Bayo v. Napolitano

• Citation: 593 F.3d 495
• Decision Date: 20 January 2010
• Docket Number: No. 07-1069.,07-1069.
• Parties: Mohammed BAYO, Petitioner-Appellant, v. Janet A. NAPOLITANO, Secretary of Homeland Security, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

593 F.3d 495

Mohammed BAYO, Petitioner-Appellant, v. Janet A. NAPOLITANO, Secretary of Homeland Security, Respondent-Appellee.

No. 07-1069.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 2009.

Decided January 20, 2010.

Laureen R. Anderson (argued), Stanley J. Horn, Attorney, Horn, Khalaf, Abuzir, Mitchell, & Schmidt, Chicago, IL, for Petitioner-Appellant.

Walter M. Evans, Attorney (argued), Department of Justice, Washington, DC, Stephen W. Manning, Attorney, Immigrant Law Group LLP, Portland, OR, Geoffrey Heeren, Attorney, Legal Assistance Foundation of Metropolitan Chicago, Chicago, IL, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and BAUER, POSNER, COFFEY, FLAUM, KANNE, ROVNER, WOOD, EVANS, WILLIAMS, SYKES, and TINDER, Circuit Judges.^*

WOOD, Circuit Judge.

Mohammed Bayo is not the most sympathetic of litigants. He is a citizen of Guinea, but he stole a Belgian passport and used it to enter the United States fraudulently. Why, one might ask, would he go to the trouble of doing this? Guineans are entitled to visit the United States, provided they observe the required formalities. But Guinea is not one of the 35 countries that comes within the State Department's Visa Waiver Program ("VWP"); Belgium is. See Visa Waiver Program (VWP) http://www.travel.state.gov/visa/temp/ without/without_1990.html#countries (last visited Jan. 15, 2010). Bayo's ploy enabled him to enter with a minimum of bureaucratic fuss and then to evade detection for more than four years.

His luck ran out only when he pushed it by petitioning for adjustment of status based on his marriage to an American citizen. The government knew that someone had entered with the illegal Belgian passport, and Bayo's petition enabled it to connect that passport to him. At that point, the Department of Homeland Security ("DHS") promptly processed his removal without a hearing, as it normally would with any legitimate VWP participant who overstays his visit. Summary procedures are the quid pro quo for the United States government's waiver of the normal visa requirements. Bayo's waiver was memorialized in the Form I-94W ("VWP waiver") that he signed upon his arrival in the United States. The wrinkle is that the form was in English, and Bayo asserts that he speaks only French.

Before us is Bayo's petition for review of DHS's administrative order of removal. See 8 U.S.C. § 1252(a)(1). Bayo offers three reasons why we should grant the petition and remand the case for plenary removal proceedings before an immigration judge ("IJ"). (The advantage of such proceedings is that he would be able, in principle, to seek relief from removal in them; such relief is not available in the summary VWP process.) First, Bayo contends that the VWP waiver he signed is void ab initio, because he is a Guinean citizen and the program cannot be applied in any way to citizens of non-VWP countries. Second, he argues that his lack of English proficiency renders invalid the particular waiver he signed, as he did not know what he was signing, and (in his view) his waiver must be assessed according to the familiar knowing-and-voluntary standard that applies to constitutional rights. Third, he asserts that even if the waiver is valid, he should nevertheless be permitted to pursue his adjustment-of-status application. Although there is merit in some of his points, in the end we conclude that he cannot demonstrate prejudice from the errors that occurred here. We therefore deny his petition for review.

I

A

"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. . . ." Visa Waiver Pilot Program, 53 Fed.Reg. 24,898, 24,898 (June 30, 1988). Only citizens of VWP countries may participate in the Program, and just 35 countries currently qualify. See 8 C.F.R. § 217.2(a). 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). See 8 U.S.C. § 1187(a), (b). 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. See 8 C.F.R. § 217.4(b). Bayo has not argued that he would be entitled to asylum, and so we have no need to discuss that possibility further.

