FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAMBIZ MOMENI, 

Petitioner-Appellant,

v.

MICHAEL CHERTOFF, Secretary,

United States Department of

Homeland Security; JULIE L.

MYERS, Assistant Secretary for US

Immigration and Customs No. 07-55018

Enforcement, United States

D.C. No. Department of Homeland Security;  CV-06-05675-SGL JOHN P. TORRES, Acting Director,

Office of Detention and Removal, OPINION

US Immigration and Customs

Enforcement; JAMES T. HAYES,

District Director, Los Angeles

District Office, Detention and

Removal Operations, US

Immigration and Customs

Enforcement; KENNETH COX,

Respondents-Appellees. 

Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

July 12, 2007—Pasadena, California

Filed March 31, 2008

Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld,

and Richard C. Tallman, Circuit Judges.

3283
Opinion by Judge Kleinfeld

3284 MOMENI v. CHERTOFF
COUNSEL

Lori B. Schoenberg, Reeves and Associates, A PLC, Pasadena, California, for the appellant. 

Thomas K. Buck, Assistant U.S. Attorney, Los Angeles, California, for the appellees. 

OPINION

KLEINFELD, Circuit Judge: 

We consider whether a traveler to the United States under

the Visa Waiver Program may contest deportation pending an

application for adjustment of status. Momeni argues that

under Freeman v. Gonzales1 the “no contest” provision2 of the

90-day tourist program does not apply to him, because he has

since filed (and has pending) an application for adjustment of

status, based on his marriage to a United States citizen. 

1

444 F.3d 1031 (9th Cir. 2006). 

2

8 U.S.C. § 1187(b). 

MOMENI v. CHERTOFF 3285
Facts

Momeni is a German citizen. He came to the United States

as a tourist on November 30, 2005. Under a pilot program that

Congress created, citizens of certain countries can come to the

United States as tourists for 90 days or less without visas.3

Various conditions have to be satisfied by the country (e.g.,

a reciprocal program4) and the tourist (e.g., a round-trip

ticket5). To get the government waiver of the usual visa

requirement, the tourist has to sign a waiver of his or her own

right to contest removal other than on the basis of asylum.6

Momeni did not go back to Germany by March 1, which

was 90 days after he entered the United States. On April 11,

2006, he married a United States citizen. In July, Momeni was

taken into custody for violating the conditions of his admission under the Visa Waiver Program, and given notice that he

was to be removed. In September, Momeni and his wife

applied to adjust Momeni’s status. His removal has been

stayed pending disposition of this case. Because there are no

administrative proceedings available for entrants under the

Visa Waiver Program except on the basis of asylum, he

sought none, and instead petitioned for a writ of habeas corpus in district court. The district court dismissed the petition

on the ground that it lacked jurisdiction, and he appealed. 

3

See 8 U.S.C. § 1187. 

4

See 8 U.S.C. § 1187(a)(2). 

5

See 8 U.S.C. § 1187(a)(8). 

6

See 8 U.S.C. § 1187(b). Under the Visa Waiver Program, an alien may

enter the United States without a visa for a period of 90 days. An alien

who enters under this program waives any right “(1) to review or appeal

under this [Act] of an immigration officer’s determination as to the admissibility of the alien at the port of entry into the United States, or (2) to contest, other than on the basis of an application for asylum, any action for

removal.” Id.

3286 MOMENI v. CHERTOFF
Analysis

I. Jurisdiction 

[1] The district court correctly ruled that it did not have

jurisdiction. In Iasu v. Smith,

7

 we held that, for habeas petitions filed after the effective date of the REAL ID Act, a “district court plainly lack[s] habeas jurisdiction” over challenges

to removal orders.8 Congress amended 8 U.S.C. § 1252(a)(5)

in the REAL ID Act to provide that “a petition for review

filed with an appropriate court of appeals in accordance with

this section shall be the sole and exclusive means for judicial

review of an order of removal entered or issued under any

provision of this [Act].” 

