Questions presented: First, may an alien who is not eligible for the VWP, but who enters using fraudulent documents that trigger use of the VWP, be held to the terms of the VWP waiver? Second, what is the standard for the waiver of the procedural rights that are covered by the VWP? Third, assuming a valid VWP waiver, does an alien who entered under the VWP and then overstayed have an independent right to adjust his status on the basis of marriage to a United States citizen?
The Visa Waiver Pilot Program was established by Congress to determine if a visa waiver provision could facilitate international travel and promote the more effective use of the resources of affected government agencies. Only citizens of VWP countries may participate in the Program, and just 35 countries currently qualify. The VWP operates through a reciprocal waiver arrangement: the United States waives its visa requirement, and in exchange, the visitor waives her right to contest admissibility determinations or removal (except for asylum). VWP entrants are also treated differently, and perhaps more favorably, when they apply for asylum, because they are entitled to bypass the credible-fear process and proceed directly to an IJ. The terms of the VWP were memorialized in Form I-94W, which had to be filled out and signed by all VWP entrants upon their arrival in the United States. It describes the visitor’s waiver of rights, including any rights to review or appeal of an immigration officer’s determination as to admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation. The Form further elaborates on the conditions that apply to the visitor’s sojourn in the United States, including not to accept unauthorized employment or attend school, or represent the foreign information media during the VWP entrant’s visit under this program. The VWP entrant is authorized to stay in the U.S. for 90 days or less, but may not apply for: 1) a change of nonimmigrant status; 2) adjustment of status to temporary or permanent resident, unless eligible under section 201(b) of the INA; or 3) an extension of stay. Violation of these terms will subject the VWP entrant to deportation.
The scope of this court’s review is narrow, but 8 U.S.C. § 1252 confers authority on the courts of appeals to review VWP decisions, among others.
This court must reject the contention of the petitioner from Guinea who entered the U.S. under VWP with a stolen Belgium passport and overstayed the 90-day period that statutory silence on nationals of non-VWP countries infers that the VWP is entirely inapplicable to them, and that he cannot be held to the terms of a VWP waiver that never should have been before him in the first place and must therefore be subject to ordinary removal procedures. Silence might signify something about the scope of a statute, but it equally might highlight an issue that Congress did not anticipate or that it chose to leave open. It is under these circumstances that Congress has implicitly delegated authority to the relevant agency to resolve the issue. The Attorney General appropriately has acted to clarify the scope of the VWP as it pertains to certain abuses of the program, insofar as the VWP regulations address the situation of ineligible aliens entering fraudulently under the VWP. The BIA also has interpreted the regulations to apply to VWP-ineligible aliens.
In assessing the VWP regulations, the first question is whether this court finds the statute ambiguous, and it does. The fact that it says nothing about nationals of non-VWP countries creates the ambiguity that drives both the petitioner’s and the government’s arguments. The VWP regulations answer that ambiguity by applying the terms of the program to those who enter under the VWP, even if they are ineligible for it. This court’s only task under Chevron is to determine whether the Attorney General’s interpretation, as expressed in the VWP regulations, is reasonable. This court finds that it is. There is little reason to think that Congress would have wanted to confer the benefits of the VWP on ineligible aliens while sparing them the costs of entering under the Program. This court says this in full recognition of the fact that applying the terms of the VWP to ineligible aliens may also confer on them the possible benefit in asylum cases of being able to skip the credible-fear interview and proceed directly to an IJ. But the fact that there may be some benefits to the ineligible aliens as well as burdens simply means that the Attorney General had to balance several factors in the course of interpreting the statute. He was entitled, in doing so, to adopt an approach that preserves the government’s ability to remove aliens who fraudulently enter under the VWP just as promptly as it can remove legitimate VWP entrants. This is in line with earlier decisions. This court has dismissed attempts by aliens to take control of their removal proceedings for overstay by pleading fraud. This court has also safeguarded the government’s ability to select the ground on which to remove aliens who are in the U.S. illegally. The government in this case was therefore entitled to select overstay under the terms of the VWP as the ground for removing the petitioner.
Immigration law draws a bright line between an alien who has effected an entry into the United States and one who has never entered. This court acknowledges that those who stand at the threshold of admission are subject to special rules. Where the parties do not dispute that the petitioner has entered the U.S., the “entry fiction” doctrine does not apply to him. Once he crossed the border, the petitioner became entitled to certain constitutional rights, including the right to due process.
If the VWP waiver were a garden-variety contract, the petitioner’s argument that he did not understand it would almost certainly fail. The VWP waiver, however, is no normal contract. It includes a waiver of the right to a full immigration hearing; that waiver implicates both statutory rights and, in the final analysis, the constitutional right to due process. In criminal cases, courts both indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights. The Supreme Court also has established constitutional standards for waivers of constitutional rights in civil cases. While the Supreme Court has consistently classified deportation proceedings as civil rather than criminal, at the same time the Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. This court concludes from this that the waiver standard in immigration cases, while perhaps not quite as strict as the one applicable to criminal cases must reflect the Supreme Court’s recognition of the unique character of this area.
