02-1209 Wigglesworth v. INS

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“In [Nose v. Attorney Gen., 993 F.2d 75 (5th Cir. 1993), the Fifth Circuit considered the validity of Nose’s waiver pursuant to the VWPP. It began its analysis by observing that ‘[g]enerally, even aliens who have entered the United States unlawfully are assured the protection[] of the fifth amendment due process clause, including the right to a hearing before an immigration judge before being deported.’ Id. at 78-79 (internal quotation marks and citations omitted). Furthermore, it continued, ‘[a]lthough due process rights may be waived, such a waiver must be made knowingly and voluntarily.’ Id. at 79 (internal citations omitted). The Fifth Circuit then looked to three primary factors to determine whether Nose’s waiver had been made knowingly: ‘(1) the party’s background and experience; (2) the clarity of the written waiver agreement; and (3) whether the party was represented by or consulted with an attorney.’ Id. Applying these factors, the Fifth Circuit rejected the due process argument because Nose was highly educated, the written waiver was very clear and Nose had consulted with counsel prior to entering the country through the VWPP. See id. at 80.

“Ms. Wigglesworth argues that the standards set forth in Nose should be applied to evaluate her waiver and, under those standards, this court cannot conclude that her waiver was knowingly made. We disagree. Assuming that the knowing and voluntary standard applies to Ms. Wigglesworth’s waiver, we do not believe that the Nose factors suggest that Ms. Wigglesworth’s waiver was constitutionally infirm. Ms. Wigglesworth had a high school education, had owned her own business and had traveled extensively earlier in her life. As well, the waiver form was exceptionally clear that, in signing the form, Ms. Wigglesworth was waiving her rights to a hearing before an IJ, an administrative appeal to the BIA and judicial review of the administrative decision. Even in the absence of consultation with an attorney, we do not believe that these factors call into question the validity of Ms. Wigglesworth’s waiver.”

Dismissed.

Petition for Review of an Order of the Board of Immigration Appeals, Ripple, J.