatives of USCs
2) By fixating on the VWP overstay trumping the AOS via a citizen marriage, DHS can remove the alien without the court's interference, under the VWP guidelines.

This case is perhaps an example of the government choosing that path exactly because they get to keep it out of the court.
The defendant in this case, Bayo, used a stolen passport from a country of which his is not a native or citizen, and entered the US with it, under the VWP. Instead of going after him for the obvious fraud, the government chose to let the VWP issue stand, so that they had complete control over his removal.

I don't know what else this case might mean (there are some other issues that may be setting new precedent on other topics) but I do think that the posters here who have claimed 'overstay doesn't matter' should be aware that it might matter now, and people adjusting from a VWP should know that what was, in the past, may not be, in the future.
If you consult with an attorney about your AOS, you should ask them to read this decision to see if it may have a bearing on your case.

BritishGuy36

Good info.

Perhaps we should upgrade the phrase '10-foot pole' to '20-foot pole'?

fatbrit

For folks who don't understand the US federal court system, I'd like to add the following:

The Court of Appeals is divided into 11 circuits.

Precedent set in one circuit is not binding in other circuits.

So although this ruling is important and should be well noted, it is not binding in any of the other circuits.

Songbird

Agreed Fb - however, this statement in the ruling is particularly worthy of note in that it specifies decisions made in the 5th, 9th, 6th, 10th circuits. Including their own decision (7th circuit) that's 5 circuits that have addressed, some more directly than others granted, this issue and reached similar conclusions. This does, imho, indicate that while rulings are not as you rightly say binding in other circuits, should it be raised elsewhere then these decisions could carry weight and impact. Five out of 11 circuits is still a minority, but imo a substantial enough of one to give sustenance to similar cases that may be brought for consideration by USCIS in other circuits

All of the circuits to have addressed this issue have held that the VWP waiver prevents an alien from applying for adjustment of status after 90 days have elapsed. See McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), to its facts, as the court in Freeman allowed an adjustment-of-status application filed prior to the expiration of the 90 days under the VWP); Zine, 517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006).

fatbrit

Yep! But I thought it best to point it out to those with a more black-and-white view of the law.

BTW, Mo's link ain't working. The summary's here: http://www.leagle.com/unsecure/page....fco20100120139

StephieFaith83

I really don't understand a lot of the legal terms.

So if someone adjusted status within their 90 days, the time they are waiting for the AOS to be processed is not considered overstay? But if they waited until after their 90 days was up and then filed, the fact that they'd overstayed could prevent them from being able to adjust?

TracyTN

That's how I understood it.

Thanks for the post, M.

fatbrit

Precisely! Emphasis on the could. Maybe even raise it to a can, especially if you're living in the 7th Circuit. But it's certainly not a will.

emartin

Anyone who overstays is removable. However, some people can contest that in removal (deportation) proceedings. One basis to contest a removal order is because the foreign national is married to a US citizen and/or has an Adjustment of Status pending.

The problem with VWP entrants is that they sign away their rights to contest a removal order, even if married to a US citizen (unless they claim asylum). Worse - they can be removed without a hearing in immigration court, simply by an order of the local District Director. In theory, a VWP entrant who overstayed could file for permanent residence and be issued a removal order and put in detention when s/he turned up for the marriage interview at the District Office.

StephieFaith83

So what you're saying is, if someone files before 90 days or after it makes no difference?

The emphasis of the original post was on filing after the 90 days has expired which is why I asked the question about if someone was to file before.

Songbird

Quite the opposite. If someone properly files before the 90 day VWP window expires then, although the time taken process that application will take them beyond the 90 days, then from my understanding of it they will be afforded protection 'under the color of the law'. Conversely, if you file when your status has already expired (i.e. outside the 90 days of the VWP) then you run the risk should USCIS chose to pursue it of being removed - married to a USC or not.

crosscountryrider

That's correct. It's also according to what my immigration attorney said.

What they do is simple - they define what you can do during your legal VWP stay. And as per immigration law you maybe will adjust your status as a immediate relative of a USC.

What they didn't clarify is what happens if they find a intent to stay after getting married and file AOS. I believe it's also subject to removal and waiver of your right to appeal.

However if USCIS decide in a individual case not to persue the intent to stay

you will be most likely perfectly fine to file AOS on grounds of marriage to a USC and of course if you have a " good faith marriage " .

I think this is still not clarifying anything about AOS and VWP.

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).

We have dismissed attempts by aliens to take control of their removal proceedings for overstay by pleading fraud (from the court case )


I am not a attorney but that's how I understand the court.

Songbird

While it's true Bayo gained fraudulent entry - in the overall scheme of things that issue (as far as DHS was concerned) wasn't really relevant. Fraud entry via the VWP or not it was more expedient for DHS to process this case as a VWP overstay. As Meauxna explains in her opening post;

"By fixating on the VWP overstay trumping the AOS via a citizen marriage, DHS can remove the alien without the court's interference, under the VWP guidelines."

Had Bayo's case been considered as a fraudulent entry as opposed to a VWP overstay then as I understand it Bayo would have had access to the waiver process based upon hardship grounds to his USC spouse should he be placed in removed proceedings. He was admitted and inspected (albeit with a false passport) and as such the due process of law would have allowed him to remain in the USA pending his hardship waiver adjudication. By treating this as VWP overstay DHS were able to expedite his removal under the VWP regulations.

In entering via the VWP Bayo waived the constitutional rights rights afforded under the 5th and 14th Amendments ( ie due process of the law in this case to challenge removal - as all VWP entrants do ) He never really had a leg to stand on, other than trying to alter the field of battle i.e. contest this as a fraudulent entry - which would have had limited mileage (as you rightly state from the court transcript) in the final analysis it is the government not the alien that determines the grounds of removal.

Game, set and match.

crosscountryrider

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.

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 !

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.

So my assumption is there is still no principle court judgement which bans or alter the existing regulations for AOS from VWP.

BTW I agree entirely with M 's statement that the goverment decides who they let into the country or not.

Most likely nobody who as already shown his criminal intent.

Kind regards
CCR

crosscountryrider

This what also my attorney told when I adjusted. Hence I filed within the 90 days.