Opinion
CV 04-666-PA.
July 26, 2004
BRENT W. RENISON, Tonkon Torp LLP, Portland, OR, Attorneys for petitioner.
KARIN J. IMMERGUT, United States Attorney, KENNETH C. BAUMAN, Assistant United States Attorney, District of Oregon, Portland, OR, Attorneys for United States of America.
OPINION
Carla Arabella Freeman brings this petition for writ of habeas corpus under 28 U.S.C. § 2241, contending that she is eligible for lawful permanent resident status because she is the widow of a United States citizen. Respondents contend that petitioner waived her right to challenge removal, and that she is not eligible for adjustment of status because her husband died after less than two years' of marriage.
I deny the petition. I order that respondents not remove petitioner from this jurisdiction for thirty days from this date.
BACKGROUND
Petitioner was born in 1977, in Rhodesia (now Zimbabwe). She is a citizen of South Africa and of Italy because of her father's Italian citizenship.
In May 1999, petitioner received a non-immigrant visa from the American Consulate General in South Africa, which allowed her to work as an au pair in the United States. Petitioner arrived in the United States on June 1, 1999. She met her future husband, Robert Glen Freeman, while she was living in the Chicago area. After petitioner returned to South Africa on June 29, 2000, Freeman flew there to propose marriage to her.
On January 21, 2001, petitioner was admitted to the United States for ninety days as a tourist under the visa waiver program. Petitioner and Freeman were married on February 23, 2001. Petitioner went back to South Africa two days later.
On June 13, 2001, petitioner returned to the United States. She again used the visa waiver program, which allowed her to remain in the United States without a visa until September 12, 2001. As part of the visa waiver program, petitioner was required to sign a form stating, "I hereby waive any rights to review or appeal or an immigration officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation." Answer, Ex. A, at 14. The waiver form included a "certification," which stated that the person signing the form had "read and under[stood] all the questions and statements on this form." Id.
On August 31, 2001, Freeman submitted a petition for immediate relative on behalf of petitioner, based on their marriage. At the same time, petitioner submitted an application to change her status to lawful permanent resident based on Freeman's immediate relative petition.
On February 5, 2002, Freeman was killed while driving alone when a truck crossed into his lane. At the time of Freeman's death, the agency had not acted on his immediate relative petition or on petitioner's accompanying application for adjustment of status.
On May 17, 2004, petitioner appeared in Portland for an interview with the United States Citizenship and Immigration Services (USCIS), about her application for status as a lawful permanent resident. The District Director, William McNamee, denied petitioner's application because she had not been married for two years when her husband died.
Respondents took petitioner into custody but released her later that day. Respondents seek to remove petitioner under 8 C.F.R. § 217.4(b), which authorizes removal without hearing or appeal for aliens admitted to the United States under the visa waiver program.
DISCUSSION
I. Subject Matter Jurisdiction and Exhaustion of Remedies
Because petitioner raises constitutional challenges to the agency's decision that she must be removed, this court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction) and the Administrative Procedures Act.
Agency rules do not allow an administrative appeal of a district director's ruling that an alien is removable based on the alien's use of the visa waiver program. 8 C.F.R. § 217.4(b)(1). Petitioner has no administrative remedies to exhaust.
II. The Merits of the Petition
A. Petitioner Waived Her Rights to Challenge Removal
Respondents contend that petitioner waived her rights to challenge her removal when she agreed to be admitted to the United States under the visa waiver program. 8 U.S.C. § 1187. I agree.
Petitioner admits that she signed the waiver of rights. The waiver states, "I hereby waive any rights to review or appeal or an immigration officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation." Answer, Ex. A, at 14. Petitioner also signed a certification that she understood the waiver form.
Visitors admitted under [the visa waiver] program may enter the country without a visa, and may stay a maximum of ninety days, in exchange for waiving their right to contest any action for deportation against them, unless that challenge is based upon an application for asylum. 8 U.S.C. § 1187(b)(2). Such visitors are ineligible for adjustment of status, except on the basis of either (1) an immediate relative petition or (2) an application for asylum. 8 C.F.R. § 217.4(b), (c), 245.1.Faruqi v. Department of Homeland Security, 360 F.3d 985, 986-87 (9th Cir. 2004).
Petitioner contends that by applying for change of status based on her husband's immediate relative petition, she "should be considered assimilated to the status of an alien who has applied for adjustment of status under [ 8 U.S.C. § 1255]." Reply at 4. Petitioner contends that filing the immediate relative petition bestows certain due process rights she would not otherwise have.
The visa waiver program does allow aliens to challenge removal through an immediate relative petition. However, petitioner's argument begs the question of whether her husband's immediate relative petition is still effective after his death.
Petitioner also contends that she did not knowingly waive her rights to challenge removal when she signed the visa waiver form. Petitioner states that visa waiver forms are handed out to international airline passengers just before landing in the United States, and that passengers have little time to review and understand the forms. Petitioner does not describe the specific circumstances of her decision to sign the waiver form.
I conclude that petitioner has not shown that the waiver was invalid. Petitioner has not presented evidence that she did not understand the waiver. There is no indication that petitioner has difficulty understanding English. See Wigglesworth v. INS, 319 F.3d 951, 959-60 (7th Cir. 2003) (waiver valid when alien had high school education, owned own business, and traveled extensively, and "waiver form was exceptionally clear"); Nose v. Attorney Gen., 993 F.2d 75, 80 (5th Cir. 1993) (waiver valid and prevented alien from challenging deportation); Itaeva v. INS, 314 F.3d 1238, 1242 (10th Cir. 2003). Cf. Handa v. Crawford, 312 F. Supp.2d 1367, 1372 (W.D. Wash. 2004) (upholding agency's enforcement of waiver when the petitioner "failed to allege any constitutional violations").
