Understanding the Visa Waiver Program: Waivers, Overstays, and Due Process Rights
Bingham v. Holder, 637 F.3d 1040 (9th Cir. 2011).
Substance of the Case:
Bingham v. Holder, 637 F.3d 1040 (9th Cir. 2011).
This case explains the rules and consequences of the Visa Waiver Program (VWP) for foreign nationals visiting the U.S. The VWP allows travelers from certain countries to enter the U.S. without a visa for a short stay, typically up to 90 days. However, to use the program, travelers must waive their right to contest removal (deportation), except in cases of asylum. This case focuses on a traveler, Peter Bingham, who overstayed his VWP entry, was removed by immigration authorities without a hearing, and later argued that his waiver of rights was invalid and unconstitutional.
Outcome:
- The court upheld the removal order, ruling that Bingham’s waiver of rights was valid and enforceable.
- The waiver, signed as part of the VWP, was sufficient to prevent him from contesting his removal in court.
- The court also rejected claims that the waiver violated constitutional rights, noting that Bingham chose to enter under the VWP and could have sought a visa if he did not want to waive his rights.
Facts
Background:
- Peter Bingham, a U.K. citizen, entered the U.S. under the Visa Waiver Program (VWP) in March 2007.
- The VWP permits short-term visits without a visa in exchange for waiving certain legal rights.
- He overstayed the 90-day limit by more than a year and was apprehended in December 2008.
Enforcement of VWP Terms:
- Bingham was ordered removed without a hearing, consistent with the VWP rules.
- DHS based its decision on the waiver of rights he signed upon entry.
- Bingham argued that the waiver was invalid and unconstitutional.
Court Review:
- The Ninth Circuit reviewed whether the waiver Bingham signed was valid and enforceable.
- It also examined whether the removal violated his rights.
Analysis
Visa Waiver Program Requirements:
- The VWP allows citizens of designated countries to visit the U.S. without a visa but requires them to:
- Waive their right to contest removal, except for asylum.
- Leave within the allowed time (usually 90 days).
Bingham’s Arguments:
- Waiver Language: He argued that the waiver language was unclear and insufficient to inform him of his rights.
- Contract Principles: He claimed the waiver was unenforceable under contract law because he only saw it upon arrival in the U.S.
- Constitutional Issues: He argued the waiver violated due process rights and was an unconstitutional condition of entry.
Court’s Reasoning:
- Validity of Waiver: The court found the language of the waiver clear and adequate. By signing the waiver, Bingham agreed to forego contesting removal, except for asylum.
- Contractual Principles: The court ruled that Bingham knowingly signed the waiver and benefited from the VWP, which required him to adhere to its terms.
- Constitutional Claims: The court held that Bingham could have sought a visa if he did not wish to waive his rights. The waiver’s conditions were rationally related to the benefits of streamlined entry.
- No Prejudice: Even if the waiver were invalid, Bingham failed to show that he would have achieved a different result in removal proceedings.
Conclusion:
Bingham’s removal under the Visa Waiver Program was upheld because:
- The waiver of rights he signed was valid and enforceable.
- His constitutional and contractual arguments were rejected.
- The program’s structure—allowing easy entry but limiting legal recourse—was deemed reasonable and necessary to maintain its efficiency.
Key Takeaways for Non-Legal Experts:
- Understand the Terms: Travelers using the VWP must adhere strictly to its conditions, including waiving the right to contest removal unless applying for asylum.
- Overstays Have Consequences: Staying beyond the permitted time can lead to removal without the opportunity to appear before an immigration judge.
- Choose Wisely: If you want the option to contest removal, you must enter the U.S. with a visa rather than under the VWP.
Let’s Get Started
Your legal challenges deserve personalized attention and innovative solutions. Contact Oware Justice Advocates PC today for a consultation and take the first step toward resolution and peace of mind.
355 South Teller Street, Suite 204,
Lakewood, CO 80226
(Visits to the office are strictly by appointment only)
303-514-6589
