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Under the Visa Waiver Program, certain non-citizens are permitted to enter the United States as tourists for 90 days or less if they, among other things, waive any right “to contest, other than on the basis of an application for asylum, any action for removal of the alien.” But does that apply to minors and children who were brought here by their parents and grew up to become adults who knowingly or unknowingly overstayed their admittance?
Imagine that a minor is brought over at the age of 5 by her parents. She probably doesn’t understand English. She is made to sign a “visa waiver” form at the port of entry, waiving her right to immigration court. The minor grows up in the U.S., overstaying the 90 days. When she is 21, she gets stopped and detained while traveling through an airport because she doesn’t have proper state-issued identification. Does she have any right to a trial instead of expedited removal? After all, how can a minor waive her rights?
Any waiver of rights by a citizen or non-citizen must be voluntary. See Nose v. U.S. Att’y Gen., 993 F.2d 75, 78-79 (5th Cir.1993); Bayo v. Chertoff, 535 F.3d 749 (7th Cir.2008). In Galuzzo v. Holder the Second Circuit Court cited Johnson v. Zerbst, 304 U.S. 458, 464, stating with emphasis that “we indulge every reasonable presumption against waiver of fundamental constitutional rights.” Galuzzo, an Italian national, argued that he had not waived his right to a pre-removal hearing just because he entered on a visa-waiver program and moreover, the government failed to produce a signed waiver from him. The court ruled that absent a signed waiver, Galuzzo had a due process right to a pre-removal hearing. However, the court did not provide relief to Galuzzo and remanded the case to DHS to determine whether Galuzzo was prejudiced by a denial of his due process right to a pre-removal hearing.
Additionally, in Mokarram v. U.S. Attorney General, the Eleventh Circuit ruled that an immigrant’s due process rights were violated when he was removed without a hearing under the visa waiver program and that this warranted remand to permit administrative determination as to whether he was substantially prejudiced by such violation.
The hurdle is whether the non-citizen was substantially prejudiced by being denied a right to a pre-removal hearing. If she has claims such as cancellation of removal, then she is more likely to be substantially prejudiced. If there is pending legislation in her favor or she can adjust her status within the next few years through employment or marriage, she can also make the argument that court proceedings would give her the time necessary for adjustment of status, a much better scenario than expedited removal.
In conclusion, if you entered as a minor on a visa waiver program, you have not given up your right to a pre-removal hearing. It is unconstitutional to deny you that right. ICE will insist that you have and try to remove you from the country in an expedited manner. Take them to court. They won’t be able to find a waiver with your signature on it. Make the DHS lawyers sit and squirm in their seat. Watch them try to argue that people can waive their right to a trial away as minors and moreover, are not prejudiced by a denial of due process even if they have substantial claims they can make in immigration court.
Why should ICE have all the fun?
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