B. Validity of Two-Year Marriage Rule
Even if petitioner could challenge removal despite her waiver, I conclude that respondents have reasonably interpreted the relevant statutes on spouses' eligibility for adjustment of status. Congress defines "immediate relatives" as:
the children, spouses, and parents of a citizen of the United States, except that, in the case of parents, such citizens shall be at least 21 years of age. In the case of an alien who was the spouse of a citizen of the United States for at least 2 years at the time of the citizen's death and was not legally separated from the citizen at the time of the citizen's death, the alien (and each child of the alien) shall be considered, for purposes of this subsection, to remain an immediate relative after the date of the citizen's death but only if the spouse files a petition under section 1154(a)(1)(A)(ii) of this title within 2 years after such date and only until the date the spouse remarries. For purposes of this clause, an alien who has filed a petition under clause (iii) or (iv) of section 1154(a)(1)(A) of this title remains an immediate relative in the event that the United States citizen spouse or parent loses United States citizenship on account of the abuse.8 U.S.C. § 1151(b)(2)(A)(i) (emphasis added).
Petitioner acknowledges that the statute "appears to set out an absolute requirement that the widow of a United States citizen be married for at least two years prior to the death of the spouse to remain eligible for immediate relative classification." Reply at 5-6. That is how the agency interpreted the statute here: "Your husband, Robert Freeman, died on February 5, 2002. Since that time, you have no longer been a spouse of a citizen of the United States; therefore, you are not entitled to status as an immediate relative. . . ." Answer, Ex. A, at 74.
Petitioner argues that Congress added the underlined portion of the statute in 1990 to allow the widows or widowers of United States citizens to file immediate relative petitions on their own behalf. Petitioner contends that Congress intended to create a separate right for aliens who have been married to a United States citizen at least two years. Petitioner argues that because her husband filed the petition for immediate relative classification on her behalf, she is not subject to the two-year marriage requirement.
Petitioner also argues that she should be considered a "spouse" for immigration purposes. The statutory definition of "spouse" sheds little light on the subject. For a more helpful definition, petitioner turns to Black's Law Dictionary, whose Sixth Edition defines "spouse" as "One's husband or wife, and `surviving spouse' is one of a married pair who outlive the other." Id. at 1402. (While Black's Sixth Edition distinguishes "spouse" from "surviving spouse," the Seventh Edition defines "spouse" simply as "One's husband or wife by lawful marriage; a married person." Id. at 1410.) Based on this definition, petitioner argues that the word "spouse" as used in the immediate relative statute should be read to include a surviving spouse.
The statute provides that "spouse" does not include persons married in a ceremony "where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated." 8 U.S.C. § 1101(35).
There is little case law on this issue. In a case decided by the Board of Immigration Appeals, a woman who was a citizen of the Philippines married a United States citizen. In re Varela, 13 I. N. Dec. 453 (1970). The husband filed a petition to have his wife classified as an immediate relative. The husband died after only a few weeks of marriage, before the agency had ruled on the immediate relative petition. The BIA upheld the denial of the wife's petition, reasoning that by the time the District Director made his decision, "the beneficiary [i.e., the alien] was not the spouse of a United States citizen. His death stripped her of that status." Id.
As petitioner notes, the BIA later concluded that it did not have jurisdiction to rule in Varela. In re Sano, 19 I. N. 299 (1985). The BIA has not, however, rejected Varela's reasoning.
In Burger v. McElroy, 1999 WL 203353 (S.D.N.Y. 1999), a noncitizen woman married a United States citizen. The husband filed immediate relative petitions for his new wife and her child, who in turn filed petitions for adjustment of status. However, the husband died after only a few months of marriage, before the agency had ruled on the petitions. The agency denied the petition, stating that "there is no provision for the approval of an I-130 [immediate relative] visa petition in a case where a United States citizen petitioner has died if the marriage is less than two years old." Id. at *2 (quoting INS ruling).
Although petitioner here argues for a narrow interpretation of the statute's "two year" requirement, and for an expansive definition of "spouse," petitioner has not shown the agency's interpretation of the statute is incorrect. I agree with theBurger court that "[i]n light of the deference owed to the BIA's interpretation of statutory law, it cannot be said that this is an impermissible construction of the statute." Id. at *5 (citations omitted).
Petitioner also argues that the statutory scheme violates her Fifth Amendment due process right to equal protection. "`[L]ine-drawing' decisions made by Congress or the President in the context of immigration and naturalization must be upheld if they are rationally related to a legitimate government purpose."Ram v. INS, 243 F.3d 510, 517 (9th Cir. 2001);Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-64 (9th Cir. 2002) (only a "wholly irrational" legislative classification violates equal protection). "Challengers have the burden to negate `every conceivable basis which might support [a legislative classification] . . . whether or not the basis has a foundation in the record.'" Hernandez-Mezquita, 293 F.3d at 1164 (quoting Heller v. Doe, 509 U.S. 312, 320-21 (1993) (citation omitted)).
Petitioner cites statutes that allow adjustment of status, regardless of the duration of the marriage, for non-citizen spouses of (1) United States military personnel who were killed in combat, and of (2) United States citizens killed by a terrorist attack. Petitioner argues that these statutes make unreasonable distinctions, noting that the spouse of a contractor who dies in Iraq would not be covered while the spouse of a soldier who died in combat in Iraq would be covered.
I conclude that Congress may reasonably treat aliens whose spouses were killed during active military duty or during a terrorist attack more favorably than aliens whose spouses died from other causes. Petitioner has not shown an equal protection violation.
CONCLUSION
The petition for writ of habeas corpus (#1) is denied. Respondents are ordered not to remove petitioner from this jurisdiction for thirty days.