Visa Waiver Overstay and Adjustment of Status – Momeni v. Chertoff is a Problematic Case out of California
On March 31, 2008, the 9th Circuit Court of Appeals issued a problematic case in a Visa Waiver overstay case that may now present difficulties for others who overstay their 90 day period of authorized stay and then want to adjust their status. The case is Momeni v. Chertoff (No. 07-55018).
Under the Visa Waiver Program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waive his or her right to contest removal (other than on the basis of asylum). The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the U.S., spend their tourist dollars, and then leave without all the red-tape involved in visa issuance. . . . .
In Momeni, the foreign national entered under the Visa Waiver Program, overstayed his 90 days, later married a U.S. citizen, later was taken into custody for having violated the terms of his stay, placed in removal proceedings, and only then filed to adjust his status based on his marriage to the U.S. citizen.
Momeni tried to convince the 9th Circuit that his case was similar to the case of Freeman v. Gonzales in which the foreign national married a U.S. citizen before entering the U.S. on the Visa Waiver Program and who then filed to adjust her status during the 90 day period of her authorized stay. In Freeman, the same 9th Circuit ruled that the “no-contest” provision of the Visa Waiver program was superseded by Freeman’s legitimate opportunity to apply for adjustment of status, since she was eligible to adjust her status the very day she arrived in the U.S. because of her already-existing marriage to a U.S. citizen..
The Court said the cases were very different: “Freeman married before the 90 days expired (and before the particular trip to the United States), whereas Momeni married
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.” The Court was clearly concerned that it would open a floodgate of applicants if it allowed Momeni to adjust under these circumstances in which he clearly violated the terms of the Visa Waiver Program.
The result, of course, is very problematic for Mr. Momeni but it also may be problematic for others in the future. Precedential opinions from a federal Court of Appeals (especially one like the 9th Circuit that is considered to be generally sympathetic to a wide range of foreign nationals who are trying to remain in the United States) are often followed by other federal Courts of Appeals. Also, the reasoning of a precedential opinion can be used by the government to create formal policy or to issue formal memos or guidance that then controls in other similar future situations.
Presently, where a Visa Waiver entrant marries a U.S. citizen and then files to adjust status based on that marriage before being placed in removal proceedings for having overstayed, CIS has been amenable to approving the adjustment of status application. Now, after Momeni, CIS may take the position that only adjustment applications filed within the first 90 days of arrival (as in Freeman) are approvable and that if you wait until after the 90 days or if you wait until after you receive a Notice to Appear for Removal before you file your adjustment application, you’re out of luck.
We’ll now wait to see how other Courts of Appeals and how CIS read Momeni.
