Mohammed Bayo v. Janet Napolitano ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1069
M OHAMMED B AYO ,
Petitioner-Appellant,
v.
JANET A. N APOLITANO,
Secretary of Homeland Security,
Respondent-Appellee.
On Petition for Review of a Final Order of the
Department of Homeland Security.
No. A89-340-905
A RGUED M AY 13, 2009—D ECIDED JANUARY 20, 2010
Before E ASTERBROOK, Chief Judge, and B AUER, P OSNER,
C OFFEY, F LAUM, K ANNE, R OVNER, W OOD, E VANS, W ILLIAMS,
S YKES, and T INDER, Circuit Judges.Œ
W OOD , Circuit Judge. Mohammed Bayo is not the most
sympathetic of litigants. He is a citizen of Guinea, but
Œ
Circuit Judge Hamilton took no part in the consideration or
decision of this case.
2 No. 07-1069
he stole a Belgian passport and used it to enter the
United States fraudulently. Why, one might ask, would
he go to the trouble of doing this? Guineans are entitled
to visit the United States, provided they observe the
required formalities. But Guinea is not one of the 35
countries that comes within the State Department’s Visa
Waiver Program (“VWP”); Belgium is. See Visa Waiver
Program (VWP) http://www.travel.state.gov/visa/temp/
without/without_1990.html#countries (last visited Jan. 15,
2010). Bayo’s ploy enabled him to enter with a minimum
of bureaucratic fuss and then to evade detection for
more than four years.
His luck ran out only when he pushed it by petitioning
for adjustment of status based on his marriage to an
American citizen. The government knew that someone
had entered with the illegal Belgian passport, and Bayo’s
petition enabled it to connect that passport to him. At that
point, the Department of Homeland Security (“DHS”)
promptly processed his removal without a hearing, as it
normally would with any legitimate VWP participant
who overstays his visit. Summary procedures are the
quid pro quo for the United States government’s waiver
of the normal visa requirements. Bayo’s waiver was
memorialized in the Form I-94W (“VWP waiver”) that
he signed upon his arrival in the United States. The
wrinkle is that the form was in English, and Bayo
asserts that he speaks only French.
Before us is Bayo’s petition for review of DHS’s adminis-
trative order of removal. See 8 U.S.C. § 1252(a)(1). Bayo
offers three reasons why we should grant the petition
No. 07-1069 3
and remand the case for plenary removal proceedings
before an immigration judge (“IJ”). (The advantage of
such proceedings is that he would be able, in principle,
to seek relief from removal in them; such relief is not
available in the summary VWP process.) First, Bayo
contends that the VWP waiver he signed is void ab initio,
because he is a Guinean citizen and the program
cannot be applied in any way to citizens of non-VWP
countries. Second, he argues that his lack of English
proficiency renders invalid the particular waiver he
signed, as he did not know what he was signing, and
(in his view) his waiver must be assessed according to
the familiar knowing-and-voluntary standard that
applies to constitutional rights. Third, he asserts that
even if the waiver is valid, he should nevertheless be
permitted to pursue his adjustment-of-status applica-
tion. Although there is merit in some of his points, in
the end we conclude that he cannot demonstrate
prejudice from the errors that occurred here. We
therefore deny his petition for review.
I
A
“The Visa Waiver Pilot Program was established by
Congress to determine if a visa waiver provision could
facilitate international travel and promote the more
effective use of the resources of affected government
agencies. . . .” Visa Waiver Pilot Program, 53 Fed. Reg.
24,898, 24,898 (June 30, 1988). Only citizens of VWP
countries may participate in the Program, and just 35
4 No. 07-1069
countries currently qualify. See 8 C.F.R. § 217.2(a). The
VWP operates through a reciprocal waiver arrange-
ment: the United States waives its visa requirement, and
in exchange, the visitor waives her right to contest admissi-
bility determinations or removal (except for asylum). See
8 U.S.C. § 1187(a), (b). VWP entrants are also treated
differently, and perhaps more favorably, when they
apply for asylum, because they are entitled to bypass
the credible-fear process and proceed directly to an IJ.
