Is this the pending Supreme Court Case relative to Visa Waiver Program?

[Myopia 93]

Prelude

Pending Case?

[JimVaPhuong 4,863]

Good find. I expected Bradley was going to be appealed.

Yes, this may very well be the case that establishes, once and for all, whether a VWP overstay can adjust status. Frankly, I think Bradley's lawyers may have prejudiced their case. The question they present to the Supreme Court is:

Whether an alien who waived his rights under the VWP and who has overstayed the term of lawful admission may contest his removal by applying for adjustment of status and demanding the right to present that application to an immigration judge in removal proceedings.

Right off the bat, they've admitted that adjustment of status constitutes an appeal to contest removal. This is the very basis that the seven district courts have used to justify denying adjustment of status for a VWP overstay. The waiver of rights required of every VWP entrant makes any appeal impossible. They further ask for the right to present the application to an immigration judge in removal proceedings. Again, removal proceedings in an immigration court are a review of an IO's decision, and a VWP entrant has also waived the right to review. By the very way in which they've worded their question, they are asking for things that are specifically prohibited by the waiver.

In my (very humble) opinion, they would have been much better off asking the Supreme Court to determine if applying for an immigration benefit while the VWP entrant is out of status should be construed to be any sort of appeal or request for review. The law says a VWP entrant may not apply for adjustment of status, but makes a specific exception if they are applying as an immediate relative of a US citizen. There's a reasonable argument to be made that applying for adjustment of status on the basis of that exception should not constitute an appeal or request for review, even if the alien is out of status.

Well, it's going to be interesting to see how this plays out.

[Myopia 93]

Yea I agree with you.

I like this part from the attorneys blog

However, the brief also notes that DHS has the discretion to approve a Form I-485 Application filed at any time on behalf of a non-citizen who entered under the VWP if they are the immediate relative of a U.S. citizen. This policy marks a change from the Third Circuit’s decision which required the Form I-485 application to be filed within the 90-day validity period of the VWP.

Edited February 21, 2011 by Myopia

[Harpa Timsah 13,258]

Good find Myopia When will this appeal case be in front of a judge? Has it been already? (have trouble finding dates on here.)

[JimVaPhuong 4,863]

Good find Myopia When will this appeal case be in front of a judge? Has it been already? (have trouble finding dates on here.)

This is a writ of certiorari. This means it's a request to have the Supreme Court hear the case. The clerks of the Supreme Court Justices will review the writ and prepare a "cert memo" for each Justice. When the Justices meet they will review the cert memos and determine which cases will be added to the court's docket. Court rules require four Justices to vote to hear the case.

The Supreme Court doesn't hear every case that's submitted to them. Typically, they will grant certiorari and hear a case when they determine that it will have far reaching effect (i.e., it will set a precedent for many other similar cases), or when there has been disagreement among the appeals courts that have heard the case or similar cases. I think there's a pretty good chance they'll agree to hear this case. Although the district appeals courts have been pretty consistent, this case involves an interpretation of federal law that affects a lot of people, and the law isn't being applied the same way by every USCIS office. There's a compelling reason to issue guidance for USCIS to apply nationwide.

The actual hearing process is two parts. First, they schedule oral arguments. Attorneys for both sides make statements to the court in a public hearing. The Justices can also direct questions to the attorneys. After oral arguments, the Justices will meet privately to discuss the case and issue a ruling.

It can take months for the Justices to determine whether or not to grant certiorari for a particular case. Oral arguments can be scheduled months later, and a final ruling can be issued months after oral arguments. If the court considers the matter to be urgent then they can expedite any of these steps. For example, back in 2000 they moved the Bush/Gore election case through the system and issued a ruling in a matter of days.

[immlawyer 0]

@'JimVaPhuong'

It's easy to find faults with attorneys fighting for justice and not achieving same and usually without compensation. How many cases have you taken to the Court?

