Wigglesworth v. I.N.S., No. 02-1209.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtRipple
Citation319 F.3d 951
PartiesYvonne C. WIGGLESWORTH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Docket NumberNo. 02-1209.
Decision Date14 February 2003
319 F.3d 951
Yvonne C. WIGGLESWORTH, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 02-1209.
United States Court of Appeals, Seventh Circuit.
Argued September 17, 2002.
Decided February 14, 2003.

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COPYRIGHT MATERIAL OMITTED

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Scott D. Pollock (argued), Pollock & Associates, Chicago, IL, for Petitioner.

George P. Katsivalis, INS, Chicago, IL, Carl H. McIntyre, Jr. (argued), DOJ, Civ. Div., Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.


Yvonne Wigglesworth last entered the United States pursuant to the Visa Waiver Pilot Program ("VWPP"), which allows visitors from certain countries to enter the United States without a visa for a stay of ninety days or less. See 8 U.S.C. § 1187. The Immigration and Naturalization Service ("INS") instituted deportation proceedings against Ms. Wigglesworth, but later realized that it improvidently had commenced those proceedings because, as a condition of entering under the VWPP, Ms. Wigglesworth had waived her right to a deportation proceeding. The Immigration Judge ("IJ") agreed and granted the INS' motion to terminate the proceedings, a decision that was affirmed by the Board of Immigration Appeals ("BIA"). Ms. Wigglesworth now appeals and seeks an order from this court to reinstate the proceedings and require the INS to process her application for suspension of deportation. For the reasons set forth in the following opinion, we dismiss the appeal.

I
BACKGROUND

A. Facts

Yvonne Wigglesworth was born in Denmark and is a citizen of Sweden. She has resided in the United States since June 3, 1980, with two interruptions. In 1981, she returned to Sweden for a period of approximately one year to serve a seven-month sentence for trafficking in hashish. She returned to the United States in 1982. After her return, she left the United States only once; in 1990, for a period of three weeks, she visited her ailing mother in Sweden.

Prior to her first departure from the United States in 1981, Ms. Wigglesworth married an United States citizen, Charles Wigglesworth. They have one child, Kristina, born in January 1984.

In 1988, Mr. Wigglesworth filed a Petition for Alien Relative (Form I-130) for his wife. The INS approved this petition on January 27, 1989. In 1990, the Wigglesworths went to an immigration consulting agency called "Servicio Continental" to inquire about adjusting Ms. Wigglesworth's immigration status to that of a lawful permanent resident. The agency apparently told Ms. Wigglesworth that, in order to complete the application, she first would need to establish that she had entered the United States legally by obtaining a new I-94 departure record to replace the one that was misplaced after her 1982 reentry. Although it is unclear from the record exactly what was communicated to her, Ms. Wigglesworth was left with the impression that she would be able to reenter the United States without a visa pursuant to the VWPP and thereafter pursue an adjustment of status.

Seeing this situation as an opportunity both to obtain the necessary entry documents

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as well as visit her mother, Ms. Wigglesworth left the United States for Sweden. When she returned to the United States three weeks later, she entered pursuant to the VWPP, which allows visitors from certain countries to enter the United States without a visa and stay for up to ninety days. In order to be admitted under the VWPP, the visitor must waive any right "to contest, other than on the basis of an application for asylum, any action for deportation against the alien." 8 U.S.C. § 1187(b) (1993). Prior to reentering the United States, Ms. Wigglesworth executed a Swedish-language version of form I-790, the Visa Waiver Pilot Program Information Form ("I-790").1 The form contains a section identified as a "WAIVER OF RIGHTS"; it states:

I hereby waive any and all rights to review of or appeal from an Immigration Officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action for deportation. Specifically, I am waiving my rights to 1) a hearing before an Immigration Judge to determine my admissibility or deportability; 2) an administrative appeal to the Board of Immigration Appeals; and 3) the judicial review of any or all of the above decisions.

