In the
    United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 07-1069
MOHAMMED BAYO,
                                                         Petitioner,
                                v.

MICHAEL CHERTOFF, Secretary of Homeland Security,Œ
                                                        Respondent.
                         ____________
               Petition for Review of an Order of the
                Department of Homeland Security.
                         ____________
         ARGUED JULY 8, 2008—DECIDED AUGUST 1, 2008
                         ____________


    Before BAUER, COFFEY, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. 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



Œ
  Because Bayo petitions for review of an order of the Depart-
ment of Homeland Security, we have substituted the Secretary
of Homeland Security, Michael Chertoff, as the named respon-
dent.
2                                                   No. 07-1069

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 Depart-
ment of Homeland Security (DHS) ordered his removal
after he overstayed his allotted 90 days. Bayo seeks re-
view 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 con-
sidering 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 peti-
tion 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.


                         Background
  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.1 Bayo submitted his signed VWP



1
  For removal purposes, aliens who enter the United States
under the VWP by presenting a fraudulent passport bind
themselves to the program to the same extent as aliens who are
legitimate citizens of VWP nations. See Zine v. Mukasey, 

, 542-43 (8th Cir. 2008); see also 8 C.F.R. § 217.4(a)(1).
The government has not argued that by presenting a fraud-
ulent passport, Bayo disqualified himself from challenging
the validity of the waiver, and so that issue has been waived.
No. 07-1069                                                 3

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 signa-
ture are largely illegible and so we quote from the gov-
ernment’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 Enforce-
ment 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.
4                                                No. 07-1069

                          Analysis
  Bayo makes two arguments on appeal: first, that as a
matter of due process, the waiver is unenforceable be-
cause he did not knowingly consent to it, and second,
that even if the waiver is enforceable he cannot be re-
moved 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, 

, 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 juris-
diction, see Kircher v. Putnam Funds Trust, 

, 644
(2006); Morales-Morales v. Ashcroft, 

, 421 (7th
Cir. 2004), and so we may examine whether the
waiver validly bars us from reaching Bayo’s claim. See
Wigglesworth v. INS, 

, 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,

(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
No. 07-1069                                                5

the United States under the VWP, and she petitioned to
adjust her status before her 90-day visit expired. See

. 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, 

, 1097 (9th Cir. 2008); 

;
Schmitt v. Maurer, 

, 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 

.
  The only issue available for our review, then, is whether
Bayo unknowingly, and therefore invalidly, 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.,
6                                                 No. 07-1069

Zadvydas v. Davis, 

, 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 perma-
nent”). 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, 

, 974 (7th Cir. 2007) (holding that
due process requires that aliens receive a meaningful
opportunity to be heard in deportation proceedings);
Kerciku v. INS, 

, 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., 

, 79 (5th Cir. 1993); see also Brewer
v. Williams, 

, 404 (1977) (defining waiver as
“an intentional relinquishment or abandonment of a
known right”); United States v. Van Waeyenberghe, 

, 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 

; see also 

-20 (upholding waiver where petitioner
did not claim waiver was unknowing or involuntary);
Ferry v. Gonzales, 

, 1128-29 (10th Cir. 2006)
(noting that aliens facing deportation are entitled to due
process but denying petitioner hearing because he had
No. 07-1069                                              7

not disputed that his waiver was knowing and volun-
tary). In Wigglesworth, however, we had the benefit of a
full administrative record and factual findings. See Wig-

. The reason a record existed
was that the case was an anomaly: the former INS errone-
ously began removal proceedings before an IJ and only
later realized that the alien had waived her right to those
proceedings under the VWP. 

moved to termi-
nate the proceedings, and the alien responded by chal-
lenging the validity of her waiver before both the IJ and
the Board of Immigration Appeals. 

ad-
ministrative 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. 