See 8 C.F.R. § 217.4(b). Bayo has not argued that he
would be entitled to asylum, and so we have no need
to discuss that possibility further.
At the time of Bayo’s entry, the terms of the VWP were
memorialized in Form I-94W, which had to be filled out
and signed by all VWP entrants upon their arrival in
the United States. It describes the visitor’s waiver of
rights as follows:
WAIVER OF RIGHTS: I hereby waive any rights to
review or appeal of an immigration officer’s determi-
nation as to my admissibility, or to contest, other
than on the basis of an application for asylum, any
action in deportation.
The Form further elaborates on the conditions that apply
to the visitor’s sojourn in the United States:
WARNING: You may not accept unauthorized em-
ployment; or attend school; or represent the foreign
information media during your visit under this pro-
gram. You are authorized to stay in the U.S. for
90 days or less. You may not apply for: 1) a change
of nonimmigrant status; 2) adjustment of status to
No. 07-1069 5
temporary or permanent resident, unless eligible under
section 201(b) of the INA; or 3) an extension of
stay. Violation of these terms will subject you to
deportation.
In response to the Implementing Recommendations of
the 9/11 Commission Act of 2007, Pub. L. No. 110-53,
121 Stat. 266, the DHS recently implemented the new
Electronic System for Travel Authorization (“ESTA”),
which requires visitors to fill out the I-94W form online
in advance of travel to the United States. See The
Electronic System for Travel Authorization: Mandatory
Compliance Required for Travel Under the Visa Waiver
Program, 73 Fed. Reg. 67,354 (Nov. 13, 2008). The I-94W
form is now offered in 21 different languages on the
ESTA website. See Welcome to ESTA, https://esta.cbp.
dhs.gov (last visited Jan. 15, 2010).
B
As we noted at the outset, Bayo is a native and citizen
of Guinea, and Guinea is not a VWP country. Belgium is,
however, and Bayo acquired a stolen passport from
that country that enabled him to enter the United States
without a proper visa on July 12, 2002. Upon arrival
at Newark Airport, Bayo signed an English-language
Form I-94W, even though he asserts that he neither
speaks nor reads English. Bayo overstayed the 90 days
to which an ordinary VWP traveler is entitled and eventu-
ally settled in Indianapolis, Indiana, where he met
Tatiana Sia, a United States citizen. On April 21, 2006, he
6 No. 07-1069
married her. He then sought an adjustment of status
to legal permanent resident status based on that marriage.
On September 26, 2006, Immigration and Customs
Enforcement (“ICE”) received information from the
National Security Investigation Division, Compliance
Enforcement Unit that Bayo had entered the United
States illegally under a Belgian passport. Cross-referencing
this information with its immigration files enabled ICE
to locate Bayo’s pending I-130 and I-485 applications for
lawful permanent residence status based on marriage.
ICE officers visited Bayo’s home on November 20, 2006,
and questioned him about his immigration status. He
freely admitted to using the stolen passport and turned
it over. The DHS then promptly ordered Bayo’s
removal, selecting as the basis for its action Bayo’s
overstay under the VWP. (Fraud was another
potential removal ground.) In accordance with the terms
of the I-94W form that he signed, Bayo received no
removal hearing.
II
As a preliminary matter, we must briefly discuss our
authority to act in this case, as the VWP waiver Bayo
signed might be read to preclude judicial review. The
first two issues that Bayo raises challenge the funda-
mental validity of the VWP waiver itself; his third point
concerns a potential exception to the waiver. The scope
of our review is narrow, but 8 U.S.C. § 1252 confers author-
ity on the courts of appeals to review VWP decisions,
among others. (Other mechanisms, including notably
habeas corpus, are no longer open to persons resisting
No. 07-1069 7
VWP removal orders. See 8 U.S.C. § 1252(a)(5).) At
a minimum, we may consider whether the statutory
criteria on which the VWP rests have been met. Compare
Morales-Morales v. Ashcroft, 384 F.3d 418, 421 (7th Cir.
