IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2009
No. 07-60426
Charles R. Fulbruge III
Clerk
JOAN McCARTHY, also known as JOAN BOETTGE,
Petitioner,
v.
MICHAEL B. MUKASEY, U. S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:
The petitioner seeks review of a removal order, contending that the Visa
Waiver Program’s waiver of the right to contest an action of removal1 does not
apply to an applicant for adjustment of status under 8 C.F.R. § 245.2. We deny
the petition for review.
I
On February 7, 2006, Joan McCarthy, a citizen of the United Kingdom,
entered the United States as a non-immigrant under the Visa Waiver Program
(VWP).2 The VWP permits eligible nationals from certain designated countries
1
See 8 U.S.C. § 1187(b)(2).
2
8 U.S.C. § 1187.
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to apply for admission to the United States for ninety days or less as
non-immigrant visitors without first obtaining a visa.3 However, the statute
imposes upon every participating alien a reciprocal waiver requirement.
Participating aliens must waive “any right . . . to contest, other than on the basis
of an application for asylum, any action for removal . . . .”4
Under the VWP, McCarthy was authorized to remain in the United States
until May 7, 2006. McCarthy claims that on May 5, 2006, she married Dennis
Boettge, a United States citizen. More than one year later, on or about May 8,
2007, McCarthy filed for an adjustment of status based on her marriage to
Boettge.
On May 10, 2007, the Department of Homeland Security (DHS) issued a
notice of intent to remove McCarthy for remaining in the United States beyond
the ninety-day period. The DHS noted that in signing the VWP information
form, McCarthy waived her right to contest any action for removal and to seek
judicial review of the DHS’s decision. The DHS issued an order of removal the
same day.
McCarthy timely filed the instant petition for review and moved to stay
deportation proceedings pending review. This court denied McCarthy’s motion
to stay and McCarthy was removed to the United Kingdom. This court has
jurisdiction to review constitutional claims or questions of law such as those
presented here.5
3
See id.
4
Id. § 1187(b)(2).
5
See id. § 1252(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any other provision
of this Act (other than this section) which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions of law raised upon a
2
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II
This court has not previously addressed whether aliens admitted under
the VWP can contest orders of removal on the basis of pending adjustment-of-
status applications. However, in Nose v. Attorney General, we recognized that
the “express language” of 8 U.S.C. § 1187(b) “unambiguously” limits an alien’s
means of contesting removal solely to an application for asylum.6 We further
noted that if we were reviewing a substantive-due-process or equal-protection
challenge to the VWP it would “be limited to a ‘rational basis’ analysis.”7
McCarthy recognizes the limitation imposed by the VWP’s waiver, but she
argues that the waiver provision of § 1187(b) does not apply because she filed an
application for an adjustment of status prior to the issuance of the notice of
removal. McCarthy argues that once she filed her application for adjustment of
status, she was entitled to the procedural “safeguards” of 8 C.F.R. § 245.2,
including the right to renew her application for adjustment of status and to
challenge the removal order before an immigration judge.
McCarthy asserts that this court should follow the Ninth Circuit’s
reasoning in Freeman v. Gonzalez, which held that the “no-contest” provision of
§ 1187(b) does not apply once the VWP alien properly files an adjustment-of-
status application.8 However, the Ninth Circuit has since narrowed Freeman.
petition for review filed with an appropriate court of appeals in accordance with this section.”).
6
993 F.2d 75, 80 (5th Cir. 1993) (citations omitted).
7
Id. at 78 n.5.
8
See 444 F.3d 1031, 1033-34 (9th Cir. 2006) (“[O]nce a VWP entrant files an
adjustment of status application as an immediate relative, as contemplated by 8 U.S.C. §
1255(c)(4), the alien is entitled to the procedural guarantees of the adjustment of status
3
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In Momeni v. Chertoff, the court explained that “Freeman was an exception
because she was eligible to adjust her status at [the] time she arrived, under 8
U.S.C. § 1254, she applied within her 90 days, and she would have obtained her
adjustment of status but for her husband’s death.”9 The court held that Momeni,
who, unlike Freeman, applied for an adjustment of status after the expiration of
the ninety days, did not fall within the “narrow [Freeman] exception” and,
therefore, could not circumvent the VWP’s no-contest clause by means of an
adjustment of status.10
The Sixth, Eighth, and Tenth Circuits have also concluded that aliens who
file for an adjustment of status after the expiration of the ninety-day period
waive their right to contest a subsequent removal order.11 The Tenth Circuit’s
analysis in Ferry v. Gonzales12 is particularly instructive.