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 ad-
mitted to the United States and therefore his waiver,
which he signed before his technical entry, need not
have been knowing and voluntary. Put less euphemisti-
cally, 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,

(1950) and United States v. Verdugo-Urquidez,

(1990) to support its claim that extraterri-
8                                               No. 07-1069

torial aliens have no constitutional rights. To begin with,
neither case is precisely on point because they both in-
volved 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 

; cf. Rasul v.
Bush, 

, 475-76 (2004) (distinguishing Eisentrager
and observing that its specific facts were crucial to its
constitutional outcome). And Verdugo-Urquidez held that
the Fourth Amendment did not govern a search by Ameri-
can authorities in Mexico of the home of a Mexican
citizen. See 

.
   Second, the Supreme Court has just recently held
(for the first time, the Court acknowledged) that the
Constitution reaches aliens technically outside the United
States but within territory it exclusively controls. See
Boumediene v. Bush, 

(2008). Both parties
submitted their briefs before the Supreme Court decided
Boumediene, and therefore they lacked the benefit of the
Boumediene court’s analysis. Nonetheless Boumediene
suggests that Bayo, as an alien technically outside the
country’s border when he submitted his waiver to border
agents, enjoyed some constitutional protections against
arbitrary government action. In Boumediene, the Supreme
Court specifically rejected the government’s position
that the Constitution had no extraterritorial effect, ob-
serving that “even when the United States acts outside
its borders, its powers are not ‘absolute and unlimited’
but are subject ‘to such restrictions as are expressed in the
Constitution.’ ” 

(quoting Murphy v. Ramsey, 

, 44 (1885)). It concluded that even noncitizens
detained by the United States outside the country but in
No. 07-1069                                                  9

territory exclusively under American control receive the
constitutional right to challenge the government’s ac-
tions. 

  This case is more like Boumediene than Eisentrager: the
government here contends that the Constitution cannot
reach aliens at a port of entry that is physically within
United States territory and under its exclusive control
but, by virtue of a legal fiction, outside our borders. See,
e.g., Shaughnessy v. United States ex rel. Mezei, 

,
213-15 (1953) (recognizing “entry fiction” doctrine that
alien seeking admission has not entered the United States
even if alien is physically within American borders);
Atunnise v. Mukasey, 

, 838-39 (7th Cir. 2008)
(collecting cases). But Boumediene holds that even alien
enemy combatants detained outside the United States
but in territory under its control enjoy constitutional
rights. That holding undermines the government’s con-
tention that Bayo, an alien noncombatant, enjoyed no
constitutional protection even though he was physically
within United States territory in Newark when the gov-
ernment received his waiver.
  What is more, even before Boumediene, courts of appeals
recognized that aliens not yet admitted or otherwise
excludable, but physically on American soil, have some
constitutional rights. See, e.g., Wong v. United States, 

, 970-74 (9th Cir. 2004) (collecting cases and noting
that entry fiction does not exclude nonadmitted aliens from
all constitutional coverage). Courts have found that
nonadmitted aliens possess rudimentary substantive due
process rights, see Chi Thon Ngo v. INS, 

, 396
(3d Cir. 1999), such as the right to humane treatment, see
Martinez-Aguero v. Gonzalez, 

, 623 (5th Cir.
2006) (discussing Lynch v. Cannatella, 

, 1373-
10                                            No. 07-1069

74 (5th Cir. 1987)). The government does not explain how
it can obtain involuntary or unknowing waivers (i.e.,
coerced and uninformed) humanely.
  The government also ignores that Bayo’s waiver was
prospective and reached forward to the time period after
he was undisputably admitted into the United States. The
distinction between “an alien who has effected an entry
and one who has never entered runs throughout immigra-
tion law.” 

. While the government
is correct that an alien in detention at a port of entry
is not technically within the United States, see 

, the government’s analysis treats Bayo
as though he were still at the border today, instead of
within the United States, where he unquestionably
enjoys constitutional protections against removal. See

(holding that once an alien
enters the country, the Due Process Clause applies).
  The government insists that all that is required for
Bayo’s waiver to be enforceable is that he was admitted
under the VWP and that his signature appears on the
waiver form. But this implies that, by the simple ex-
pedient of coercing or misleading an alien outside the
United States into signing an authentic but unknowing
and involuntary waiver, the government could get aliens
to waive all rights that they would otherwise acquire
once within the country. On this theory, the government
could, for instance, force enemy combatants captured
on foreign soil and brought to an American port of entry
to waive all due-process or habeas-corpus rights and
thereby circumvent the outcome of cases like Boumediene,
so long as the signatures are real.
  The government could have argued, but does not,
that under well-established principles of contract law,
No. 07-1069                                                 11

we may presume that Bayo’s waiver of rights was
knowing and voluntary as a matter of law because he
affixed his signature to the waiver. See, e.g., Dugan v. R.J.
Corman R.R. Co., 

