Songbird

I'm not an attorney either - and the best that I can do is offer my opinion (based on the courts written and oral transcript of the hearing) fwiw
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.


I agree, it is not a definitive ruling nor interpretation as such however, the specific references in the summation are quite clear and emphatic re: the 90 day window (albeit for that case) The cites to other decisions in 4 other circuits affirming this would seem to indicate that VWP entrants seeking AOS outside of the 90 day expiry - should be aware of the possible risks they face and seek qualified legal advice at the earliest possible stage.

AOS from VWP is not illegal, and I have yet to read anywhere on this board where it is stated otherwise. However, while that is the case it would be wrong to ignore the very real dangers that some people (specifically those on the VWP whose status has expired ) could possibly be faced with when they apply for AOS. From my (albeit limited) understanding, of the decision in this case and others cited, should DHS wish to pursue a removal - the overstay was grounds enough for denial. Obviously, these are particular cases in particular court circuits - and as such the extent to which those decisions can be generalized is unclear. However, five out of 11 circuits have addressed this question from one aspect or another and found in favor of the DHS. That alone would suggest to me that anyone pursuing this path should at the very least err on the side of caution, submit within the 90 day window and engage a qualified attorney to oversee their case.

How many court decisions would you like? In the recent period we have had 5 courts, in 5 circuits address this question in one form or another. True they are not precedential - they are however noteworthy enough to give considerable pause for thought. Which as I understand it is the whole purpose of this discussion being initiated. We are not lawyers, we do not claim to understand the ins and outs of the court system, or the laws/regulations that govern it. At best alls we can do is offer up for discussion the bits we *think* we understand. If our assumptions/ suppositions/ understanding is wrong - then at the very least a discussion of this nature will redress that balance. In the process hopefully we will all acquire more knowledge

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

emartin

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.

Thanks!

Songbird

While I agree it doesn't 'change the law' - imho it does give us some indication of how that law can/ has been interpreted (and accepted by the courts) should DHS opt to pursue similar cases. In that context, would you agree that anyone seeking AOS via a VWP entry should ideally do this in the 90 day window, thereby limiting the risk of their possible removal?

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?

S Folinsky

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. 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.

Rete

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.

S Folinsky

Concur. In such cases, the danger is at the POE. If person is turned around, then marriage plans will have to change.

S Folinsky

Another interesting case: Lee v USCIS. This case does not involve a VWP admission -- Mr. Lee is entitled to a hearing before an Immigration Judge if and when DHS initiates proceedings. It should be noted that Mr. Lee raises a "legal" issue rather than a "discretionary" issue. The court notes the provisions of law that preclude review of AOS applications and then the exception for review of Constitutional or legal errors. So, if a VWP applies for AOS and it goes wrong, at best, there may be a quite limited judical review.

meauxna

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.

Mick1935

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"

tonrob

A good point well made.

S Folinsky

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.

Songbird

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.

fatbrit

Broadgate v. USCIS is interesting and current. It's an attempt to nullify a USCIS memo through district court -- and it failed!

S Folinsky

I am consulting on a case arising from San Diego where the alien was a VW from Germany who had made a bona fide asylum claim. DHS claims that his application is "squarely foreclosed" Momeni. They also note a case called Bradley which shows that Momeni is applied nationwide. This argument is made counter to the argument that in a case called Momeni v Ashcroft the following statement was made:

"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.

ironporer

But of course nobody with existing plans to marry while on a VWP stay would ever try to adjust their status, as that would be illegal. This would still only apply to those married on the spur of the moment...married with enough time remaining on their VWP stay to file the AOS papers.