In Ferry, the VWP participant filed an application for adjustment of status
based on his prior marriage to a United States citizen almost one year after the
expiration of the ninety-day period.13 Before a decision was rendered on Ferry’s
regime, see 8 C.F.R. § 245.2, and to that extent is no longer subject to the Visa Waiver
Program’s no-contest clause.”).
9
521 F.3d 1094, 1096 (9th Cir. 2008).
10
Id. at 1097 (“We agree with the Tenth Circuit in Schmitt v. Maurer, 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.” (footnote omitted));
accord Bayo v. Chertoff, 535 F.3d 749, 752 (7th Cir. 2008).
11
See Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008); Lacey v. Gonzales, 499 F.3d
514, 519 (6th Cir. 2007); Ferry v. Gonzales, 457 F.3d 1117, 1128 (10th Cir. 2006).
12
457 F.3d 1117.
13
Id. at 1120-22.
4
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application, the DHS issued an order of removal on the basis that Ferry had
remained in the United States beyond the ninety-day period authorized by the
VWP.14
Ferry argued that he had a statutory right to an adjustment of status
based on 8 U.S.C. § 1255(c)(4) and due process.15 Rejecting Ferry’s argument,
the court noted that it had previously observed that “any conflict between the
statutory provision permitting a VWP alien to apply for adjustment of status and
the VWP’s waiver provision was created by the petitioner’s decision to file an
application for adjustment of status after he had already overstayed his visa
. . . .”16 The court also concluded that an alien’s right to renew his or her
application for adjustment of status in removal proceedings “is eliminated by the
last sentence in 8 C.F.R. § 1245.2(a)(5)(ii): ‘Nothing in this section shall entitle
an alien to [removal] proceedings under section 240 of the Act [8 U.S.C. §
1229(a)] who is not otherwise so entitled.’”17
The Ferry court held that “[i]t is evident under the applicable statutes and
regulations that a VWP alien who overstays his authorized time and is ordered
removed has waived his right to contest that removal through an application for
adjustment of status.”18 The court further held that “an alien who overstays his
authorized time under the VWP and files for an adjustment of status after he
has overstayed, but before the issuance of a removal order, has waived his right
14
Id. at 1120.
15
Id. at 1126-27.
16
Id. at 1127 (citing Schmitt v. Maurer, 451 F.3d 1092, 1097 (10th Cir. 2006)).
17
Id. at 1128 (alterations in original) (quoting 8 C.F.R. § 1245.2(a)(5)(ii)).
18
Id. (citing Schmitt, 451 F.3d at 1096-97).
5
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to contest a subsequent removal order through a renewed application for
adjustment of status, or to otherwise seek review of the previously filed
adjustment of status.”19
The Tenth Circuit also rejected Ferry’s claim that due process entitled him
to a hearing before an immigration law judge for consideration of his
adjustment-of-status application.20 Citing our opinion in Nose, the Ferry court
opined that “an alien’s due process rights are subject to waiver.”21
We agree with the Tenth Circuit that once McCarthy violated the terms
of the VWP by remaining in the United States for more than ninety days, she
was no longer entitled to contest her removal, other than through an application
for asylum.22 McCarthy sought an adjustment of status almost one year after
the expiration of the ninety-day period. The fact that McCarthy applied for an
adjustment of status before the DHS issued its notice of removal is of no
consequence.23 Therefore, McCarthy could not circumvent the unambiguous
language of 8 U.S.C. § 1187 by subsequently applying for an adjustment of
status.
Similarly, we reject McCarthy’s claim that due process of law entitled her
to a hearing before an immigration law judge for consideration of her
19
Id.
20
Id.
21
Id. at 1129 (citing Nose v. Attorney Gen., 993 F.2d 75, 78-79 (5th Cir. 1993)); accord
Wigglesworth v. INS, 319 F.3d 951, 959-60 (7th Cir. 2003).
22
See Nose, 993 F.2d at 79-80.
23
See Ferry, 457 F.3d at 1127 (holding that filing an application for adjustment of
status before a removal order “fares no better” than the case where an application was filed
after a removal order).
6
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adjustment-of-status application. We have previously held that due process
rights may be waived as long as such waiver is knowingly and voluntarily
made.24 There is no dispute that McCarthy knowingly and voluntarily signed
the VWP waiver. Accordingly, McCarthy waived her due process right to a
hearing before an immigration law judge.
* * *
We DENY the petition for review.
24
See Nose, 993 F.2d at 79 (“Although due process rights may be waived, such a waiver
must be made knowingly and voluntarily.” (citation omitted)); accord Ferry, 457 F.3d at 1129.
7