Momeni v. Chertoff

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAMBIZ MOMENI, 
Petitioner-Appellant,
v.
MICHAEL CHERTOFF, Secretary,
United States Department of
Homeland Security; JULIE L.
MYERS, Assistant Secretary for US
Immigration and Customs No. 07-55018
Enforcement, United States
Department of Homeland Security;  D.C. No.
CV-06-05675-SGL
JOHN P. TORRES, Acting Director,
Office of Detention and Removal, OPINION
US Immigration and Customs
Enforcement; JAMES T. HAYES,
District Director, Los Angeles
District Office, Detention and
Removal Operations, US
Immigration and Customs
Enforcement; KENNETH COX,
Respondents-Appellees.

Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
July 12, 2007—Pasadena, California
Filed March 31, 2008
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,
and Richard C. Tallman, Circuit Judges.
3283
3284 MOMENI v. CHERTOFF
Opinion by Judge Kleinfeld
MOMENI v. CHERTOFF 3285
COUNSEL
Lori B. Schoenberg, Reeves and Associates, A PLC, Pasa-
dena, California, for the appellant.
Thomas K. Buck, Assistant U.S. Attorney, Los Angeles, Cali-
fornia, for the appellees.
OPINION
KLEINFELD, Circuit Judge:
We consider whether a traveler to the United States under
the Visa Waiver Program may contest deportation pending an
application for adjustment of status. Momeni argues that
under Freeman v. Gonzales1 the “no contest” provision2 of the
90-day tourist program does not apply to him, because he has
since filed (and has pending) an application for adjustment of
status, based on his marriage to a United States citizen.
1
444 F.3d 1031 (9th Cir. 2006).
2
8 U.S.C. § 1187(b).
3286 MOMENI v. CHERTOFF
Facts
Momeni is a German citizen. He came to the United States
as a tourist on November 30, 2005. Under a pilot program that
Congress created, citizens of certain countries can come to the
United States as tourists for 90 days or less without visas.3
Various conditions have to be satisfied by the country (e.g.,
a reciprocal program4) and the tourist (e.g., a round-trip
ticket5). To get the government waiver of the usual visa
requirement, the tourist has to sign a waiver of his or her own
right to contest removal other than on the basis of asylum.6
Momeni did not go back to Germany by March 1, which
was 90 days after he entered the United States. On April 11,
2006, he married a United States citizen. In July, Momeni was
taken into custody for violating the conditions of his admis-
sion under the Visa Waiver Program, and given notice that he
was to be removed. In September, Momeni and his wife
applied to adjust Momeni’s status. His removal has been
stayed pending disposition of this case. Because there are no
administrative proceedings available for entrants under the
Visa Waiver Program except on the basis of asylum, he
sought none, and instead petitioned for a writ of habeas cor-
pus in district court. The district court dismissed the petition
on the ground that it lacked jurisdiction, and he appealed.
3
See 8 U.S.C. § 1187.
4
See 8 U.S.C. § 1187(a)(2).
5
See 8 U.S.C. § 1187(a)(8).
6
See 8 U.S.C. § 1187(b). Under the Visa Waiver Program, an alien may
enter the United States without a visa for a period of 90 days. An alien
who enters under this program waives any right “(1) to review or appeal
under this [Act] of an immigration officer’s determination as to the admis-
sibility of the alien at the port of entry into the United States, or (2) to con-
test, other than on the basis of an application for asylum, any action for
removal.” Id.
MOMENI v. CHERTOFF 3287
Analysis
I. Jurisdiction
[1] The district court correctly ruled that it did not have
jurisdiction. In Iasu v. Smith,7 we held that, for habeas peti-
tions filed after the effective date of the REAL ID Act, a “dis-
trict court plainly lack[s] habeas jurisdiction” over challenges
to removal orders.8 Congress amended 8 U.S.C. § 1252(a)(5)
in the REAL ID Act to provide that “a petition for review
filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial
review of an order of removal entered or issued under any
provision of this [Act].”
