Bayo v. Mukasey (7th Cir. 8/1/08)

ROVNER Bauer Coffey

The 7th Cir held that for the VWP waiver to be valid, it must be a "knowing and intelligent waiver," and remanded for DHS to determine whether the French-speaking Petitioner (married to a USC) knew what he was doing.  Accord, Nose v. Att’y Gen., 993 F.2d 75, 79 (5th Cir. 1993).

Reasoning: The Govt argued that as someone not yet admitted, he had no constitutional rights, so no waiver had to be knowing and intelligent: "the government’s position, if correct, would mean that before an alien enters the country, the Constitution does not prevent it from confusing, tricking or coercing that alien into signing a waiver." The CtApp distinguished Eisentrager and Verdugo-Urquidez because those occurred outside the US; and noted that Boumediene suggests that even aliens seeking entry have some constitutional rights. Moreover, the waiver is prospective to a time when the alien clearly has due process rights: "While the government is correct that an alien in detention at a port of entry is not technically within the United States, see Atunnise, 523 F.3d at 838-39, the government’s analysis treats Bayo as though he were still at the border today, instead of within the United States, where he unquestionably enjoys constitutional protections against removal." Govt could have argued that contract principles don't let someone get out of their deal simply by claiming not to speak English; "[b]ut more is required for a valid waiver of constitutional rights than for an enforceable contract. See Pierce v. Atchison Topeka & Santa Fe R.R. Co., 110 F.3d 431, 438 (7th Cir. 1997) (observing that waivers of federal rights cannot be governed solely by contract law)." Govt could have taken the "more moderate stance" that it didn't try to mislead him here; "however, due process would nonetheless require that the government take steps reasonably designed to assure that the waiver is knowing and voluntary." Rejected the floodgates theory, noting that the Fifth Cir held similarly in 1993, without any wave of VWP challenges. Govt argued that Petitioner suffered no harm from signing the VWP, because if he hadn't, he'd have been excluded; but he might also have been admitted through regular channels, and then have become eligible for AOS.  Ultimate holding: "we adopt the view that we assumed in Wigglesworth, and that the Fifth Circuit endorsed in Nose, that waivers of rights under the VWP must be knowing and voluntary."

Whether Petitioner understood the waiver is a question of fact. Govt argued for remand to DHS; Petitioner argued for remand to BIA. CtApp remanded to DHS, giving it leeway to design appropriate procedures to determine whether the waiver was knowing and intelligent. (Note that Govt argued that such hearings need not be adversarial or feel like an IJ hearing.)

Read opinion here: 

Read briefs here: (inc. Govt's supplemental brief, arguing for remand to DHS) 

Comments

Add New Search

Write comment
Name:
Email:	do not notifynotify
Website:
Title:
UBBCode:	-color-aquablackbluefuchsiagraygreenlimemaroonnavyolivepurpleredsilvertealwhiteyellow -size-tinysmallmediumlargehuge
	Please input the anti-spam code that you can read in the image.

Powered by !JoomlaComment 3.12

Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.