672 F.3d 187
3rd Cir.2012Background
- Vera, a citizen of Argentina, entered the U.S. on Sept. 8, 2000, under the Visa Waiver Program (VWP) at age 12.
- VWP requires a signed waiver form (I-94W) and limits stay to 90 days; waiver precludes contesting removal except asylum.
- Vera overstayed the 90-day limit and remained in the U.S. for years beyond authorization.
- ICE arrested Vera on July 22, 2011; she provided a sworn statement acknowledging VWP entry.
- A Notice of Intent to Deport was issued; removal was scheduled for Aug. 4, 2011, but Vera refused to board and sought review.
- The government could not produce Vera’s signed waiver and contends a presumption applies that she signed it; the court ultimately denies the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the waiver presumption applies and was not rebutted. | Vera argues the government failed to show she signed the waiver. | The government is entitled to a presumption Vera signed the waiver given VWP admission. | Presumption applies and is not rebutted. |
| Whether Vera’s status as a minor at signing affects enforceability or prejudice under due process. | Vera contends minor status invalidates any waiver and requires process. | Even assuming minor status, no substantial prejudice shown; due process satisfied. | No substantial prejudice shown; due process satisfied under Bradley/Bayo framework. |
Key Cases Cited
- Bradley v. Attorney General, 603 F.3d 235 (3d Cir. 2010) (presumption of waiver; prejudice framework for VWP waivers)
- Bayo v. Napolitano, 593 F.3d 495 (7th Cir. 2010) (prejudice must be shown for unknowing/invalid waiver)
- Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008) (absence of process constitutes prejudice only where not waived by statute)
- Nose v. Attorney General, 993 F.2d 75 (5th Cir. 1993) (waiver standards in immigration context)
- Galluzzo v. Holder, 633 F.3d 111 (2d Cir. 2011) ( Second Circuit on waiver validity for a VWP entrant)
- Handa v. Clark, 401 F.3d 1129 (9th Cir. 2005) (presumption and due process considerations in VWP context)