Bayo v. Holder (7th Cir. Jan. 20, 2010)
WOOD (7th Cir en banc) (no dissents or concurrences)
Bayo entered on the Visa Waiver Program (VWP), using a fake passport - he's from Guinea, and doesn't speak English. He later married a USC, and tried to adjust; but was denied. He argued that fake VWP entrants can't be removed under the VWP; that his waiver of rights under the VWP wasn't knowing and intelligent; and that he is in any event eligible for adjustment.
1. The CtApp found jurisdiction to consider whether the VWP order stripped the Court of jurisdiction. It did not cite 1252(a)(2)(D), relying on older and different case law establishing a Court's power to determine its own jurisdiction. That analysis would seem sufficient to permit review of whether the VWP order was valid; but perhaps not whether one could nonetheless adjust status.
2. Fake VWP entrants can be removed under the VWP. The CtApp found the statute silent on the point; and found that silence to create an ambiguity. It then asked whether the agency's regulations (which permit non-VWP-eligible people to be removed under the VWP) were reasonable. ("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.") The fact that the agency's interpretation of the VWP means that such individuals need not pass credible fear interviews before applying for asylum was not dispositive. AG could adopt regs which would permit expeditious removal of fake VWP entrants, even at the costs of giving some extra rights to some.
3. A VWP waiver must be knowing and intelligent, but Bayo cannot show prejudice.
a. In Bayo I (Bayo v. Chertoff, 535 F.3d 749 (7th Cir. 2008)), it was held that Bayo had constitutional rights at the time of his entry, citing Boumediene v. Bush, 128 S. Ct. 2229 (2008). Said the Court, "Boumediene suggests that Bayo, as an alien technically outside the country’s border when he submitted his waiver to border agents, enjoyed some constitutional protections against arbitrary government action." In Bayo II, the Court dodged that question, noting that neither party disputes that Bayo did in fact make an entry into the U.S. - as such, he has due process rights.
b. A waiver of rights under the VWP must be knowing and intelligent.
The government argues that Bayo waived these rights by signing the VWP form, but Bayo counters that the waiver he signed is invalid because he did not understand it. If the VWP waiver were a garden-variety contract, Bayo’s argument 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.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (internal quotation marks omitted). The Supreme Court also has established constitutional standards for waivers of constitutional rights in civil cases. See Fuentes v. Shevin, 407 U.S. 67, 94 n.31 (1972).... While the Supreme Court has consistently classified deportation proceedings as civil rather than criminal, e.g. Harisiades v. Shaughnessy, 342 U.S. 580, 594 (1952), 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.” Woodby v. INS, 385 U.S. 276, 285 (1966). We conclude from this that the waiver standard in immigration cases, while perhaps not quite as strict as the one applicable to criminal cases, see Johnson v. Zerbst, must reflect the Supreme Court’s recognition of the unique character of this area.
c. The CtApp rejected the Govt's argument for a "presumption" of knowledge rather than a requirement of actual knowledge. The CtApp held that this would, practically speaking, eliminate the requirement of knowledge altogether. The CtApp said it would be inconsistent with case law creating presumptions against waiver of constitutional rights. It would change the law other contexts where waivers are requirements, and would be absurd. Moreover, the CtApp noted that it would quite possibly be particularly harmful to women who have been trafficked into the country, many of whom come from VWP countries.
d. The CtApp noted that the 5th cir's decision in Nose v. Attorney Gen. of United States, 993 F.2d 75, 78-79 (5th Cir. 1993) hadn't created a massive amount of litigation there.
e. The CtApp noted in passing that it was not requiring that ICE actually explain the waiver to people, and did not seek to tell the Govt what it should do to ensure that non-English speakers understand the waiver. The CtApp noted that the new ESTA program advises people in various languages, and might help resolve the problem. The CtApp said that it "trust[s] the executive branch to devise a system that fulfills the goals of fairness, efficiency, and security."
f. The CtApp distinguished The Japanese Immigrant Case, 189 U.S. 86, 101-02 (1903), because this case doesn't involve any increase in federal court jurisdiction on account of language.
4. However, to succeed under Due Process, one must show prejudice. Here, Bayo can't show prejudice because if he had refused to sign the VWP waiver, he would simply have been summarily removed. It is possible that he would have entered by some other means, and thereafter met and married his wife; but that is too speculative.
5. The next question is whether there's a conflict between INA 245(c) - which bars VWP visa overstays from adjusting, except for immediate relatives - and the VWP waiver provisions. The CtApp resolved the apparent ambiguity by interpreting 245(c)(4) to apply only where someone applies for adjustment of status before falling out of VWP status, and thereafter awaits adjudication of the Adjustment application. That conclusion - wrong as it is - is the unanimous view of the 6 other CtApps to consider the issue. 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).