Visa Waiver Program – A Court Rejects “Entry-Ergo-Waiver Logic” of the Department of Homeland Security
On March 2, 2009, the Eleventh Circuit Court of Appeals issue a good decision in a Visa Waiver Program case involving the removal of an individual who was never shown by the government to having knowingly waived his right to a hearing before an Immigration Judge in removal proceedings despite having entered the U.S. on the Visa Waiver Program. Unfortunately, the individual in question was, in fact, removed by the government during the pendency of the litigation. Still, the case provides further evidence that federal courts will not stand by while the government tries to prevent the courts from protecting the due process rights of Visa Waiver entrants.
The case is Mokarram v. U.S. Attorney General (not precedential) and the facts, briefly, are as follows: Mokarram entered the U.S. under the Visa Waiver Program in 1988 (then called the Visa Waiver Pilot Program) when he was only 12 years old. He was issued an I-94, marked “WT”, the old designation “waiver/tourist”. He was picked up by the police years later on a state traffic violation and issued a “Notice of Intent to Deport” for having overstayed his entry on the Visa Waiver program. The government claimed that Mokarram waived his right to a hearing before an Immigration Judge, except to apply for asylum, and sought to immediately deport him.
Mokarram filed a Petition for Writ of Habeas Corpus which was then transferred to the Court of Appeals and treated as a Petition for Review.
The Court of Appeals held that there was absolutely no evidence that Mokarram ever knowingly waived his due process rights to a hearing before an Immigration Judge or to contest the removal action, despite his Visa Waiver status. The Court rejected the government’s “entry-ergo-waiver logic”—the idea that every single Visa Waiver entrant must be presumed to having knowingly waived his or her due process rights. On the contrary, the Court presumed that Mokarram did not waiver his rights, absent some showing by the government that he had. In this case, the government had no such evidence. The Court remanded the case back to the Department of Homeland Security on the issue of whether Mokarran was prejudiced by the DHS’ violation of his due process rights.
The case illustrates the importance of a Visa Waiver entrant who has been detained for removal purposes in getting to federal court fast and filing an emergency motion for a stay of removal there. As I noted above, Mokarram was, in fact, removed during the case and so to some extent the decision is a hollow victory for him. The case is very helpful, however, for other Visa Waiver entrants who may find themselves being served with a Notice of Intent to Remove.