2004) (court has jurisdiction to determine whether a
particular alien’s claim falls within the scope of a
jurisdiction-stripping statute); see generally United States
v. Ruiz, 536 U.S. 622, 627 (2002) (“[I]t is familiar law that
a federal court always has jurisdiction to determine its
own jurisdiction.”). The predicate questions we may
look at here include whether Bayo’s VWP waiver is valid
and whether he may invoke a valid exception to his
waiver. We may not consider more generally whether
Bayo might be entitled to stay in the country on some
other ground, such as, for example, by adjusting his
status based on his marriage.
These limitations define our inquiry in this appeal. Three
questions are properly before us: first, may an alien who
is not eligible for the VWP, but who enters using fraudu-
lent documents that trigger use of the VWP, be held to
the terms of the VWP waiver; second, what is the
standard for the waiver of the procedural rights that are
covered by the VWP; and third, assuming a valid VWP
waiver, does an alien who entered under the VWP and
then overstayed have an independent right to adjust his
status on the basis of marriage to a United States citizen?
A
In their original briefs, the parties did not address the
question whether Bayo’s VWP waiver is void because he
8 No. 07-1069
is not a citizen of a VWP country. Because we thought
that this question was potentially dispositive of the case,
we requested supplemental briefing on it.
In his supplemental brief, Bayo notes that the statutory
language establishing the VWP does not say anything
about nationals of non-VWP countries possibly being
eligible for the program. He infers from that silence that
the VWP is entirely inapplicable to citizens of non-VWP
countries. He then reasons that he cannot be held to the
terms of a VWP waiver that never should have been
before him in the first place. The final step in his argu-
ment is the assertion that he must therefore be subject
to ordinary removal procedures (including a hearing
before an IJ) just as if he had never entered under the
VWP. See 8 U.S.C. § 1229a(a)(1) (“An immigration
judge shall conduct proceedings for deciding the inadmis-
sibility or deportability of an alien.”); see also 8 U.S.C.
§ 1229a(a)(3) (“[A] proceeding under this section shall be
the sole and exclusive procedure for determining
whether an alien may be admitted to the United States or,
if the alien has been so admitted, removed from the
United States.”).
The government concedes that the statutory language
establishing the VWP does not specifically mention the
admission of aliens from non-VWP countries, but it does
not attach such an elaborate set of consequences to this
silence. It takes the position that the VWP regula-
tions, which (it says) are entitled to deference under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842-43 (1984), address the possibility of aliens
No. 07-1069 9
fraudulently entering under the program. Those regula-
tions also, in its view, mean that someone in Bayo’s
position may be held to the terms of the VWP waiver. The
government further appeals to the background principle
of immigration law under which aliens should generally
be held to the terms of their entry. To hold otherwise,
the government argues, would allow savvy aliens to
manipulate the VWP and would hinder the govern-
ment’s attempts to remove promptly aliens who have
abused the system.
To begin, we must reject Bayo’s contention that
statutory silence tells us very much. See Negusie v. Holder,
129 S. Ct. 1159, 1164 (2009) (noting that statutory “silence
is not conclusive”). Silence might signify something
about the scope of a statute, but it equally might
highlight an issue that Congress did not anticipate or
that it chose to leave open. It is under these circum-
stances that Congress has implicitly delegated authority
to the relevant agency to resolve the issue. See Nat’l
Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 980 (2005) (“[A]mbiguities in statutes within an
agency’s jurisdiction to administer are delegations of
authority to the agency to fill the statutory gap in rea-
sonable fashion.”).
In our view, the Attorney General appropriately has
acted here to clarify the scope of the VWP as it pertains
to certain abuses of the program, insofar as the VWP
regulations address the situation of ineligible aliens
entering fraudulently under the VWP. See 8 C.F.R.