The scope of our own jurisdiction is arguable, but in order

to avoid the constitutional argument raised by Momeni that

the REAL ID act could not deprive the courts of habeas jurisdiction without violating the Suspension Clause,9

 we assume

for purposes of this decision that we have jurisdiction.10

II. Merits 

[2] Momeni entered the United States under the Visa

Waiver Program, a special program for tourists from 27 countries.11 The Visa Waiver Program allows tourists to enter the

United States “for 90 days or less” from the designated countries without visas.12 To do so, they must waive “any right . . .

7

511 F.3d 881 (9th Cir. 2007). 

8

Id. at 888. 

9U.S. Const. art I, § 9, cl. 2. 

10See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001). 

11Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland,

France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San

Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United

Kingdom. See 8 C.F.R. § 217.2. 

128 U.S.C. § 1187(a). 

MOMENI v. CHERTOFF 3287
to contest, other than on the basis of an application for asylum, any action for removal.”

13 Momeni has not sought asylum from Germany. That, basically, is the end of the case. 

In Freeman, the alien married the United States citizen

before entering the Visa Waiver Program and sought an

adjustment of status within the 90 days she could stay. But

she was thwarted from adjusting her status by the subsequent

death of her husband in a car accident, shortly before their

first wedding anniversary. We noted that there are “likely to

be a small percentage of VWP entrants in Mrs. Freeman’s position,”14 a very sympathetic one, and held that in that case the

adjustment of status statute superseded the no contest provision.15

[3] None of the relevant circumstances of Freeman pertain

here. Freeman married before the 90 days expired (and before

the particular trip to the United States), whereas Momeni married after his 90 days expired; Freeman applied for adjustment

of status during the 90 days, whereas Momeni applied after

the 90 days expired. These distinctions disqualify Momeni

from circumventing the Visa Waiver Program’s no contest

clause by means of adjustment of status. 

We characterized this no contest clause in Handa v. Clark16

as “the linchpin of the [Visa Waiver] program, which assures

that a person who comes here with a VWP visa will leave on

time and will not raise a host of legal and factual claims to

impede removal if he overstays.”

17 Freeman was an exception

because she was eligible to adjust her status at time she

arrived, under 8 U.S.C. § 1254, she applied within her 90

138 U.S.C. § 1187(b). 

14Freeman, 444 F.3d at 1036 n.9. 

15Id. at 1037. 

16401 F.3d 1129 (9th Cir. 2005). 

17Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005). 

3288 MOMENI v. CHERTOFF
days, and she would have obtained her adjustment of status

but for her husband’s death. Momeni, though, doesn’t fall

within this narrow exception. 

[4] If a Visa Waiver Program entrant does not leave when

the 90 days expires, life in the United States goes on. It may

go on for many years before the alien comes to the government’s attention. There are legal means by which aliens may

marry United States citizens, obtain visas, and obtain adjustment of status, but overstaying the 90 days for tourists in the

Visa Waiver Program is not among them. If it were, our comment in Freeman that there are “likely to be a small percentage of VWP entrants in Mrs. Freeman’s position”

18 would not

be correct. 

We agree with the Tenth Circuit in Schmitt v. Maurer,

19 that

to allow an adjustment of status petition after the 90 days has

expired would create an avoidable conflict between the

adjustment of status statute and the no contest statute. Where

an appellate court can construe two statutes so that they conflict, or so that they can be reconciled and both can be

applied, it is obliged to reconcile them.20 An alien who comes

to the United States under the Visa Waiver Program generally

cannot avoid his or her waiver of the right to contest removal

(other than on the basis of asylum). Freeman is a narrow

exception to the rule, but Momeni doesn’t fall within this

exception 

AFFIRMED. 

18Freeman, 444 F.3d at 1036 n.9. 

19451 F.3d 1092 (10th Cir. 2006). 

20See, e.g., Cal. ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v.

United States, 215 F.3d 1005, 1012 (9th Cir. 2000) (“Of course, it is a well

established axiom of statutory construction that, whenever possible, a

court should interpret two seemingly inconsistent statutes to avoid a potential conflict.”). 

MOMENI v. CHERTOFF 3289