At the time of Bayo's entry, 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 as follows:

WAIVER OF RIGHTS: I hereby waive any rights to review or appeal of an immigration officer's determination as to my 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:

WARNING: You may not accept unauthorized employment; or attend school; or represent the foreign information media during your visit under this program. You are authorized to stay in the U.S. for 90 days or less. You 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 you to deportation.

In response to the Implementing Recommendations of the 9/11 Commission Act of 2007, Pub.L. No. 110-53, 121 Stat. 266, the DHS recently implemented the new Electronic System for Travel Authorization ("ESTA"), which requires visitors to fill out the I-94W form online in advance of travel to the United States. See The Electronic System for Travel Authorization: Mandatory Compliance Required for Travel Under the Visa Waiver Program, 73 Fed.Reg. 67,354 (Nov. 13, 2008). The I-94W form is now offered in 21 different languages on the ESTA website. See Welcome to ESTA, https://esta.cbp. dhs.gov (last visited Jan. 15, 2010).

B

As we noted at the outset, Bayo is a native and citizen of Guinea, and Guinea is not a VWP country. Belgium is, however, and Bayo acquired a stolen passport from that country that enabled him to enter the United States without a proper visa on July 12, 2002. Upon arrival at Newark Airport, Bayo signed an English-language Form I-94W, even though he asserts that he neither speaks nor reads English. Bayo overstayed the 90 days to which an ordinary VWP traveler is entitled and eventually settled in Indianapolis, Indiana, where he met Tatiana Sia, a United States citizen. On April 21, 2006, he married her. He then sought an adjustment of status to legal permanent resident status based on that marriage.

On September 26, 2006, Immigration and Customs Enforcement ("ICE") received information from the National Security Investigation Division, Compliance Enforcement Unit that Bayo had entered the United States illegally under a Belgian passport. Cross-referencing this information with its immigration files enabled ICE to locate Bayo's pending I-130 and I-485 applications for lawful permanent residence status based on marriage. ICE officers visited Bayo's home on November 20 2006, and questioned him about his immigration status. He freely admitted to using the stolen passport and turned it over. The DHS then promptly ordered Bayo's removal, selecting as the basis for its action Bayo's overstay under the VWP. (Fraud was another potential removal ground.) In accordance with the terms of the I-94W form that he signed, Bayo received no removal hearing.

II

As a preliminary matter, we must briefly discuss our authority to act in this case, as the VWP waiver Bayo signed might be read to preclude judicial review. The first two issues that Bayo raises challenge the fundamental validity of the VWP waiver itself; his third point concerns a potential exception to the waiver. The scope of our review is narrow, but 8 U.S.C. § 1252 confers authority on the courts of appeals to review VWP decisions, among others. (Other mechanisms, including notably habeas corpus, are no longer open to persons resisting VWP removal orders. See 8 U.S.C. § 1252(a)(5).) At a minimum, we may consider whether the statutory criteria on which the VWP rests have been met. Compare Morales-Morales v. Ashcroft, 384 F.3d 418, 421 (7th Cir.2004) (court has jurisdiction to determine whether a particular alien's claim falls within the scope of a jurisdiction-stripping statute); see generally United States v. Ruiz, 536 U.S. 622, 627, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) ("[I]t is familiar law that a federal court always has jurisdiction to determine its own jurisdiction."). The predicate questions we may look at here include whether Bayo's VWP waiver is valid and whether he may invoke a valid exception to his waiver. We may not consider more generally whether Bayo might be entitled to stay in the country on some other ground, such as, for example, by adjusting his status based on his marriage.

These limitations define our inquiry in this appeal. Three questions are properly before us: 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; and 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?

A

In their original briefs, the parties did not address the question whether Bayo's VWP waiver is void because he is not a citizen of a VWP country. Because we thought that this question was potentially dispositive of the case, we requested...