, 667 (7th Cir. 2003) (noting
that there is no “I didn’t read it” defense to breach of
contract); Paper Express, Ltd. v. Pfankuch Maschinen, 

, 757 (7th Cir. 1992) (applying fundamental princi-
ple that a person who signs a contract is presumed to
know its terms to enforce contract against non-German-
speaking party even though rules incorporated in con-
tract by reference were written in German). As a general
rule, a competent person who signs a contract is held to
its terms, even if it is in a different language and even if
he later claims not to have understood it, so long as the
other party has not resorted to fraud or coercion. See Paper

. But more is required for a valid
waiver of constitutional rights than for an enforceable
contract. See Pierce v. Atchison Topeka & Santa Fe R.R. Co.,

, 438 (7th Cir. 1997) (observing that waivers
of federal rights cannot be governed solely by contract
law); see also United States v. Bownes, 

, 637 (7th
Cir. 2005) (discussing, in criminal context, due process
protections in excess of ordinary contract law principles
for waivers of constitutional rights). A waiver is an inten-
tional relinquishment of a known right, which means
that it must be voluntary and knowing. United States v.
Olano, 

, 733 (1993). Moreover, courts “indulge
every reasonable presumption against waiver of funda-
mental constitutional rights.” Johnson v. Zerbst, 

,
464 (1938) (internal quotation marks and citations omitted);
United States v. Cooper, 

, 418 (7th Cir. 2001). A
signature accompanying a waiver of federal rights is
therefore not enough; rather, there must be reason beyond
the signature alone to believe that the waiver is knowing
12                                            No. 07-1069

and voluntary. See, e.g., Domka v. Portage County, 

, 781-82 (7th Cir. 2008) (looking beyond sig-
nature on waiver to assess whether plaintiff understood
what he had signed).
  It is also worth noting that the government does not take
a more moderate stance: it does not argue, for instance,
that even if due process prevents it from tricking or
coercing a waiver, the Constitution does not prohibit it
from enforcing a waiver that it did not intend to be unin-
formed. It might have argued that Bayo does not con-
tend that the government set out to confuse or coerce
him, and therefore it did not violate due process in having
him sign the English-language form. Even had the gov-
ernment taken this position, however, due process would
nonetheless require that the government take steps rea-
sonably designed to assure that the waiver is knowing
and voluntary. Indeed, in those cases where VWP
waivers have been found knowing and voluntary, the
government has taken precisely such steps: it has provided
the petitioner a waiver in his or her spoken language, and
from this a fact-finder could infer that the petitioner
understood the waiver. See 

(noting that alien signed Swedish-language waiver);

, 80 n.8 (observing that alien who
spoke both English and Japanese had signed English
waiver on some trips and Japanese waiver on another). But
here, because there has been no fact-finding hearing, we
have no basis for concluding that the government took
even that modest step. Without evidence that it offered
Bayo a waiver in his native French tongue, the govern-
ment is left to contend that because he answered “no” to
compound English-language questions posed to him on
the waiver, he must have understood the entire waiver.
No. 07-1069                                             13

But whether he understood the waiver is a factual ques-
tion, and no fact-finder has yet answered it, even
assuming that answers on these forms indicate language
fluency. Cf. 