§ 217.4(a) (mentioning VWP applicants who might be
10 No. 07-1069
ineligible or who present fraudulent documents); 8 C.F.R.
§ 217.4(b) (noting that aliens who have been admitted
under the VWP are deportable under the program if
they are deportable under one of the grounds listed in
8 U.S.C. § 1227). The Board of Immigration Appeals also
has interpreted the regulations to apply to VWP-ineligible
aliens. See In re Kanagasundram, 22 I. & N. Dec. 963, 964
(B.I.A. 1999) (“[T]he provisions of 8 C.F.R. § 217.4 are
not limited to aliens who are actually nationals of
VWPP designated countries, but specifically encompass
individuals who present fraudulent and counterfeit
travel documents from such countries.”); see also Zine v.
Mukasey, 517 F.3d 535, 542-43 (8th Cir. 2008) (holding
that aliens entering under the VWP should be held to
the VWP waiver’s terms).
In assessing those regulations, our first question is
whether we find the statute ambiguous. As we
indicated earlier, we do: the fact that it says nothing
about nationals of non-VWP countries creates the am-
biguity that drives both Bayo’s and the government’s
arguments. The VWP regulations answer that ambiguity
by applying the terms of the program to those who
enter under the VWP, even if they are ineligible for it. Our
only task under Chevron is to determine whether the
Attorney General’s interpretation, as expressed in the
VWP regulations, is reasonable. We find that it is. There
is little reason to think that Congress would have
wanted to confer the benefits of the VWP on ineligible
aliens while sparing them the costs of entering under the
Program. We say this in full recognition of the fact
that applying the terms of the VWP to ineligible aliens
No. 07-1069 11
may also confer on them the possible benefit in
asylum cases of being able to skip the credible-fear inter-
view and proceed directly to an IJ. See Kanagasundram,
22 I. & N. Dec. at 964. But the fact that there may be
some benefits to the ineligible aliens as well as burdens
simply means that the Attorney General had to balance
several factors in the course of interpreting the statute.
He was entitled, in doing so, to adopt an approach
that preserves the government’s ability to remove
aliens who fraudulently enter under the VWP just as
promptly as it can remove legitimate VWP entrants.
Our conclusion on this issue is in line with our earlier
decisions. We have dismissed attempts by aliens to take
control of their removal proceedings for overstay by
pleading fraud. See Milande v. INS, 484 F.2d 774, 776 (7th
Cir. 1973) (“To prove overstay, the respondent need
only show a nonimmigrant’s admission for a temporary
period, that the period has elapsed, and that the
nonimmigrant has not departed. Any fraud or misrepre-
sentation at time of entry is irrelevant to the charge of
overstay . . . .”). We have also safeguarded the govern-
ment’s ability to select the ground on which to remove
aliens who are here illegally. See Ntovas v. Ahrens, 276
F.2d 483, 484 (7th Cir. 1960) (“In the administrative pro-
ceedings the ground selected and relied upon by the
government was not fraud or misrepresentation and
plaintiff has not the power to substitute for his own
convenience a ground not involved in the deportation
proceedings.”). The government in this case was there-
fore entitled to select overstay under the terms of the
VWP as the ground for removing Bayo.
12 No. 07-1069
B
Immigration law draws a bright line between “an
alien who has effected an entry into the United States
and one who has never entered.” Zadvydas v. Davis, 533
U.S. 678, 693 (2001). We acknowledge that those who
stand at the threshold of admission are subject to
special rules. See Shaughnessy v. United States, 345 U.S.
