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Visa Waiver Adjustment Applicants Must Depend On The Kindness Of Strangers

by Jonathan D. Montag

In a decision, the only positive aspect of which is that it is unpublished, the Ninth Circuit Court of Appeals decided that Immigration and Customs Enforcement has the unbridled authority to remove a visa waiver entrant to the United States, even when the entrant has a pending immediate relative adjustment of status application pending with U.S. Citizenship and Immigration Services when he accountered ICE.

In the case, Kenny V. Smith, which can be found at$File/04-57049.PDF, Mr. Kenny had entered the United States under the visa waiver program. A condition of that program was that he not be able to challenge his removal. INA § 217(b). After admission, Mr. Kenny found himself in county jail for activities that were ultimately dismissed and would not have amounted to grounds of inadmissibility anyway. Before coming into ICE custody, Mr. Kenny and his fiancée married and they filed an adjustment of status application. There was overwhelming evidence that his marriage was a bona fide one through wedding planning documents for an upcoming wedding and pre-marriage religious counseling.

Mr. Kenny, after his release from county jail, was taken into ICE custody. He presented documentation showing that he had a pending adjustment of status application and requested that he be released so his adjustment of status application could be adjudicated. ICE insisted on summarily deporting him as a visa waiver overstay.

Mr. Kenny asserted to ICE and then to the District Court in a habeas corpus petition, that he had a right to the adjudication of his adjustment of status application pursuant to INA § 245(c)(4) which specifically allows aliens who enter under the visa waiver program to adjust status through the petition of an immediate relative. He contended that while it may be true that a visa waiver overstay is subject to deportation without recourse under INA § 217(b), a visa waiver overstay has the right to adjust status as well under INA § 245(c)(4), and once the application is filed, he has the right to an adjudication of it according to 8 C.F.R. § 245.6 and INS Operating Instruction 245.2. 

USCIS refused to adjudicate the application while Mr. Kenny was detained. Mr. Kenny argued that the courts have found that when there is a conflict between laws – one requiring deportation and one offering relief from deportation – the relief application must be considered before deportation can occur. Mr. Kenny cited to two cases. One was Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), which required adjudication of an adjustment of status application under INA § 245(i) in conjunction with INA § 212(a)(9)(A)(iii) and 8 C.F.R. § 212.2(e), for an alien otherwise subject to summary deportation under the reinstatement provisions at INA § 241(a)(5). The other was Padilla-Caldera v. Gonzales, No. 04-9573, 2005 U.S. App. LEXIS 22399 (10th Cir. 2005), wherein the 10th Circuit held that an alien has the right to an adjustment of status adjudication under 245(i) notwithstanding a bar to adjustment under 212(a)(9)(C). Mr. Kenny argued that the right to adjudication in his case was more obvious than in the Perez-Gonzalez case because the adjustment of statute at INA § 245(c)(4) explicitly acknowledges the right of a visa waiver entrant to seek adjustment of status even after overstaying.

Mr. Kenny also argued that visa waiver applicants routinely adjust status through USCIS despite every last one of them being subject to summary deportation without the right of review or contest of a decision to remove them under 217(b). ICE does not interfere with these adjudications. Nothing distinguishes Mr. Kenny’s application from the thousands adjudicated each year and allowed to remain with family in the United States.

In a November 3, 2005, memorandum decision, the court concluded that Mr. Kenny could not challenge his removal in federal court by the terms of his visa waiver admission waiving the right to challenge removal under INA § 217(b). The court also held that he could not challenge ICE’s making him unavailable for adjudication of his adjustment application by confining him because under INA § 242(g), he could not contest what the court concluded was a "cause or claim . . . arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." The court also held that it saw no "colorable constitutional violation" in the government’s conduct.

The court grossly overstated the impact of INA § 242(g). The court did not address earlier decisions regarding the scope of INA § 242(g). One decision was INS v. St. Cyr, 533 U.S. 289 (2001), in which the Supreme Court found that INA § 242(g) did not limit habeas authority. Another was Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 485 (U.S. 1999) which explained that INA § 242(g) dealt chiefly with decisions regarding the prosecutorial discretion to put someone in proceedings and whether or not to physically deport them. Finally, the court did not address Ninth Circuit cases such Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir. 2002), which held that INA § 242(g) should be interpreted narrowly, and that the section did not apply to consideration of the underlying merits of a removal decision..

More alarmingly, the court asserted there was no colorable equal protection claim in Mr. Kenny’s case. The court essentially said that ICE did not have to distinguish Mr. Kenny from the nearly 100,000 visitors for business or pleasure that adjust status each year in the United States or the significant number of that 100,000 who entered as visa waiver entrants. Relying on this decision, nothing seems to preclude ICE from instituting a policy of randomly swooping into USCIS waiting rooms and plucking out visa waiver applicants minutes before there interviews and putting them on planes home or insisting that USCIS hand over visa waiver adjustment applicants who filed their applications on Mondays and Wednesdays, but not those who filed on Tuesdays and Thursdays. ICE made no effort to distinguish Mr. Kenny from the thousands of other visa waiver adjustment applicants who are allowed to adjust status and the court was unconcerned about the disparate treatment.

It is wise to keep in mind that, based on the decision in Kenny v. Smith, when a visa waiver entrant files his adjustment of status application, he or she has no protection from summary deportation until he or she finally adjusts status. Until then, he or she is not protected by the statute that allows for adjustment of status, regulations and policy that require adjudications, or a Constitutional protection of equal protection, but rather, he or she, like Blanche DuBois in Streetcar Named Desire, must depend on the kindness of strangers.

About The Author

Jonathan D. Montag practices immigration law at Montag & Nadalin LLP in San Diego, California. He is a graduate of the University of Pennsylvania and the University of San Diego School of Law. He is a past San Diego AILA Chapter Chair, and this year is a member of the National Benefit Center Liaison Committee, the AILA Annual Conference Planning Committee, the AILA National Membership Committee, and the Immigration Today Editorial Advisory Board. He has spoken and published on issues relating to detention and removal. His firm, Montag & Nadalin LLP [] represents clients in all facets of immigration law from business immigration to appellate advocacy. At the Ninth Circuit he represented aliens in many cases including Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir. 2005), Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. April 21, 2005), and Beltran-Tirado v.INS, 213 F.3d 1179 (9th Cir. May 31, 2000). At the BIA he represented the alien in Matter of Blancas-Lara, 23 I. & N. Dec. 458 (BIA June 10, 2002).

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