Bradley v. Attorney General of the United States
603 F.3d 235 (2010)
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Rule of Law:
An alien who enters the United States under the Visa Waiver Program (VWP) and overstays the 90-day period cannot later contest their removal by seeking an adjustment of status. The waiver of rights signed upon entry is enforceable upon the expiration of the authorized stay, and any due process challenge to the waiver's validity requires a showing of substantial, non-speculative prejudice.
Facts:
- On August 28, 1996, Heathcliffe John Bradley, a citizen of New Zealand, arrived in the United States without a visa.
- Bradley was admitted under the Visa Waiver Program (VWP) after signing a Form I-94W, which contained a waiver of his right to contest removal if he overstayed.
- Bradley claims he was intoxicated upon arrival and has little recollection of signing the form.
- His authorized stay was for 90 days, ending on November 27, 1996.
- Bradley remained in the United States long after his authorized stay expired.
- On July 29, 2006, Bradley married Cheryl Losee, a United States citizen.
- In December 2007, Bradley and Losee applied to adjust Bradley's status to that of a lawful permanent resident based on their marriage.
Procedural Posture:
- Bradley and his wife filed an I-130 immediate-relative visa petition, which was denied after they failed to appear for a scheduled interview.
- On October 8, 2008, the Department of Homeland Security arrested Bradley and issued a final order of removal against him.
- On October 14, 2008, Bradley filed a Petition for Review of the removal order in the U.S. Court of Appeals for the Third Circuit, naming the Department as the respondent.
- The Court of Appeals granted Bradley's motion for a stay of removal pending its review of the case.
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Issue:
Does the waiver of rights signed by an alien upon entry under the Visa Waiver Program preclude them from contesting a subsequent removal order by seeking a marriage-based adjustment of status after having overstayed the 90-day limit?
Opinions:
Majority - Aldisert, Circuit Judge
Yes, the waiver of rights signed upon entry under the Visa Waiver Program precludes an alien who has overstayed the 90-day limit from contesting a subsequent removal order. The court reasoned that Bradley's challenge to the waiver's validity fails on three grounds. First, there was 'clear, unequivocal, and convincing evidence' that he signed the waiver, based on his own admission, documentary evidence, and the presumption of regularity in agency actions. Second, to sustain a due process challenge that the waiver was not 'knowing and voluntary,' Bradley must show 'substantial prejudice,' which he cannot do. If he had known about the waiver and refused to sign, he would have been summarily removed at the border; thus, any alleged harm from his ignorance is too speculative. Third, the court reconciled the VWP's no-contest clause with the statute allowing for marriage-based adjustment of status (8 U.S.C. § 1255(c)(4)). It held that a VWP entrant may apply for adjustment of status during their lawful 90-day stay, but once they overstay, the waiver 'kicks in,' barring them from using an adjustment of status application as a defense to removal.
Analysis:
This decision reinforces the stringent nature of the Visa Waiver Program's no-contest provision, making it exceptionally difficult for VWP entrants who overstay to challenge their removal. By establishing that a due process challenge requires a showing of substantial prejudice, which is nearly impossible in this context, the court effectively insulates VWP removal orders from such attacks. The ruling clarifies the narrow window for VWP entrants to seek an adjustment of status, limiting it to the initial 90-day lawful stay. This solidifies the VWP as a program demanding strict compliance, where the benefit of visa-free travel comes at the cost of waiving significant procedural rights if the terms are violated.
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