206, 212 (1953) (“[A]n alien on the threshold of initial
entry stands on a different footing: Whatever the proce-
dure authorized by Congress is, it is due process as far
as an alien denied entry is concerned.”) (internal quota-
tion marks omitted). The parties, however, do not
dispute that Bayo has entered the United States, and so
the “entry fiction” doctrine does not apply to him. Once
he crossed the border, Bayo became entitled to certain
constitutional rights, including the right to due pro-
cess. See Plyler v. Doe, 457 U.S. 202, 210 (1982) (“Aliens,
even aliens whose presence in this country is unlawful,
have long been recognized as ‘persons’ guaranteed
due process of law by the Fifth and Fourteenth Amend-
ments.”); Yick Wo v. Hopkins, 118 U.S. 356, 368 (1886)
(“The Fourteenth Amendment to the Constitution is not
confined to the protection of citizens. . . . [Its] provisions
are universal in their application, to all persons within
the territorial jurisdiction.”).
The government argues that Bayo waived these rights
by signing the VWP form, but Bayo counters that the
waiver he signed is invalid because he did not under-
stand it. If the VWP waiver were a garden-variety
contract, Bayo’s argument would almost certainly fail.
No. 07-1069 13
See Paper Express, Ltd. v. Pfankuch Maschinen GmbH, 972
F.2d 753, 757 (7th Cir. 1992) (“[A] party who agrees to
terms in writing without understanding or investigating
those terms does so at his own peril.”); 27 W ILLISTON
ON C ONTRACTS § 70:113 (4th ed. 2009) (“One who signs
or accepts a written contract, in the absence of fraud or
other wrongful act on the part of another contracting
party, is conclusively presumed to know its contents and
to assent to them.”). The VWP waiver, however, is no
normal contract. It includes a waiver of the right to a
full immigration hearing; that waiver implicates both
statutory rights and, in the final analysis, the constitu-
tional right to due process.
In criminal cases, courts both “indulge every reason-
able presumption against waiver of fundamental con-
stitutional rights and . . . do not presume acquiescence
in the loss of fundamental rights.” Johnson v. Zerbst, 304
U.S. 458, 464 (1938) (internal quotation marks omitted).
The Supreme Court also has established constitutional
standards for waivers of constitutional rights in civil
cases. See Fuentes v. Shevin, 407 U.S. 67, 94 n.31 (1972) (“In
the civil area, the Court has said that we do not
presume acquiescence in the loss of fundamental rights.
Indeed, in the civil no less than the criminal area, courts
indulge every reasonable presumption against waiver.”)
(citation and internal quotation marks omitted) (quoting
Ohio Bell Tel. Co. v. Pub. Util. Comm’n, 301 U.S. 292, 307
(1937) and Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393
(1937)). While the Supreme Court has consistently classi-
fied deportation proceedings as civil rather than
criminal, e.g. Harisiades v. Shaughnessy, 342 U.S. 580, 594
14 No. 07-1069
(1952), at the same time the “Court has not closed its
eyes to the drastic deprivations that may follow when
a resident of this country is compelled by our Govern-
ment to forsake all the bonds formed here and go
to a foreign land where he often has no contemporary
identification.” Woodby v. INS, 385 U.S. 276, 285 (1966)
(applying criminal law’s burden of proof requirement
to deportation proceedings). See Bridges v. Wixon, 326
U.S. 135, 154 (1945) (“Though deportation is not
technically a criminal proceeding, it visits a great hard-
ship on the individual and deprives him of the right
to stay and live and work in this land of freedom. That
deportation is a penalty—at times a most serious one—
cannot be doubted. Meticulous care must be exercised
lest the procedure by which he is deprived of that
liberty not meet the essential standards of fairness.”)
We conclude from this that the waiver standard in immi-
gration cases, while perhaps not quite as strict as the
one applicable to criminal cases, see Johnson v. Zerbst,
must reflect the Supreme Court’s recognition of the
unique character of this area.
