Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. Mar. 31, 2008) (persons who entered the United States under the Visa Waiver Program, who marry and apply for Adjustment of Status after their 90 days have elapsed, cannot obtain removal proceedings before being removed, and are ineligible to adjust status), distinguishing Freeman v. Gonzales, 1444 F.3d 1031 (9th Cir. 2006).



This may not prohibit AOS by all out-of-status VWP entrants. It might only apply to those that ICE finds and decides to deport. The last two paragraphs of the decision, discussing this, appear to be dictum, because they go beyond the facts presented, which involve a VWP overstay whom ICE found and wanted to deport, and who then raised a defense to removal in the form of AOS. The "no contest" clause in INA 217(b) applies when DHS seeks to remove a VWP violator. If DHS is not seeking removal, then a VWP overstay can adjust status under INA 245(c) as an immediate relative. Under Momeni, if AOS is denied, the person will then be removed instead of put in proceedings. Thanks to Debbie Smith.