The scope of our own jurisdiction is arguable, but in order
to avoid the constitutional argument raised by Momeni that
the REAL ID act could not deprive the courts of habeas juris-
diction without violating the Suspension Clause,9 we assume
for purposes of this decision that we have jurisdiction.10
II. Merits
[2] Momeni entered the United States under the Visa
Waiver Program, a special program for tourists from 27 coun-
tries.11 The Visa Waiver Program allows tourists to enter the
United States “for 90 days or less” from the designated coun-
tries without visas.12 To do so, they must waive “any right . . .
7
511 F.3d 881 (9th Cir. 2007).
8
Id. at 888.
9
U.S. Const. art I, § 9, cl. 2.
10
See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001).
11
Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland,
France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxem-
bourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San
Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United
Kingdom. See 8 C.F.R. § 217.2.
12
8 U.S.C. § 1187(a).
3288 MOMENI v. CHERTOFF
to contest, other than on the basis of an application for asy-
lum, any action for removal.”13 Momeni has not sought asy-
lum from Germany. That, basically, is the end of the case.
In Freeman, the alien married the United States citizen
before entering the Visa Waiver Program and sought an
adjustment of status within the 90 days she could stay. But
she was thwarted from adjusting her status by the subsequent
death of her husband in a car accident, shortly before their
first wedding anniversary. We noted that there are “likely to
be a small percentage of VWP entrants in Mrs. Freeman’s posi-
tion,”14 a very sympathetic one, and held that in that case the
adjustment of status statute superseded the no contest provi-
sion.15
[3] None of the relevant circumstances of Freeman pertain
here. Freeman married before the 90 days expired (and before
the particular trip to the United States), whereas Momeni mar-
ried after his 90 days expired; Freeman applied for adjustment
of status during the 90 days, whereas Momeni applied after
the 90 days expired. These distinctions disqualify Momeni
from circumventing the Visa Waiver Program’s no contest
clause by means of adjustment of status.
We characterized this no contest clause in Handa v. Clark16
as “the linchpin of the [Visa Waiver] program, which assures
that a person who comes here with a VWP visa will leave on
time and will not raise a host of legal and factual claims to
impede removal if he overstays.”17 Freeman was an exception
because she was eligible to adjust her status at time she
arrived, under 8 U.S.C. § 1254, she applied within her 90
13
8 U.S.C. § 1187(b).
14
Freeman, 444 F.3d at 1036 n.9.
15
Id. at 1037.
16
401 F.3d 1129 (9th Cir. 2005).
17
Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005).
MOMENI v. CHERTOFF 3289
days, and she would have obtained her adjustment of status
but for her husband’s death. Momeni, though, doesn’t fall
within this narrow exception.
[4] If a Visa Waiver Program entrant does not leave when
the 90 days expires, life in the United States goes on. It may
go on for many years before the alien comes to the govern-
ment’s attention. There are legal means by which aliens may
marry United States citizens, obtain visas, and obtain adjust-
ment of status, but overstaying the 90 days for tourists in the
Visa Waiver Program is not among them. If it were, our com-
ment in Freeman that there are “likely to be a small percent-
age of VWP entrants in Mrs. Freeman’s position”18 would not
be correct.
We agree with the Tenth Circuit in Schmitt v. Maurer,19 that
to allow an adjustment of status petition after the 90 days has
expired would create an avoidable conflict between the
adjustment of status statute and the no contest statute. Where
an appellate court can construe two statutes so that they con-
flict, or so that they can be reconciled and both can be
applied, it is obliged to reconcile them.20 An alien who comes
to the United States under the Visa Waiver Program generally
cannot avoid his or her waiver of the right to contest removal
(other than on the basis of asylum). Freeman is a narrow
exception to the rule, but Momeni doesn’t fall within this
exception
AFFIRMED.
18
Freeman, 444 F.3d at 1036 n.9.
19
451 F.3d 1092 (10th Cir. 2006).
20
See, e.g., Cal. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v.
United States, 215 F.3d 1005, 1012 (9th Cir. 2000) (“Of course, it is a well
established axiom of statutory construction that, whenever possible, a
court should interpret two seemingly inconsistent statutes to avoid a poten-
tial conflict.”).