(holding that
answers to compound questions in DHS forms can be
meaningless).
  The government warns that if we conclude that Bayo’s
waiver must be knowing and voluntary, we will unleash
an avalanche of challenges to VWP waivers that will
overwhelm the judiciary and jeopardize international
relations. But it has been fifteen years since the Fifth
Circuit, a border circuit, concluded that VWP waivers
must be knowing and voluntary. See 

. If
a due process requirement would, as the government
contends, cause “millions of aliens to use the VWP as a
vehicle for gaining quick and easy admission to the
United States” only to then “disavow” their waivers,
presumably there would be some evidence that the Fifth
Circuit has faced this dilemma. Instead, we could find no
published Fifth Circuit cases after Nose addressing the
validity of an alien’s VWP waiver, and the government
has not directed us to any additional authority to sup-
port its doomsday prediction.
  The government finally contends that even if due
process requires that VWP waivers are knowing or vol-
untary, Bayo has suffered no harm. According to the gov-
ernment, Bayo is in precisely the same position he
would have occupied had his waiver been knowing and
voluntary—removal without a hearing. Moreover, con-
tinues the government, if Bayo had been told what he
was signing and thus refused to sign the waiver, he
would have been denied admission; he was actually
admitted for 90 days, and so any “error inured to his
14                                              No. 07-1069

benefit.” But the government ignores the possibility that,
if it had denied Bayo VWP admission, he could have
obtained a visa through ordinary consular channels. He
then could have entered the United States, become eligible
to adjust his status based on his marriage, and con-
tested his removal at a hearing on the basis of his
adjustment-of-status petition. See 8 U.S.C. § 1255; 8 C.F.R.
§ 245.2. But by seeking to enforce a waiver that Bayo
says he did not understand, the government is depriving
him of a chance to adjust his status and contest his re-
moval on that ground. He has therefore been harmed.
  In light of Boumediene and jurisprudence from the
courts of appeals permitting limited extraterritorial appli-
cation of the Constitution, we adopt the view that we
assumed in Wigglesworth, and that the Fifth Circuit en-
dorsed in Nose, that waivers of rights under the VWP must
be knowing and voluntary. By so doing, we adhere to
the longstanding general principle that waivers of con-
stitutional rights must be knowing and voluntary. See Van

; see also Castillo v. United
States, 

, 445-46 (7th Cir. 1994) (holding involun-
tary a defendant’s waiver of his constitutional right to
separate counsel from codefendant where waiver was
not translated into Spanish and there was insufficient
evidence in record to show that defendant knew enough
English to understand the waiver).
  This case reaches us in an unusual posture—no immigra-
tion judge has ever heard Bayo’s claim that his waiver
was unknowing, and he petitions directly from DHS’s
order of removal. The government urges us to act as fact-
finder and find that his waiver was knowing. But we sit as
a court of review and there is no developed record to
review. That is why we asked the parties to address in
No. 07-1069                                               15

supplemental briefs where Bayo’s hearing on the validity
of his waiver should occur on remand. We specifically
ordered that the parties consider the relative merits of
(1) remanding to the Board of Immigration Appeals with
instructions to send the case to an immigration judge,
(2) remanding to DHS (which currently has no
adjudicatory procedures in place), and (3) appointing a
special master under Federal Rule of Appellate Procedure
48 to conduct a limited fact-finding hearing for us. See
Rafaelano v. Wilson, 

, 1098 (9th Cir. 2006); 

(Rawlinson, J., dissenting).
  In response, Bayo suggests that we remand his case to an
immigration judge, while the government asks that we
send the case back to DHS so that the agency can decide
how to adjudicate VWP waiver challenges. The govern-
ment reports that the immigration courts “never have
any role in a VWP case” (unless the alien seeks asylum)
and that “VWP adjudications are conducted entirely by
the Department of Homeland Security, without any
involvement by the Department of Justice.” Because as a
general rule courts should leave administrative
agencies free to develop their own procedures, see
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def.
Council, Inc., 

, 543 (1978); Johnson v. Gonzales,

, 799 (7th Cir. 2007), and because according
to the government the immigration courts have limited
experience with VWP waivers, we adopt the govern-
ment’s suggestion and remand to DHS for the agency
to fashion adjudicatory procedures consistent with due
process.
16                                         No. 07-1069

                     Conclusion
  Because Bayo is entitled to a hearing in which he may
challenge his waiver, we grant his petition for review
and remand to DHS for a fact-finding hearing on the
issue of whether he knowingly and voluntarily waived
his due process rights.