Overstayed Visa Waiver married to U.S Citizen

[JimVaPhuong 4,863]

Yea I agree with you in most of what you said bar a couple of things. Momeni filed for adjustment after he had been arrested for overstaying the visa waiver program. Obviously for some reason he came to the attention of ICE and was taken into custody. Had he been able to file before coming to the attention of ICE the outcome may have been different. All of the cases involved people who either came into contact with ICE and tried to adjust, committed some crime that would have resulted in their deportation had they been prosecuted and/or similar. Even with the Freeman case..she was ultimately denied adjustment.

In any event when a minor is held accountable for someone else s actions it does seem that it would be prejudicial. The minor that is brought into the US under the age of 18 illegally does not accrue any unlawful presence time at all. In fact the clock only starts ticking at the age of 18...so why would similar not apply to something signed on behalf of said minor?

The minor doesn't have a choice. Even if they state that they don't wish to enter the US as a child, what about the child that enters at the age of 2 on a Visa waiver and seeks to adjust status? Im just thinking out loud here but I'm sorry I don't think its as clear cut for every case but you wont know until it is tested in the courts.

Thanks for your input.

Momeni didn't challenge the validity of the waiver, which is the defense you proposed. Momeni simply claimed that the AOS petition should have stopped the removal proceedings. I brought up Momeni because it demonstrates the likelihood of any court accepting the case for review or appeal. The case is interesting beyond that because the court stated, unequivocally, that a VWP overstay cannot adjust status without raising a conflict in the law.

The fact that the parent signed the I-94W (which they had the legal authority to do) would not be prejudicial. If the OP had signed it instead then the outcome would have been the same. If nobody had signed it then the OP would not have been admitted, and would not be applying for adjustment of status.

It would be different if the OP, or their legal guardian, had been coerced into signing a document that they were not required to sign, and now that document was being used against them. For example, if the OP or their legal guardian were coerced into signing a statement agreeing that they would never attempt to adjust status, and CBP had the discretion to admit them without forcing them to sign the document, then they would have a valid argument for prejudice. Without the document, they would have been allowed to adjust status. This isn't the OP's situation. Without the I-94W, the OP would not have been admitted to the US. The OP can't claim that the waiver prejudiced their case because their case would not exist without the waiver. In order to show prejudice the petitioner has to prove that the outcome would have been different.

When the OP became an adult they accepted the benefits that came with the decision their parents made, and chose to remain in the United States. They can't now claim not to be subject to the conditions that came with that decision.

[Myopia 93]

Momeni didn't challenge the validity of the waiver, which is the defense you proposed. Momeni simply claimed that the AOS petition should have stopped the removal proceedings. I brought up Momeni because it demonstrates the likelihood of any court accepting the case for review or appeal. The case is interesting beyond that because the court stated, unequivocally, that a VWP overstay cannot adjust status without raising a conflict in the law.

The fact that the parent signed the I-94W (which they had the legal authority to do) would not be prejudicial. If the OP had signed it instead then the outcome would have been the same. If nobody had signed it then the OP would not have been admitted, and would not be applying for adjustment of status.

It would be different if the OP, or their legal guardian, had been coerced into signing a document that they were not required to sign, and now that document was being used against them. For example, if the OP or their legal guardian were coerced into signing a statement agreeing that they would never attempt to adjust status, and CBP had the discretion to admit them without forcing them to sign the document, then they would have a valid argument for prejudice. Without the document, they would have been allowed to adjust status. This isn't the OP's situation. Without the I-94W, the OP would not have been admitted to the US. The OP can't claim that the waiver prejudiced their case because their case would not exist without the waiver. In order to show prejudice the petitioner has to prove that the outcome would have been different.

When the OP became an adult they accepted the benefits that came with the decision their parents made, and chose to remain in the United States. They can't now claim not to be subject to the conditions that came with that decision.

I really appreciate the time that you put into answering me. I know I can probably come off like a pain in the a$$ but I really am just thinking out loud. I still dont see how someone else signing a document in your name makes you responsible. I understand how the waiver works when it comes to appealing but there hasnt been a case that I can find related to a minor that comes into the US on a visa waiver and challenges that signing.

I get what you are saying but my mind refuses to let go of the afore mentioned.

Ahh well. Thanks for clarifying for me. I love the law (ironically) and spent a good chunk of time working in the criminal justice system. Immigration law can be very confusing at times! Again thanks.

[Used to be broken 143]

No to throw a wrench into the discussion, but if someone on the VWP like the OP, got picked up and placed in proceedings or the application itself led to that result would they qualify for cancellation of removal under this memo? Or would it not apply since a VWP applicant has "waived" the right to an appeal or proceedings and not be the people they are talking about here clogging up the court docket?

Or alternately, would the existence of this type of "relief" .. which is a ####### shoot be a reason someone like the OP would voluntarily enter into proceedings to avoid the consequences of the 10 year bar?

http://www.shusterman.com/pdf/alienspendingapplications.pdf

Edited October 28, 2010 by brokenfamily

[Deputy Purple 1,294]

I know I can probably come off like a pain in the a$$ but I really am just thinking out loud. I still dont see how someone else signing a document in your name makes you responsible.