See INS Submission of October 10, 2002. The form also contains a section entitled "CERTIFICATION," which states in relevant part: "I certify that I have read and understood all the questions and statements on this form." Id.2

B. Administrative Proceedings

After entering the United States pursuant to the VWPP, Ms. Wigglesworth filed an I-485 form to adjust her status to that of a lawful resident alien. The following month, Mr. and Ms. Wigglesworth appeared at the Chicago office of the INS for an interview on the application. The INS denied her application on the ground that she was excludable from the United States as a result of her controlled substance conviction. The INS issued a show-cause order and a notice of hearing. Ms. Wigglesworth appeared pursuant to notice, and the hearing was continued so that she could obtain counsel and apply for suspension of deportation.

In December 1992, Ms. Wigglesworth appeared with her attorney for the hearing, conceded deportability pursuant to the order to show cause and applied for suspension of deportation. After receiving evidence, the IJ took the case under advisement. While the case was pending before the IJ, the INS filed a motion to terminate the proceedings on the basis that "the District Director exercises sole jurisdiction over determinations of deportability in the cases of aliens who were admitted to the United States pursuant to

Page 955

section 217 of the Act," the VWPP. A.R. 402. Prior to the IJ's ruling on its motion, the INS arrested Ms. Wigglesworth at her home in order to deport her. Ms. Wigglesworth then petitioned the IJ for a stay of deportation pending a decision on the motion to terminate. The IJ granted the stay. Apparently on word that the INS would not abide by the stay issued by the IJ, Ms. Wigglesworth also filed a petition for a writ of habeas corpus in district court. The district court granted the petition and ordered the INS to release Ms. Wigglesworth while the administrative proceedings were pending.

On July 15, 1993, the IJ granted the INS' motion to terminate the deportation proceedings as having been commenced improvidently insofar as the VWPP's regulations required a determination of deportability without commencement of a deportation proceeding. Although the IJ acknowledged that he could not reach the question of the constitutionality of the VWPP, he believed that, given the facts of the case, "it would be hard to conclude that the respondent knowingly and intelligently waived her right to a hearing when she last entered." A.R. 136 n. 6.

Ms. Wigglesworth appealed this order, and the BIA affirmed. It stated:

On appeal, the respondent argues that the Immigration Judge erred in finding her ineligible for suspension of deportation based upon her entry pursuant to the Visa Waiver Pilot Program ("VWPP"). We agree with the Immigration Judge that she is ineligible for suspension of deportation based upon her VWPP entry. The Immigration and Nationality Act and the applicable regulations clearly indicate that an alien admitted as a Visa Waiver Pilot Program visitor waives any right to contest any action for deportation, other than on the basis of an application for asylum in the United States as provided in section 208 of the Act.

As the respondent was admitted as a visitor under the VWPP, she waived her right to contest any action for deportation other than asylum. Therefore, we affirm the Immigration Judge's decision finding the adult respondent was barred from applying for suspension of deportation under section 217 of the Act and 8 C.F.R. § 217. Accordingly, we affirm the decision of the Immigration Judge ordering the deportation proceedings terminated.

A.R. 2-3 (footnotes and citations omitted).

Ms. Wigglesworth filed a timely petition for review with this court.

II
ANALYSIS

Before this court, Ms. Wigglesworth requests that we vacate the order of the BIA and remand this case to the IJ to complete the proceedings, including a determination of Ms. Wigglesworth's application for suspension of deportation. The INS argues, however, that we cannot consider Ms. Wigglesworth's petition for review for two reasons: 1) Ms. Wigglesworth waived her right to contest her deportation when she entered the country pursuant to the VWPP; and 2) 8 U.S.C. § 1252(g) precludes judicial review of discretionary decisions to "commence proceedings, adjudicate cases, or execute removal orders." We consider these arguments below.

