Bradley (pending): Stay of Removal Issued on Visa Waiver Program Adjustment

Kirk Semple wrote an article for the New York Times on November 20, 2008 titled A Residency Dream, Now a Nightmare, that reports that the Third Circuit granted a stay of removal while it hears an the appeal of Mr. Bradley.

The reporter talked to Mr. Bradley's lawyer Harry Asatrian, who explained that Mr. Bradley entered on the visa waiver program and overstayed, marrying a United States citizen. He then applied for legal permanent residence in New Jersey and twice asked to reschedule the USCIS interview due to work conflicts. The second time, USCIS refused to postpone the interview and on July 5, 2008, USCIS denied the application.

Mr. Bradley filed an administrative appeal (probably to the AAO) on June 24, 2008.

Rather than let the appeal play out, ICE swooped in and arrested/detained Mr. Bradley on October 8, 2008.

There are a few issues involved:

• Is the waiver of removal proceedings by those who enter on the visa waiver program valid if the immigrant was so jet-lagged and groggy at the airport that it was not a knowing and voluntary waiver? (There is some basis to think the answer is that it would not be valid if the manner in which it was signed can be proven.)
• Can the entrant even raise this issue to any court? The government is arguing that the Third Circuit is not even allowed to listen to this issue because the disputed waiver is a complete waiver that eliminates any constitutional claims. (The government's argument as portrayed in the article does not make much sense -- it assumes that the disputed waiver is valid in arguing that no constitutional claim exists. But the issue of whether the disputed waiver is valid is the point of the appeal.)
• Can the entrant introduce evidence beyond the signed piece of paper about how the waiver was signed and obtained? Stephen F. Day, OIL counsel on the case, argues that the form is the prima facie evidence. (The question is whether the prima facie evidence is open to rebuttal through other evidence -- I don't see why not. If it's open to rebuttal through other evidence, OIL's argument should not succeed.)

On November 10, 2008, the Third Circuit issued a stay of removal. In the meantime, ICE released Mr. Bradley from detention while the appeal is pending, so Mr. Bradley experienced five weeks in the immigration detention center in Elizabeth, NJ, that is run by CCA. (The article did not mention the conditions in detention centers, such as plexiglass barriers when meeting family and fairly open living and bathroom facilities. A glimpse of those conditions was portrayed in the film The Visitor.) It would be interesting at the end of the case to look back on whether detaining Mr. Bradley was a wise use of taxpayer funds.

In the meantime, there is always a possibility that the case could be settled -- if USCIS just lets Mr. Bradley pay again and file a second adjustment application (rather than trying to get the first one reopened), maybe he can get his chance to prove whether he deserves legal permanent residence status and make the whole appeal moot. Although the issue could recur if ICE decides to detain more people who sign visa waiver forms after long international flights.

Update: the Third Circuit issued a decision in Bradley v. Holder on April 22, 2010.