Freeman v. Gonzales

• Decision Date: 21 April 2006
• Docket Number: No. 04-35797.,04-35797.
• Citation: 444 F.3d 1031
• Parties: Carla FREEMAN, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1031

444 F.3d 1031

Carla FREEMAN, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General, Respondent-Appellee.

No. 04-35797.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2005.

April 21, 2006.

Brent W. Renison and Michael J. Millender, Tonkon Torp, LLP, Portland, OR, for the petitioner-appellant.

Kenneth C. Bauman, Assistant United States Attorney, Portland, OR, for the respondent-appellee.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, Senior Judge, Presiding.

Before: FISHER, GOULD and BEA, Circuit Judges.

FISHER, Circuit Judge:

This appeal concerns the fate of a young alien widow who seeks to remain in the United States notwithstanding that her citizen husband, to whom she was married for only a short time, tragically died in a car accident and, according to the government, thereby "stripped" her of her status as his "spouse." Complicating the widow's appeal is the fact that although she (along with her citizen spouse) had petitioned to adjust her status to that of lawful permanent resident, she entered the United States under the terms of a special visa waiver program that limited her to a 90-day visitor's stay in this country and required her to waive her rights to contest the government's decision to remove her. She now asks us, not to grant her lawful permanent resident status—something we cannot do—but rather, to determine whether she remains a "spouse" who can qualify for such status.

I. Background

Carla Freeman (Mrs. Freeman), a dual citizen of South Africa and Italy, met Robert Freeman, a United States citizen, while she was temporarily working in the United States as an au pair. The Freemans became engaged and thereafter were married near Chicago, Illinois in February 2001. Shortly after the marriage, Mrs. Freeman went back to South Africa. She returned to the United States in June 2001 under the terms of a special visa waiver program (VWP) granting her a 90-day visitor's stay in this country.¹ In September 2001, before Mrs. Freeman's 90-day visa waiver expired, Mr. Freeman filed a Petition for Immediate Relative (Form I-130) attesting to the fact of their marriage and his wife's current status as a VWP entrant. The same day, Mrs. Freeman filed an Application to Register Permanent Resident or Adjust Status (Form I-485).² The filing of these forms initiated the formal process for adjusting Mrs. Freeman's status to that of a lawful permanent resident (LPR), a status granted to the non-citizen spouses of U.S. citizens. Concurrently with the filing of the I-130 and I-485 forms, the Immigration and Naturalization Service (INS) granted Mrs. Freeman a work authorization, effectively treating her as no longer simply a visitor subject to the 90-day limitation of the VWP.³

While their application was pending, Robert Freeman was tragically killed in a car accident shortly before the Freemans' first wedding anniversary. Subsequently, when the Department of Homeland Security (DHS) finally reviewed her application in May 2004, the district director for the U.S. Citizenship and Immigration Services ruled that Mrs. Freeman, now a widow, no longer qualified for an adjustment of status because she was not a "spouse" for purposes of the Immigration and Nationality Act (INA), her husband's death having occurred before they had been married for two years. Further, the director ruled that Mrs. Freeman, as a VWP entrant subject to the program's no-contest clause (see n. 1, supra), had waived any right to renew her adjustment of status application or obtain review of his decision by an immigration judge. He ordered her to leave the United States because her VWP authorization had expired.

Mrs. Freeman petitioned for a writ of habeas corpus in the federal district court, challenging the district director's determinations that she was no longer a spouse entitled to adjustment of status and that she had waived any review of the director's ruling. The district court denied her habeas petition. Mrs. Freeman timely filed a notice of appeal to this court, but has since returned to South Africa where she remains subject to 8 U.S.C. §§ 1227 and 1182(a)(9), which prohibit her from reentering the United States for 10 years from the date of her departure.⁴