Bayo argues that only a waiver of rights that is
knowing and voluntary can be effective here, and in
support of this position he assumes that the traditional
definition of waiver as the “intentional relinquishment
or abandonment of a known right” applies. United States
v. Olano, 507 U.S. 725, 733 (1993). The government, in
contrast, argues for what it calls a “presumption”
of knowledge, invoking the common-law maxim that
knowledge of the law is presumed. See Cheek v. United
States, 498 U.S. 192, 199 (1991) (“Based on the notion
No. 07-1069 15
that the law is definite and knowable, the common law
presumed that every person knew the law.”); Dimenski
v. INS, 275 F.3d 574, 578 (7th Cir. 2001) (“In immigration
law, as in tax law—and criminal law, too, where knowl-
edge of the law is presumed—the Constitution permits
the government to leave people to their own research.”)
(citation omitted). That presumption, the govern-
ment argues, satisfies the knowledge requirement of
the knowing and voluntary standard, and Bayo does not
dispute that he signed the VWP waiver volun-
tarily—he contests only that he did so knowingly.
We have in the past assumed that a VWP waiver is valid
only if it was done knowingly and voluntarily. See
Wigglesworth v. INS, 319 F.3d 951, 959 (7th Cir. 2003).
The government would have us depart from that under-
standing, substituting a presumption of knowledge for
the requirement of actual knowledge. But this would
have the practical effect of eliminating the knowledge
requirement altogether—a path we decline to follow for
a host of reasons. First, we do not feel free to abandon
the presumption against waiver of constitutional rights,
see Fuentes, 407 U.S. at 94 n.31; compare Johnson, 304
U.S. at 464, nor do we think that such a step would be
advisable. Second, both the concepts of waiver and the
presumption of knowledge of the law are ubiquitous in
our legal system; defining their interaction so as to elimi-
nate the knowledge requirement for a valid waiver of
constitutional rights would change the law in various
contexts not at issue here. Third, adopting a standard
that rests solely on voluntariness would lead to absurd
results, as it would render all waivers of constitutional
16 No. 07-1069
rights signed without coercion valid, regardless of
whether the signatory understood a single word on the
page. As amici point out, this would have a particularly
detrimental effect on victims of human trafficking, who
often come from VWP countries. See U NITED S TATES
D EPARTMENT OF JUSTICE, A SSESSMENT OF U.S. G OVERN -
MENT E FFORTS TO C OMBAT T RAFFICKING IN H UMAN
P ERSONS IN F ISCAL Y EAR 2005 3-4 (2006), available at http://
www.usdoj.gov/ag/annualreports/tr2006/assessment_of_
efforts_to_combat_tip.pdf (noting that aliens who had
received Certification and Eligibility Letters to obtain
services and benefits for victims of human trafficking
came from several VWP countries, including Czech
Republic, Estonia, Hungary, Latvia, and South Korea).
These aliens frequently enter the country voluntarily
(hoping for employment but often finding hard labor
or prostitution) and sign whatever forms that their traf-
fickers put in front of them, without understanding the
language on the form. Enforcing the terms of the VWP
waiver against the victims of human trafficking (when
they signed without knowledge) would prevent them from
accessing T and U visas. See 8 U.S.C. § 1101(a)(15)(T), (U).
To render these provisions inoperative in this way
would contravene congressional intent to provide relief
to those who have been trafficked.
In sum, we decline to pursue such a radical departure
from established law. The only other circuit to have
considered this question has come to the same conclu-
sion. See Nose v. Attorney Gen. of United States, 993 F.2d
75, 78-79 (5th Cir. 1993). The government raises the
specter of endless litigation were we to adopt the
No. 07-1069 17
knowing and voluntary standard, but it has failed to
produce any evidence that this standard has proven
unworkable in the Fifth Circuit. This is not for want of
time to test the standard, which has been around for
more than 15 years. Nor is it because the Fifth Circuit
lacks experience with immigration, as Houston is a
large port of entry and Texas is a popular destination
for nonresident nonimmigrants (a category into which
VWP entrants fall). See R ANDALL M ONGER & M ACREADIE
B ARR , U NITED S TATES D EPARTMENT OF H OMELAND
S ECURITY, A NNUAL F LOW R EPORT: N ONIMMIGRANT A DMIS-
SIONS TO THE U NITED S TATES: 2008 6-8 (2009), available at
http://www.dhs.gov/xlibrary/assets/statistics/publication
s/ois_ni_fr_2008.pdf. Perhaps most telling is the fact that
the Fifth Circuit itself has not found it necessary to
change its standard in response to overwhelming litiga-
tion or other concerns.
