Petition for Review of an Order of the Department of Homeland Security.
The opinion of the court was delivered by: Rovner, Circuit Judge
Before BAUER, COFFEY, and ROVNER, Circuit Judges.
Mohammed Bayo, a citizen of Guinea, used a stolen Belgian passport to enter the United States in 2002 under the Visa Waiver Program (VWP). The VWP allows citizens of participating countries to visit the United States for 90 days without a visa so long as the visitors agree to waive the right to contest removal proceedings (other than through an application for asylum). See 8 U.S.C. § 1187. Bayo received such a waiver in English, which is not his native language, and relying on his signature on the waiver, the Department of Homeland Security (DHS) ordered his removal after he overstayed his allotted 90 days. Bayo seeks review of the administrative removal order, arguing that his waiver is not enforceable because as a non-English speaker he did not understand the document. In considering an issue of first impression in this circuit, but consistent with the ruling of the only other circuit to consider the matter in a published decision, we hold that a waiver under the VWP is valid only if entered into knowingly and voluntarily. We therefore grant the petition for review and remand to DHS for a hearing on the factual issue whether Bayo knowingly and voluntarily waived his right to a removal hearing.
Belgium, like the United States, is a participant in the VWP, see 8 C.F.R. § 217.2(a), although Bayo's native country of Guinea is not.*fn2 Bayo submitted his signed VWP waiver while entering the United States at Newark airport on July 12, 2002. The waiver stated in English that Bayo waived the right "to review or appeal of an immigration officer's determination as to [his] admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation." The waiver also contained a clause, again in English, providing that Bayo had read and understood the form and that he had answered its questions truthfully. (We attach to this opinion a copy of Bayo's waiver; it and Bayo's signature are largely illegible and so we quote from the government's description of its contents and the standard form.)
Bayo remained in the United States beyond the 90-day stay authorized by the VWP and eventually settled in Indianapolis, where he married a United States citizen. Based on the marriage, Bayo and his wife applied in 2006 to adjust his status to that of legal permanent resident. Shortly thereafter, Immigration and Customs Enforcement investigators learned that Bayo had entered the country using a stolen Belgian passport. Department of Homeland Security officers consequently arrested Bayo, who admitted that he was in the country illegally and handed over the Belgian passport. DHS concluded that Bayo had overstayed his 90-day admission under the VWP, and in light of his signed waiver, ordered his removal. The order stated that Bayo was entitled to remain in the United States only until October 11, 2002, and that he had "remained in the United States longer than authorized." Bayo received no removal hearing. Consequently, he was not permitted to contest removal based on his petition to adjust his status or his claim that he did not knowingly sign the hearing waiver.
Bayo makes two arguments on appeal: first, that as a matter of due process, the waiver is unenforceable because he did not knowingly consent to it, and second, that even if the waiver is enforceable he cannot be removed while his adjustment-of-status application is pending. As an initial matter, we must first determine whether we have jurisdiction over Bayo's claims. Although federal courts of appeals generally have jurisdiction to review final orders of removal, see 8 U.S.C. § 1252(a)(5), the VWP waiver strips us of jurisdiction over non-asylum challenges to the removal of a VWP alien. See Lacey v. Gonzales, 499 F.3d 514, 518 (6th Cir. 2007); see also 8 U.S.C. § 1187(b)(2). Bayo claims that he is not subject to this jurisdictional bar because as a non-English speaker he did not validly waive his right to a removal hearing and appellate review.
We, of course, have jurisdiction to determine our jurisdiction, see Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 (2006); Morales-Morales v. Ashcroft, 384 F.3d 418, 421 (7th Cir. 2004), and so we may examine whether the waiver validly bars us from reaching Bayo's claim. See Wigglesworth v. INS, 319 F.3d 951, 959-60 (7th Cir. 2003) (examining whether alien's VWP waiver deprived the court of jurisdiction). But if the waiver is valid, Bayo's alternative argument-that he has petitioned to adjust his status-cannot postpone his removal. Bayo points to a Ninth Circuit decision to support his position that the status-adjustment statute in effect overrides the VWP's waiver-of-hearing provision. See Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006); see also 8 U.S.C. § 1255(a); 8 U.S.C. § 1187(b)(2). But in Freeman, unlike here, the alien married an American citizen before she entered the United States under the VWP, and she petitioned to adjust her status before her 90-day visit expired. See Freeman, 444 F.3dat 1032-33. More importantly, the Ninth Circuit has recently joined the Sixth and Tenth Circuits in holding that permitting a VWP alien to adjust his status after his 90-day stay has expired, as Bayo seeks here, would create an avoidable conflict between the no-contest provision of the VWP program and the adjustment-of-status statute. See Momeni v. Chertoff, 521 F.3d 1094, 1097 (9th Cir. 2008); Lacey, 499 F.3d at 519; Schmitt v. Maurer, 451 F.3d 1092, 1096 (10th Cir. 2006). Even if we were to adopt the Freeman standard as Bayo asks, it represents a narrow exception, inapplicable here, to the general rule that VWP aliens who have validly waived their right to a removal hearing are entitled only to asylum proceedings, and it cannot help Bayo circumvent the VWP waiver's jurisdictional bar. See Momeni, 521 F.3d at 1097.
