In 2004, Heathcliffe Bradley was planning to return to his native New Zealand after eight years in the United States when he met Cheryl Losee, a New Jersey native, and his plans flew out the window. He stayed, they married, and then he turned his attention to a lingering problem: Mr. Bradley was an illegal immigrant.
But what seemed to them a straightforward process to make Mr. Bradley a legal resident soon turned into a bureaucratic and legal nightmare. Last month Mr. Bradley, a construction worker who says he has no criminal record in either the United States or New Zealand, was hauled from his home in handcuffs and put in an immigration detention center in Elizabeth, N.J., and told he was going to be deported.
He is challenging his deportation in the United States Court of Appeals for the Third Circuit.
“I’m fighting for my wife and for myself,” he said on Tuesday, sounding weary. “This is my life, and this is where I want to live.”
Mr. Bradley, 36, had been swept up in tougher enforcement of the Department of Homeland Security’s Visa Waiver Program, which allows citizens of certain countries, all close allies of the United States, to stay in the country for 90 days or less without obtaining a visa.
The government admits millions of travelers on visa waivers every year, requiring them to sign a document waiving any right to challenge their removal, except under certain conditions. Most leave in a timely fashion, officials said. But Mr. Bradley, who entered the country in August 1996 with a visa waiver, never left.
Since 9/11, the Visa Waiver Program, which now includes 34 participating countries, has come under close scrutiny as a potential loophole for terrorists. In 2004, all visa waiver visitors were required for the first time to be photographed and fingerprinted when they arrived in the United States. In the 2008 fiscal year, 785 foreigners who entered the United States on visa waivers were deported, up from 750 the year before, according to Immigration and Customs Enforcement figures.
As the spouse of an American citizen, Mr. Bradley was eligible to apply for an adjustment of his administrative status and seek a green card.
It is a common enough process: Immigrant law experts estimate that hundreds of people who have overstayed their visa waivers apply successfully for green cards every year. Indeed, a brother and a sister of Mr. Bradley, both of whom had overstayed their visa waivers, married Americans and successfully obtained green cards.
Mr. Bradley applied for a green card interview and was granted one scheduled for March 24, 2008. He twice postponed the interview because of work conflicts, according to his lawyer, Harry Asatrian.
He said he did not expect any problem with the application. He had worked illegally, mostly as a bartender in New Jersey. But he had stayed out of more serious trouble, he said.
On June 5, however, United States Citizenship and Immigration Services denied Mr. Bradley’s second request for a postponement, saying he had failed to show “good cause,” Mr. Asatrian said. Mr. Bradley filed an appeal with Citizenship and Immigration Services on June 24, the lawyer said.
Mr. Bradley heard nothing more about his case until 5 a.m. on Oct. 8, when immigration officers knocked on the couple’s door in West Milford, N.J. They said he was going to be deported, and they arrested him.
Harold Ort, a spokesman for the Newark office of Immigration and Customs Enforcement, said that the agency could not comment on any deportation cases that were in litigation.
In his appeal to the deportation order, Mr. Bradley challenges the integrity and constitutionality of the visa waiver procedure itself.
Mr. Asatrian said that the Department of Homeland Security had not produced the document waiving Mr. Bradley’s right to challenge his removal. Court papers filed by Mr. Asatrian say that Mr. Bradley “vaguely recalls” signing the waiver when he passed through immigration at Kennedy International Airport, but that he was not in any condition to waive his rights “knowingly and voluntarily” since he was not sufficiently knowledgeable about his legal rights and was “groggy from the sleeplessness, jet-lagged and sufficiently intoxicated.”
“If you take a survey,” Mr. Asatrian said, “I don’t think 90 percent of the people would know what they are signing away.”
The government has argued that the Third Circuit has no jurisdiction in the case, and that Mr. Bradley’s “constitutional claims” do not apply, because he waived his rights to appeal a deportation order before entering the United States, according to court records.
As for proving whether Mr. Bradley knowingly waived his rights, “the form itself is the prima facie evidence,” said Stephen F. Day, a trial lawyer in the Department of Justice who is handling the case. “He admitted signing it.”
On Nov. 10, the appeals court stayed the deportation. It has agreed to hear the case. Mr. Asatrian said it could take up to two years to complete. Mr. Bradley was released on Nov. 14 pending the outcome of the case.“It’s still very surreal; I still haven’t quite adjusted fully,” he said in a telephone interview from his home. “I’m still worried when cars are driving by the house, and I’m still looking out the window. Hopefully that feeling will go away with time.”