I think maybe I wasn't being clear enough in my attempts to explain how I think I understand it.

Until they are 18 they are not responsible for it. Once they turn 18 they have a choice, leave before 180 days or accept the consequences of your current status which includes the method of entry. Now I don't know if it really includes the method of entry, maybe it doesn't but who wants to be the AOS case that is used to decide that?

When you look at how USCIS handles EWI & False claims of US Citizenship for Mexicans who enter as children it seems they how them accountable for method of entry also. If that's right or wrong is another matter all together.

[Myopia 93]

I think maybe I wasn't being clear enough in my attempts to explain how I think I understand it.

Until they are 18 they are not responsible for it. Once they turn 18 they have a choice, leave before 180 days or accept the consequences of your current status which includes the method of entry. Now I don't know if it really includes the method of entry, maybe it doesn't but who wants to be the AOS case that is used to decide that?

When you look at how USCIS handles EWI & False claims of US Citizenship for Mexicans who enter as children it seems they how them accountable for method of entry also. If that's right or wrong is another matter all together.

Yea thats true! I dont know if anyone would want to be the AOS case to test that but if it came to that then Im just wondering if it could be done.

[Deputy Purple 1,294]

No to throw a wrench into the discussion, but if someone on the VWP like the OP, got picked up and placed in proceedings or the application itself led to that result would they qualify for cancellation of removal under this memo? Or would it not apply since a VWP applicant has "waived" the right to an appeal or proceedings and not be the people they are talking about here clogging up the court docket?

Or alternately, would the existence of this type of "relief" .. which is a ####### shoot be a reason someone like the OP would voluntarily enter into proceedings to avoid the consequences of the 10 year bar?

http://www.shusterman.com/pdf/alienspendingapplications.pdf

I don't see where this would help AOS overstayers as they don't even get the chance to go in front of a judge and that is talking about dismissing Removal Proceeding IN COURT for those who have pending petitions or a path to Adjust Status.

[Harpa Timsah 13,258]

I see a difference between children entering without inspection and a child entering on the VWP. No person can adjust from EWI, but someone CAN adjust from VWP.

I would really like someone to argue this issue on the basis of the fact that immediate relatives of US Citizens are exempt from the overstay penalty. That has not been argued in court as of yet.

[Myopia 93]

No to throw a wrench into the discussion, but if someone on the VWP like the OP, got picked up and placed in proceedings or the application itself led to that result would they qualify for cancellation of removal under this memo? Or would it not apply since a VWP applicant has "waived" the right to an appeal or proceedings and not be the people they are talking about here clogging up the court docket?

Or alternately, would the existence of this type of "relief" .. which is a ####### shoot be a reason someone like the OP would voluntarily enter into proceedings to avoid the consequences of the 10 year bar?

http://www.shusterman.com/pdf/alienspendingapplications.pdf

Oh dont worry about it. I think I took this train to a whole other station a couple of posts ago. As has been discussed on here before that memo wont help those that used the Visa Waiver Program because the VWP in and of itself doesnt allow for any appeals. This memo is directed to those cases that can be adjusted and are under appeal and/or the beneficiary is detained.

Some courts have ruled that, regardless of the AOS, a visa waiver applicant doesn't even have the right to appeal any discretionary decision of the Immigration Officer. VWP applicants do not go in front of a judge. They are deported. Either with an order to depart or by being detained and then deported. There is no opportunity to see a judge to get the case dismissed in the first instance.

I would imagine that there is a conflict with the spirit of the memo and forthwith directive and deporting VWP applicants who are eligible to adjust as an immediate spouse. The problem is there isn't a uniform policy within the UCIS at this time. Its hit and miss so an applicant in Connecticut may find his application approved with no problems where as an applicant in San Diego will find that his case is denied and he will be deported. So how to reconcile a policy with a clear court opinion is hard to imagine happening.

I didnt agree with Jims opinion before but after researching this matter I have to agree that there will be some kind of uniformity when dealing with Visa Waiver Applicants imminently. There has to be as its just too hit and miss.

I think that anyone living in a district that is clearly still allowing these adjustments really needs to file asap. Once congress changes (As Im sure it will) I think you will find immigration enforcement being pushed harder than before and enforcement will include those easy VWP overstay deportations. Thats just my opinion.

[Myopia 93]

I see a difference between children entering without inspection and a child entering on the VWP. No person can adjust from EWI, but someone CAN adjust from VWP.

I would really like someone to argue this issue on the basis of the fact that immediate relatives of US Citizens are exempt from the overstay penalty. That has not been argued in court as of yet.

Yea I agree with you. The problem is with the discretionary power that the IO has. I have thought about this. How would UCIS handle a case of a child that entered on a VWP yet was an immediate relative of a USC. Would they try to deport that child knowing that his deportation would result in him returning as soon as he landed this time on a US passport. I dont think UCIS would do it because it would make no sense. They cant ban a US citizen. Furthermore a child that is out of status in the US does have the ability to circumvent the entire immigration process and simply apply for his US passport using secondary evidence as proof of citizenship rather than the US consulate of birth abroad.