The Bradley decision is dead wrong on many issues. The 3rd Circuit panel was clearly misinformed and made a terrible leap in logic i.e., VWP overstays can't adjust after 90th day. CIS has interpreted this, which you can find in the Solicoter General's respone to Brandley's petition for writ of cert., to mean you can adjust after 90 days but not to contest removal. Well that's not what the 3rd Circuit said or meant in Bradley but CIS in their litigation position took this posture to defeat the writ pending before the Supreme Court. Why? CIS interpreted Bradley this way so that the issue presented became moot and turned on facts instead of law. If CIS argued that the 3rd Circuit was correct then it would have difficulty in defending this position because the 3rd Circuit was wrong. So CIS interpreted the Bradley decision to mean that VWP overstays may adjust their status even after the 90 days but it was in their discretion to adjust same. That is not what the 3rd Circuit said in Bradley or in subsequent cases citing same.

So Jim try to understand the whole story before passing judgment on the matter.

[JimVaPhuong 4,863]

@'JimVaPhuong'

It's easy to find faults with attorneys fighting for justice and not achieving same and usually without compensation. How many cases have you taken to the Court?

Meaning what? I have to be an attorney in order to be able to read, understand, and form an opinion?

The Bradley decision is dead wrong on many issues. The 3rd Circuit panel was clearly misinformed and made a terrible leap in logic i.e., VWP overstays can't adjust after 90th day. CIS has interpreted this, which you can find in the Solicoter General's respone to Brandley's petition for writ of cert., to mean you can adjust after 90 days but not to contest removal. Well that's not what the 3rd Circuit said or meant in Bradley but CIS in their litigation position took this posture to defeat the writ pending before the Supreme Court. Why? CIS interpreted Bradley this way so that the issue presented became moot and turned on facts instead of law. If CIS argued that the 3rd Circuit was correct then it would have difficulty in defending this position because the 3rd Circuit was wrong. So CIS interpreted the Bradley decision to mean that VWP overstays may adjust their status even after the 90 days but it was in their discretion to adjust same. That is not what the 3rd Circuit said in Bradley or in subsequent cases citing same.

So Jim try to understand the whole story before passing judgment on the matter.

The 3rd Circuit court determined he was ineligible to adjust status after overstaying his VWP entry because six other Circuit courts had already come to the same conclusion. They cited all six of them on page 17 of the decision, and quoted the Bayo case from the 7th Circuit. That portion of the 7th Circuit's decision explicitly stated that you can't adjust after 90 days to contest removal:

After the visitor overstays 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.

The 3rd Circuit said they agreed with the finding in the Bayo case. So how is this "not what the 3rd Circuit said or meant"?

[Harpa Timsah 13,258]

This is a writ of certiorari. This means it's a request to have the Supreme Court hear the case. The clerks of the Supreme Court Justices will review the writ and prepare a "cert memo" for each Justice. When the Justices meet they will review the cert memos and determine which cases will be added to the court's docket. Court rules require four Justices to vote to hear the case.

The Supreme Court doesn't hear every case that's submitted to them. Typically, they will grant certiorari and hear a case when they determine that it will have far reaching effect (i.e., it will set a precedent for many other similar cases), or when there has been disagreement among the appeals courts that have heard the case or similar cases. I think there's a pretty good chance they'll agree to hear this case. Although the district appeals courts have been pretty consistent, this case involves an interpretation of federal law that affects a lot of people, and the law isn't being applied the same way by every USCIS office. There's a compelling reason to issue guidance for USCIS to apply nationwide.

The actual hearing process is two parts. First, they schedule oral arguments. Attorneys for both sides make statements to the court in a public hearing. The Justices can also direct questions to the attorneys. After oral arguments, the Justices will meet privately to discuss the case and issue a ruling.

It can take months for the Justices to determine whether or not to grant certiorari for a particular case. Oral arguments can be scheduled months later, and a final ruling can be issued months after oral arguments. If the court considers the matter to be urgent then they can expedite any of these steps. For example, back in 2000 they moved the Bush/Gore election case through the system and issued a ruling in a matter of days.

Thanks!