A. VWPP

1. Waiver of Rights

The VWPP3 allows visitors from certain countries to enter the United States without a visa if they meet certain qualifications, such as the alien possesses a

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"round-trip transportation ticket" and "has been determined not to represent a threat to the welfare, health, safety, or security of the United States." 8 U.S.C. § 1187(a)(5) & (7) (1993). In return for being admitted pursuant to this streamlined procedure, the alien must waive certain rights, see Itaeva v. INS, 314 F.3d 1238, 1239 (10th Cir.2003); specifically the VWPP provides:

(b) Waiver of rights

An alien may not be provided a waiver under the pilot program unless the alien has waived any right —

(1) to review or appeal under this chapter 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 deportation against the alien.

8 U.S.C. § 1187(b) (1993).

Prior to being admitted to this country, Ms. Wigglesworth signed a...

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38 practice notes
  • Ferry v. Gonzales, No. 03-9526.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 8, 2006
    ...that she was not afforded the opportunity to present, or receive a determination concerning, her application for discretionary relief." 319 F.3d 951, 959-60 (7th Cir. 2003). The Seventh Circuit stated that the VWP alien "not only waived her right to a deportation hearing, she also waived an......
  • Bayo v. Napolitano, No. 07-1069.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 20, 2010
    ...knowingly. We have in the past assumed that a VWP waiver is valid only if it was done knowingly and voluntarily. See Wigglesworth v. INS, 319 F.3d 951, 959 (7th Cir. 2003). The government would have us depart from that understanding, substituting a presumption of knowledge for the requireme......
  • Patel v. Barr, CV-20-00229-PHX-DLR (DMF)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • September 9, 2020
    ...the opportunity to present, or receive a determination concerning, her application for discretionary relief.” Wigglesworth v. INS, 319 F.3d 951, 959-60 (7th Cir. 2003). In Wigglesworth, the Seventh Circuit stated that the VWP alien “not only waived her right to a deportation hearing, she al......
  • Albarran v. Wong, No. 15 C 5691
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • January 19, 2016
    ...of specific types of administrative decisions. Id. ; Huss a in v. Keisler , 505 F.3d 779, 783–84 (7th Cir.2007) ; Wigglesworth v. I.N.S. , 319 F.3d 951, 960 (7th Cir.2003) ; Gomez – Chavez v. Perryman , 308 F.3d 796, 800–01 (7th Cir.2002) ; Sharif v. Ashcroft , 280 F.3d 786, 787 (7th Cir.20......
  • Request a trial to view additional results
38 cases
  • Ferry v. Gonzales, No. 03-9526.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 8, 2006
    ...that she was not afforded the opportunity to present, or receive a determination concerning, her application for discretionary relief." 319 F.3d 951, 959-60 (7th Cir. 2003). The Seventh Circuit stated that the VWP alien "not only waived her right to a deportation hearing, she also waived an......
  • Bayo v. Napolitano, No. 07-1069.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 20, 2010
    ...knowingly. We have in the past assumed that a VWP waiver is valid only if it was done knowingly and voluntarily. See Wigglesworth v. INS, 319 F.3d 951, 959 (7th Cir. 2003). The government would have us depart from that understanding, substituting a presumption of knowledge for the requireme......
  • Patel v. Barr, CV-20-00229-PHX-DLR (DMF)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • September 9, 2020
    ...the opportunity to present, or receive a determination concerning, her application for discretionary relief.” Wigglesworth v. INS, 319 F.3d 951, 959-60 (7th Cir. 2003). In Wigglesworth, the Seventh Circuit stated that the VWP alien “not only waived her right to a deportation hearing, she al......
  • Albarran v. Wong, No. 15 C 5691
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • January 19, 2016
    ...of specific types of administrative decisions. Id. ; Huss a in v. Keisler , 505 F.3d 779, 783–84 (7th Cir.2007) ; Wigglesworth v. I.N.S. , 319 F.3d 951, 960 (7th Cir.2003) ; Gomez – Chavez v. Perryman , 308 F.3d 796, 800–01 (7th Cir.2002) ; Sharif v. Ashcroft , 280 F.3d 786, 787 (7th Cir.20......
  • Request a trial to view additional results

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