Monday, August 16, 2010

Bradley: VWP Entrant Filing More Than 90 Days After Entry Cannot Block Deportation

Bradley v. Holder
No. 08-4184
April 22, 2010

Haroutyun Asatrian of Strasser Asatrian, LLC in Newark, NJ argued for Mr. Bradley. For the government, Gary J. Newkirk (argued), Stephen F. Day, and Justin R. Markel.

Judges Ambro, Smith, and Aldisert. Decision by Judge Aldisert.

Although there are several issues, one of the biggest concerns the defenses for someone facing summary deportation under the visa waiver program (where you waive the right under almost all circumstances to see an immigration judge in exchange for quick entry into the United States). The Third Circuit ruled that if someone is threatened with summary deportation under VWP, that person can challenge the imminent deportation only if he or she filed an adjustment of status application within 90 days of entering the United States.

One open issue is whether the Third Circuit would alter its rationale based on the so-called 30/60 day rule found at 9 Foreign Affairs Manual 40.63 n.4.7-1 to 4.7.4. Because Mr. Bradley did not raise the issue in his opening brief, the Third Circuit left open how it would rule in a case that raised the 30/60 day rule.

Under the Third Circuit's ruling, if someone is a VWP entrant and did not file for adjustment of status within 90 days of entering, and the government is about to deport the person, there is no way to demand that a federal court block the deportation.

Outside of court and separate from the decision, USCIS in New Jersey for some time is holding cases where a VWP entrant filed for adjustment of status more than 90 days after entering. It's not clear what they would do that -- the Third Circuit's ruling does not prevent USCIS from granting adjustment of status. All it says is that if the government is actively deporting someone before USCIS decides the request for a green card, the immigrant will not be able to get a federal court to block the deportation. We will see whether USCIS adopts a strange interpretation of the Third Circuit's decision (and if so, how soon a federal court can rule on USCIS's interpretation).


Anonymous Anonymous said...

The 3rd Circuit's decision is problematic for not only Immediate Relatives but also for DHS including USCIS, USICE as well as DOS. Hundreds, if not, thousands of families have already been negatively affected by this decision. The specific statute (INA 245(c)(2)), which plainly allows for VWP Immediate Relatives to process their Green Cards while in the U.S. for obvious family unity reasons, was trumped by a general statute (INA 217(b)) waiving the right to contest deportation. The Third Circuit Court's attempt to "harmonize" these two statutes demonstrates its lack of understanding of basic immigration concepts and longstanding immigration policies and procedures. The legacy INS's dissolution and creation of DHS with its separate bureaus e.g., ICE, CIS, etc. only compounds matters. Since an Order of Removal under INA 217 for VWPs is issued by ICE and INA 245 (Adjustment of Status) by CIS. This decision puts them at odds. Not to mention, DOS, who will now have to deal with an upsurge of IV applications, at Consulates that are not staffed or equipped for same. This unnecessary tax on consulate resources was the very reason that INA 245(c)(2) was simultaneously passed by Congress at the request of legacy INS and DOS, which the Third Circuit and for that matter, the other circuits failed to recognize with the exception of the Freeman case in the 9th Circuit.

For folks like the Bradleys in the U.S., they must endure the obstacles placed by these type of decisions and hope for change promised by our President. A change that needs to come soon to prevent the last straw to be placed on the backs of the new immigrants. We can hope for change but at the same time strive harder to make it a reality.

8:24 PM  

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