The only issue available for our review, then, is whether Bayo unknowingly, and therefore invalidity, waived his right to a hearing and appellate review. In his brief, Bayo claims that he could not understand the waiver because it was in English and he speaks only French, the primary language spoken in Guinea. Bayo also says that he has not completed high school, had not traveled internationally before he arrived in Belgium, and did not consult with an attorney before signing the waiver. Because of his limited education and travel experience, and because the waiver was not translated into his spoken language, Bayo argues that he did not knowingly waive his right to a hearing.
As a general rule, deportable aliens within the United States are entitled to due process protections. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (holding that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent"). These protections include the right to challenge the government's claim that it can summarily remove an alien found within the United States. See Floroiu v. Gonzales, 481 F.3d 970, 974 (7th Cir. 2007) (holding that due process requires that aliens receive a meaningful opportunity to be heard in deportation proceedings); Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir. 2003) (same). Applying these principles to VWP waivers, the Fifth Circuit has held that due process requires that a waiver under the VWP must be knowing and voluntary. Nose v. Att'y Gen., 993 F.2d 75, 79 (5th Cir. 1993); see also Brewer v. Williams, 430 U.S. 387, 404 (1977) (defining waiver as "an intentional relinquishment or abandonment of a known right"); United States v. Van Waeyenberghe, 481 F.3d 951, 957 (7th Cir. 2007) (waivers of constitutional rights must be knowing and voluntary).
Most circuits, including our own, have not yet faced this specific issue squarely as the Fifth Circuit did in Nose. In our only case involving a challenge to the validity of a VWP waiver, we assumed without deciding that due process requires a knowing and voluntary waiver, and ruled that the record had established that the alien had knowingly and voluntarily waived her right to a hearing. See Wigglesworth, 319 F.3d at 959-60; see also Lacey, 499 F.3d at 519-20 (upholding waiver where petitioner did not claim waiver was unknowing or involuntary); Ferry v. Gonzales, 457 F.3d 1117, 1128-29 (10th Cir. 2006) (noting that aliens facing deportation are entitled to due process but denying petitioner hearing because he had not disputed that his waiver was knowing and voluntary). In Wigglesworth, however, we had the benefit of a full administrative record and factual findings. See Wigglesworth, 319 F.3d at 953. The reason a record existed was that the case was an anomaly: the former INS erroneously began removal proceedings before an IJ and only later realized that the alien had waived her right to those proceedings under the VWP. Id. The INS moved to terminate the proceedings, and the alien responded by challenging the validity of her waiver before both the IJ and the Board of Immigration Appeals. Id. Because the administrative record showed that the waiver was knowing and voluntary, we did not have to reach the specific constitutional question that the Fifth Circuit answered in Nose. Id. at 959-60. By contrast, in this case we cannot review administrative findings regarding Bayo's claim that he did not knowingly waive his right to challenge his removal because there are none. We are thus faced squarely with the issue left undecided in Wigglesworth: does due process require that an alien's waiver under the VWP must be knowing and voluntary?
The government argues "no," based on the belief that Bayo enjoyed no constitutional rights before he was admitted to the United States and therefore his waiver, which he signed before his technical entry, need not have been knowing and voluntary. Put less euphemistically, the government's position, if correct, would mean that before an alien enters the country, the Constitution does not prevent it from confusing, tricking or coercing that alien into signing a waiver. The government points to the Supreme Court's decisions in Johnson v. Eisentrager, 339 U.S. 763 (1950) and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) to support its claim that extraterri- torial aliens have no constitutional rights. To begin with, neither case is precisely on point because they both involved government conduct on foreign soil. Eisentrager held that an enemy combatant convicted by a military commission and held outside the United States did not have the right to bring habeas corpus proceedings in federal court. See Eisentrager, 339 U.S. at 777; cf. Rasul v. Bush, 542 U.S. 466, 475-76 (2004) (distinguishing ...