Monday, June 15, 2009

Novas (not precedential): Due Process Problems With Visa Waiver Pilot Program Removal Go Directly To Circuit Courts

Novas v. ICE
No. 07-2218
Not Precedential
December 18, 2008
http://www.ca3.uscourts.gov/opinarch/072218np.pdf

Judges Fuents, Hardiman, and Garth. Opinion by Judge Fuentes.

Under the Visa Waiver Pilot Program (VWPP), someone who agrees to enter under the program can be deported after overstaying the permitted 90-day visit without any right to contest the deportation other than by applying for asylum.

It gets complicated if the person overstaying marries a US citizen, which means there is a direct opportunity to obtain LPR status. But what happens if ICE tries to deport the person under the VWPP provisions before USCIS can grant LPR status?

The Third Circuit ruled that the proper avenue to address problems with removal would be a Constitutional challenge in a petition for review that you would file directly with the circuit court, not by filing a habeas action in district court. So, the Third Circuit has opened up petitions for review for direct challenges to removal orders under the VWPP program -- orders that do not come from an immigration judge because most VWPP individuals never get to see an IJ.

In this case, the Third Circuit also noted in dicta that it saw no due process violation of applying the VWPP restrictions to someone who signed the VWPP waiver when he was a minor.

If ICE enters a removal order under the Visa Waiver Pilot Program without offering a day in immigration court, file an immediate petition for review to the Third Circuit.

For Mr. Novas, Ysabel Williams of Mount Pocono, PA. For the government, Daryl F. Bloom of the US Attorney's Office in Harrisburg, PA.

3 Comments:

Blogger YW said...

I just came across this post. I just wanted to add that I had to file an emergency Habeas Corpus petition in federal district court because my client was being transferred to the airport by ICE without due process. Prior to this case, there was no avenue and no precedent to challenge Visa Waiver deportation cases. I am glad that the 3d Cir. at least opened the door to future challenges of these cases. Mr. Novas and his wife separated during the pendency of the case.

1:25 PM  
Blogger Rex said...

Great work on the Novas case and it's good the Third Circuit created some way for courts to review what ICE does -- for example, in case ICE violates due process while deporting someone.

7:34 AM  
Blogger YW said...

Thanks, that means a lot to me. Who are you?

5:43 PM  

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