[Deputy Purple 1,294]

Yea I agree with you. The problem is with the discretionary power that the IO has. I have thought about this. How would UCIS handle a case of a child that entered on a VWP yet was an immediate relative of a USC. Would they try to deport that child knowing that his deportation would result in him returning as soon as he landed this time on a US passport. I dont think UCIS would do it because it would make no sense. They cant ban a US citizen. Furthermore a child that is out of status in the US does have the ability to circumvent the entire immigration process and simply apply for his US passport using secondary evidence as proof of citizenship rather than the US consulate of birth abroad.

I would think the I have claim to US Citizenship issue would have been resolved prior to entry.

[JimVaPhuong 4,863]

I really appreciate the time that you put into answering me. I know I can probably come off like a pain in the a$$ but I really am just thinking out loud. I still dont see how someone else signing a document in your name makes you responsible. I understand how the waiver works when it comes to appealing but there hasnt been a case that I can find related to a minor that comes into the US on a visa waiver and challenges that signing.

I get what you are saying but my mind refuses to let go of the afore mentioned.

Ahh well. Thanks for clarifying for me. I love the law (ironically) and spent a good chunk of time working in the criminal justice system. Immigration law can be very confusing at times! Again thanks.

When the minor reaches the age of majority then the minor is allowed to challenge the validity of any agreement made by their parents while they were a minor. This is basic contract law, but some aspects of this law also apply to immigration documents. The courts affirmed this in both Bayo and Bradley, though they conceded that a higher standard applies when denying due process for immigration. A minor would generally be allowed to withdraw from any contract their parents signed on their behalf when they became an adult. At the same time, they would have to give up any benefit the other party was obligated to provide under the contract. Unfortunately, if the OP used this as a basis to have the I-94W canceled then their status in the US would be revoked back to the day the waiver was originally signed. Without a valid I-94W submitted on their behalf, they would have had no basis to legally enter the US, and would not be eligible to adjust status under any condition except asylum. For the OP, the I-94W provides both a fundamental requirement for their eligibility to adjust status - lawful admission to the US - as well as the basis for denying the AOS - the "no contest" clause.

But this is all armchair lawyering. This presumes the OP would get an opportunity to plead their case in front of a judge. I think the odds of this happening are pretty slim.

[Deputy Purple 1,294]

I see a difference between children entering without inspection and a child entering on the VWP. No person can adjust from EWI, but someone CAN adjust from VWP.

I would really like someone to argue this issue on the basis of the fact that immediate relatives of US Citizens are exempt from the overstay penalty. That has not been argued in court as of yet.

I agree about the differences between EWI & VWP, my point was that if a minor who EWIed remains in the US beyond the 18th Birthday + 180 days then are treated as if they EWIed on their 18th birthday. I would imagine that a VWP entrant is treated as if their I-94 expired on their 18th birthday and thus they are a VWP Overstayer, again held accountable for their method of entry if they remain as they are now an adult and choosing to do so.

The USC Immediate relative/Overstay Penalty might be an interesting angle but isn't the isse not as much the overstay as it is the Waiver of Appeal for VWP and the fact that they are deportable once the I-94 expires? Being an immediate relative of a USC doesn't make someone not deportable.

[Myopia 93]

I would think the I have claim to US Citizenship issue would have been resolved prior to entry.

Yes you would think so but that's not always the case.

[Harpa Timsah 13,258]

I agree about the differences between EWI & VWP, my point was that if a minor who EWIed remains in the US beyond the 18th Birthday + 180 days then are treated as if they EWIed on their 18th birthday. I would imagine that a VWP entrant is treated as if their I-94 expired on their 18th birthday and thus they are a VWP Overstayer, again held accountable for their method of entry if they remain as they are now an adult and choosing to do so.

The USC Immediate relative/Overstay Penalty might be an interesting angle but isn't the isse not as much the overstay as it is the Waiver of Appeal for VWP and the fact that they are deportable once the I-94 expires? Being an immediate relative of a USC doesn't make someone not deportable.

Yes, you are right, the issue is the waiver of appeal... but it seems to me that that has BECOME the issue because of the way these court cases have been argued. A VWP entrant CAN adjust status if they are in-status, and more and more, cannot if they are overstayed. I would like to see someone argue that the overstay issue is not applicable to immediate relatives of US Citizens on VWP, because it is not applicable on any other legal entry (I choose my words carefully here, not any other visa, any other legal entry) and that in-status VWP CAN adjust status. I think presenting cases arguing about waiver of rights and being drunk on arrival and having stolen passports and whatnot doesn't address the fundamental underlying issue of benefits to the USC and their family.

[Myopia 93]

Being an immediate relative of a USC doesn't make someone not deportable.

Depends on what type of immediate relative you are. A child of a US Citizen who has a claim to US citizenship through the parent who is in the US without the passport/Birthcertificate could be deported unless they can prove it but any ban would be futile as that child would be entitled to come right back in on a US passport.