This court has in the past assumed that a VWP waiver is valid only if it was done knowingly and voluntarily. The government would have us depart from that understanding, substituting a presumption of knowledge for the requirement of actual knowledge. But this would have the practical effect of eliminating the knowledge requirement altogether—a path this court declines to follow for a host of reasons. First, this court does not feel free to abandon the presumption against waiver of constitutional rights, nor does this court think that such a step would be advisable. Second, both the concepts of waiver and the presumption of knowledge of the law are ubiquitous in our legal system; defining their interaction so as to eliminate the knowledge requirement for a valid waiver of constitutional rights would change the law in various contexts not at issue here. Third, adopting a standard that rests solely on voluntariness would lead to absurd results, as it would render all waivers of constitutional rights signed without coercion valid, regardless of whether the signatory understood a single word on the page. As amici point out, this would have a particularly detrimental effect on victims of human trafficking, who often come from VWP countries. These aliens frequently enter the country voluntarily (hoping for employment but often finding hard labor or prostitution) and sign whatever forms that their traffickers put in front of them, without understanding the language on the form. Enforcing the terms of the VWP waiver against the victims of human trafficking (when they signed without knowledge) would prevent them from accessing T and U visas. To render these provisions inoperative in this way would contravene congressional intent to provide relief to those who have been trafficked. In sum, this court declines to pursue such a radical departure from established law.
The only other circuit that has considered this issue, the Fifth Circuit, came to the same conclusion. The government’s contention that were this court to adopt the approach of assuming that a VWP waiver is valid only if it was done knowingly and voluntarily it would raise the specter of endless litigation is without merit. The government has failed to produce any evidence that this standard has proven unworkable in the Fifth Circuit. This is not for want of time to test the standard, which has been around for more than 15 years. Nor is it because the Fifth Circuit lacks experience with immigration, as Houston is a large port of entry and Texas is a popular destination for nonresident nonimmigrants. Perhaps most telling is the fact that the Fifth Circuit itself has not found it necessary to change its standard in response to overwhelming litigation or other concerns. This court therefore holds that an alien’s waiver through the VWP of the due process rights to which he or she would otherwise be entitled must be done both knowingly and voluntarily. That said, there are a few additional points that must be clarified. Just as this court is not inclined to endorse a sea change in the law of waiver, it also does not wish to disturb the understanding that the government is entitled to assume that people know the law. That means, importantly, that immigration officials are under no obligation to provide any form of legal advice to incoming immigrants. This court also expresses no opinion on the procedures the government should adopt in order to ensure that waivers of constitutional rights occur knowingly and voluntarily with respect to language proficiency. Going forward, it seems likely to this court that this problem has largely been solved, as the ESTA website allows the traveler to select for the VWP waiver one of 21 languages, presumably those that are spoken in the 35 VWP countries. For a person already here who did not have the ESTA available to her, there are a variety of methods that could be used to adjudicate a claim contesting the knowing and voluntary nature of her waiver, and it is not this court’s role to prescribe any particular system. This court trusts the executive branch to devise a system that fulfills the goals of fairness, efficiency, and security.
The dicta in The Japanese Immigrant Case, 189 U.S. 86 (1903) is inapplicable to the instant case where the petitioner from Guinea entered the U.S. under VWP with a stolen Belgium passport and overstayed the 90-day period. First, unlike The Japanese Immigrant Case, this court has jurisdiction to review the petitioner’s final orders of removal and the government does not dispute this. Second, the alien in Japanese Immigrant was asserting that her lack of knowledge of English (and her other disabilities) entitled her to a broader scope of judicial review than the statute afforded. The petitioner in the instant case is not claiming that his asserted lack of command of the English language alters the scope of judicial review. Instead, the question is whether he may raise certain arguments in a proceeding authorized by the governing statute. Properly in court, he is entitled to raise as one of his arguments whether, for any reason (including but not limited to language problems) his VWP waiver was unknowing and therefore invalid. Finally, the government also does not allege that the petitioner has failed to exhaust other available remedies provided by the executive branch. Based on these distinctions, The Japanese Immigrant Case is therefore inapplicable in the instant case.
To warrant a new immigration hearing on a due process claim, an alien must establish that she was prejudiced, that is, that the error likely affected the result of the proceedings. Inability to show prejudice is where the petitioner’s case founders. Had he known what the waiver said, the petitioner would have had two options, either of which would have led to summary removal. If he had signed the waiver anyway, knowing full well what it said, he would be in the same situation as he is now. If he had refused to sign, he would have been removed summarily at the border because he did not have a proper visa. Perhaps there is a slight chance that after removal, the petitioner could have obtained a visa to come to the United States, and then he might have settled in Indiana, met his wife, and married her, allowing him to adjust his status based on marriage at that time. As the petitioner admits in his brief though, it is difficult to compare what might have been with what is. This is true, and it is the reason why this court finds the explanation of how the petitioner might have been harmed too speculative to support a showing of prejudice. This
dooms the petitioner’s language proficiency argument as a basis for his petition.
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, this court believes 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 her 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. The petitioner 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 court therefore denies the petition for review.
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