Posted by Norka M. Schell, Esq.
Congress established the Visa Waiver Program (VWP) "to facilitate international travel and promote the effective use of resources of affected government agencies while not posing a threat to the welfare, health, safety, and security of the United States." Nose v. Atty Gen., 993 F.2d 75, 77n. 2(5th Cir. 1993)(quoting 53 Fed. Reg. 24,898 (1988)). Under the VWP, a qualifying visitor may enter the United States without obtaining a visa, so long as, he or she meet the statutory and regulatory requirements. As part of the admission process under the VWP, a visitor must execute certain immigration form known as I-94W, Non immigrant Visa Waiver Arrival/Departure Form, presents a valid passport, and possesses a round-trip ticket. Once admitted under the VWP, a visitor may remain in the United States for 90 days. Under the VWP, a visitor must waive his or her right to contest the government's admissibility determinations and removal actions, except that the visitor may contest removal actions on the basis of asylum. The effects of this no-contest provision are severe. This is what Vera, a citizen of Argentina, found it out. In 2000, when Jordan Vera (also known as Jordana Vera-Serra)("Vera") was just 12-year-old, her Argentina parents brought her to the United States under the VWP. In 2011, while the Immigration Custom Enforcement agents were executing an arrest warrant for her brother, they took her into custody and scheduled removal without an appearance before an Immigration Judge, for staying beyond the 90 days that she was permitted to stay pursuant to the VWP under which she entered this country. Vera argued that the removal order was invalid because she was a minor when she entered in the United States and that she did not received procedural protections to which she would have been entitled absent such a waiver. The Third Circuit denied Vera's appeal, finding no prejudice resulting from their enforcement of the allegedly-defective waiver. The Court held that Vera would not have been allowed to enter without signing the waiver form (I-94W); if Vera had been of majority age and had knowingly and voluntarily had executed the waiver, she would not have been entitled to the procedural protections normally afforded to any alien prior to removal. There is no dispute that Vera knowingly and voluntarily signed the VWP waiver. Accordingly, Vera waived the due process right to a hearing before an immigration judge.