Bingham v. Holder
2011 U.S. App. LEXIS 5919
| 9th Cir. | 2011Background
- Bingham, a UK citizen, was admitted to the United States under the Visa Waiver Program for 90 days in March 2007 and overstayed by more than a year.
- On December 12, 2008, DHS ordered Bingham removed without a Notice to Appear or removal hearing, based on his VWP status and overstay.
- A signed Form I-94W waiver of rights was transmitted to the record only shortly before oral argument; the government later supplemented the record with the waiver.
- Bingham filed a petition for review of the removal order, challenging the validity and consequences of the VWP waiver and seeking a removal hearing.
- The Ninth Circuit concluded it had jurisdiction to review the final removal order to consider whether the waiver was invalid and whether removal violated due process, and denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review waiver validity | Bingham asserts no subject-matter jurisdiction to challenge the waiver. | Government contends DHS removal order is reviewable and waiver validity can be challenged under §1252(a). | Court has jurisdiction to review waiver validity in removal order. |
| Effect of I-94W language on waiver scope | Waiver language does not clearly waive all rights to removal proceedings. | Waiver language broadly waives rights to contest deportation/removal, with asylum exception. | Waiver language adequately informs waiver of rights; it is effective. |
| Contract principles to enforceability of waiver | Waiver is unenforceable due to lack of knowledge and contract-defect theories. | Contract defenses fail; signing the waiver is knowing or at least enforceable as a government condition. | Waiver not unenforceable under contract principles. |
| Unconstitutional conditions doctrine applicability | VWP waiver conditions entry on waiving due process rights violates due process. | No constitutional rights were conditioned; even if due process applies, doctrine does not apply here. | Unconstitutional conditions doctrine does not apply; waiver upheld. |
| Prejudice from allegedly unknowing waiver | If unknowing, waiver prejudiced ability to contest removal (e.g., potential eligibility through marriage). | No showing that lack of knowledge would have allowed contest or altered outcome; possible alternatives were speculative. | No prejudice shown; waiver remains valid and removal lawful. |
Key Cases Cited
- Bayo v. Napolitano, 593 F.3d 495 (7th Cir.2010) (waiver of removal rights may be reviewed under §1252; knowing-and-voluntary standard discussed)
- Bradley v. U.S. Attorney General, 603 F.3d 235 (3d Cir.2010) (jurisdiction to review waiver validity in VWP context)
- McCarthy v. Mukasey, 555 F.3d 459 (5th Cir.2009) (related discussions on waiver and removal procedures under VWP)
- Nose v. Attorney General, 993 F.2d 75 (5th Cir.1993) (due process waiver must be knowing and voluntary)
- Handa v. Clark, 401 F.3d 1129 (9th Cir.2005) (waiver as linchpin of VWP and its enforcement)
- Lata v. INS, 204 F.3d 1241 (9th Cir.2000) (prejudice standard in due process challenge to deportation)
- Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir.2006) (due process considerations in VWP context)