Mrs. Freeman's appeal raises two questions, both requiring us to interpret statutory language to resolve matters of first impression in this circuit. The first concerns the scope and applicability of the Visa Waiver Program's no-contest clause, and the second concerns the proper definition of "spouse" for purposes of adjustment of status under the immigration laws. We hold that once a VWP entrant files an adjustment of status application as an immediate relative, as contemplated by 8 U.S.C. § 1255(c)(4), the alien is entitled to the procedural guarantees of the adjustment of status regime, see 8 C.F.R. § 245.2, and to that extent is no longer subject to the Visa Waiver Program's no-contest clause. We further hold that an alien widow whose citizen spouse filed the necessary immediate relative petition form but died within two years of the qualifying marriage nonetheless remains a spouse for purposes of 8 U.S.C. § 1151(b)(2)(A)(i), and is entitled to be treated as such when DHS adjudicates her adjustment of status application.⁵

II. Visa Waiver Program

A. The VWP Regime

The Visa Waiver Program authorizes the government to waive visa requirements for citizens of certain favored countries. See 8 U.S.C. § 1187.⁶ Under the terms of the VWP, as a condition of entering the United States without a visa, Mrs. Freeman had to leave within 90 days and, under the no-contest clause, agree to waive any right:

(1) to review or appeal under [the INA] of an immigration officer's determination as to the admissibility of the alien at the port of entry into the United States, or (2) to contest, other than on the basis of an application for asylum, any action for removal of the alien.

§ 1187(b). We have described the no-contest clause as "the linchpin of the [Visa Waiver] program," which "assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede [her] removal if [s]he overstays." Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir.2005). Notwithstanding that the no-contest clause severely restricts an alien's ability to seek review of a removal decision, the alien may still claim that she is not subject to the VWP procedures at all or that the law requires that she be brought before an immigration judge (IJ) prior to removal. See id. at 1133.

Although the no-contest clause was designed generally to limit the rights of alien visitors and prevent them from challenging their removal, the INA does not entirely preclude such visitors from seeking to extend their stay. Specifically, § 1255(c)(4) provides that a VWP visitor may seek to adjust her status to that of a permanent resident through an immediate relative petition, the procedure invoked by the Freemans. See Faruqi v. Dep't of Homeland Security, 360 F.3d 985, 986-87 (9th Cir. 2004) (noting that VWP visitors are eligible "for adjustment of status ... on the basis of either (1) an immediate relative petition or (2) an application for asylum."); see also 8 C.F.R. § 245.1(b)(8). Once an adjustment of status application is filed, certain procedural safeguards are in place to ensure fair adjudication of the application. See generally 8 C.F.R. § 245.

Mrs. Freeman argues that once she (and her husband) initiated the adjustment of status process by filing the necessary forms, her right to remain in the United States and to challenge any adverse decision became subject to the procedural protections governing adjustment of status applications. Accordingly, the district director erred in applying the VWP no-contest proviso to her in denying her adjustment of status application. The government, however, insists that the VWP no-contest proviso remains in force and precludes Mrs. Freeman from challenging her removal order and the district director's determination that she is no longer a qualifying spouse. It argues that only asylum seekers are exempted from the no-contest clause under the express terms of § 1187(b)(2), and Mrs. Freeman is not seeking asylum.⁷

We think the government's position ignores the interplay between the adjustment of status regime and the visa waiver program, which explicitly allows VWP visitors to file an adjustment of status application pursuant to an immediate relative petition. See § 1255(c)(4). As we shall explain, the text and purpose of this complex statute, along with DHS's action in Mrs. Freeman's case, persuade us that once a VWP visitor properly files an adjustment of status application, the VWP no-contest clause does not deprive the visitor-applicant of the procedural guarantees afforded any applicant seeking adjustment of status. See 8 C.F.R. § 245.2.

B. The Right to Adjust Status

Section 1255 explains that certain classes of non-immigrants may petition the Attorney General for adjustment of status to that of a lawful permanent resident, provided that "(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to [her] at the time [her] application is filed." § 1255(a). Included in the class of non-immigrants who may petition for LPR status are VWP entrants, but only those who seek adjustment pursuant to an immediate relative petition. § 1255(c)(4).⁸ Under the regulatory regime associated with adjustment of status, alien applicants are afforded various procedural benefits. Among these benefits, an applicant "retains the right to renew his or her application" if it has been denied. 8 C.F.R. § 245.2(a)(5). If the adjustment of status application is renewed after removal proceedings have...