We therefore hold that an alien’s waiver through the
VWP of the due process rights to which he or she would
otherwise be entitled must be done both knowingly and
voluntarily. That said, there are a few additional points
that must be clarified. Just as we are not inclined to
endorse a sea change in the law of waiver, we also do not
wish to disturb the understanding that the government
is entitled to assume that people know the law. That
means, importantly, that immigration officials are under
no obligation to provide any form of legal advice to
incoming immigrants. See City of W. Covina v. Perkins,
525 U.S. 234, 241 (1999) (finding that government need not
take steps to inform citizens of remedies if information
about them is generally available). We also express no
18 No. 07-1069
opinion on the procedures the government should adopt
in order to ensure that waivers of constitutional rights
occur knowingly and voluntarily with respect to language
proficiency. Going forward, it seems likely to us that
this problem has largely been solved, as the ESTA
website allows the traveler to select for the VWP waiver
one of 21 languages, presumably those that are spoken
in the 35 VWP countries. For a person already here who
did not have the ESTA available to her, there are a
variety of methods that could be used to adjudicate a
claim contesting the knowing and voluntary nature of
her waiver, and it is not our role to prescribe any
particular system. We trust the executive branch to
devise a system that fulfills the goals of fairness,
efficiency, and security.
Turning to the current case, we encounter the govern-
ment’s argument that whether Bayo speaks English or
French is immaterial, as aliens cannot plead a lack of
language proficiency in proceedings like this one.
Support for this proposition may be found in language
from The Japanese Immigrant Case, 189 U.S. 86, 101-02 (1903)
(“It is true that she pleads a want of knowledge of our
language; that she did not understand the nature and
import of the questions propounded to her; that the
investigation made was a ‘pretended’ one; and that she
did not, at the time, know that the investigation had
reference to her being deported from the country. These
considerations cannot justify the intervention of the
courts.”). The government does not cite this case in any
of its briefs. Moreover, this language is dicta, as the
No. 07-1069 19
Court in Japanese Immigrant was concerned that the
alien had not followed the proper procedures
for bringing her complaint before the executive branch
authorities, as was required then:
[Appellant’s arguments] could have been presented
to the officer having primary control of such a case,
as well as upon an appeal to the Secretary of the
Treasury, who had power to order another investiga-
tion if that course was demanded by law or by the
ends of justice. It is not to be assumed that either
would have refused a second or fuller investigation,
if a proper application and showing for one had
been made by or for the appellant. Whether further
investigation should have been ordered was for the
officers, charged with the execution of the statutes,
to determine. Their action in that regard is not
subject to judicial review. Suffice it to say, it does not
appear that appellant was denied an opportunity to be
heard. And as no appeal was taken to the Secretary
from the decision of the Immigration Inspector, that
decision was final and conclusive.
Id. at 102 (emphasis added).
Even though none of the parties has explored the
limits of Japanese Immigrant, we think it important to
explain why we do not find it to be dispositive here.
First, for the reasons we have already explained, this
court has authority to resolve Bayo’s petition, unlike the
situation in Japanese Immigrant. Second, the alien
in Japanese Immigrant was asserting that her lack of knowl-
20 No. 07-1069
edge of English (and her other disabilities) entitled her
to a broader scope of judicial review than the statute
afforded. Focusing on the allocation of responsibility
between the immigration officers and the courts, the
Supreme Court rejected her argument. Bayo is not
claiming that his asserted lack of command of the
English language alters the scope of judicial review.
Instead, the question is whether he may raise certain
arguments in a proceeding authorized by the governing
statute. Properly in court, he is entitled to raise as one
of his arguments whether, for any reason (including but
not limited to language problems) his VWP waiver was
unknowing and therefore invalid. The government does
not dispute our jurisdiction to consider final orders of
removal. See 8 U.S.C. § 1252(a)(5); see also Carlson v.
Landon, 342 U.S. 524, 537 (1952) (noting that the power
to expel aliens lies with the political branches, but
subject to “such opportunity for judicial review of their
action as Congress may see fit to authorize or permit” as
well as “judicial intervention under the paramount law
of the Constitution.”) (internal quotation marks omitted).
Finally, the government also does not allege that Bayo
has failed to exhaust other available remedies provided
by the executive branch.
Bayo, however, still has one more hurdle to clear
before he may prevail. To warrant a new immigration
hearing on a due process claim, an alien “must
establish that she was prejudiced, that is, that the error
likely affected the result of the proceedings.” Alimi v.
Gonzales, 489 F.3d 829, 834 (7th Cir. 2007). Inability to
No. 07-1069 21
show prejudice is where Bayo’s case founders. Had he
known what the waiver said, Bayo would have had two
options, either of which would have led to summary
removal. If he had signed the waiver anyway, knowing
full well what it said, he would be in the same situation
as he is now. If he had refused to sign, he would have
been removed summarily at the border because he did not
have a proper visa. Perhaps there is a slight chance
that after removal, Bayo could have obtained a visa to
come to the United States, and then he might have
settled in Indiana, met Tatiana Sia, and married her,
allowing him to adjust his status based on marriage at
that time. As Bayo admits in his brief though, “[i]t is
difficult to compare what might have been with what
is.” This is true, and it is the reason why we find the
explanation of how Bayo might have been harmed too
speculative to support a showing of prejudice. This
dooms Bayo’s language proficiency argument as a basis
for his petition.
C
Finally, Bayo argues that even if his waiver is valid, he
should be entitled to adjust his status based on his mar-
riage to Sia under 8 U.S.C. § 1255(c)(4). That part of the
adjustment-of-status statute prohibits VWP entrants
from adjusting status unless adjustment is based on an
immediate relative, defined by 8 U.S.C. § 1151(b) to
include spouses. The government responds that Bayo
has waived his right to contest his removal because he
chose to enter under the VWP, and that process
22 No. 07-1069
included a waiver of the right to adjust status. See 8
U.S.C. § 1187(b)(2).
At first glance, it appears that there is a conflict between
the adjustment-of-status statute, 8 U.S.C. § 1255(c)(4),
and the VWP statute, 8 U.S.C. § 1187(b)(2). Upon closer
examination, however, we believe that they can be recon-
ciled. During the time when a nonimmigrant visitor is
within the VWP’s 90-day window, she may submit an
adjustment-of-status application based on an immediate
relative. An application submitted at that time would not
represent a challenge to removal. After the visitor over-
stays her 90-day visit, however, the effect of the VWP
waiver kicks in, preventing any objection to removal
(except for asylum), including one based on adjustment
of status. All of the circuits to have addressed this
issue have held that the VWP waiver prevents an alien
from applying for adjustment of status after 90 days
have elapsed. See McCarthy v. Mukasey, 555 F.3d 459,
462 (5th Cir. 2009); Momeni v. Chertoff, 521 F.3d 1094, 1097
(9th Cir. 2008) (narrowing Freeman v. Gonzales, 444 F.3d
1031 (9th Cir. 2006), to its facts, as the court in Freeman
allowed an adjustment-of-status application filed prior
to the expiration of the 90 days under the VWP); Zine,
517 F.3d at 543; Lacey v. Gonzales, 499 F.3d 514, 519 (6th
Cir. 2007); Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th
Cir. 2006). Bayo filed his application for adjustment of
status long after his 90 days were up. As a result, his
adjustment-of-status application is barred by his valid
VWP waiver or by the fact that in the absence of a
No. 07-1069 23
waiver he never would have entered the United States
in the first place.
***
We D ENY the petition for review.
1-20-10