Gustavo Nardea v. Jefferson Sessions III, 876 F.3d 675

Gustavo Gabriel Nardea (Argentine citizen) entered the U.S. at Atlanta on Sept. 30, 2001; passport bears a Visa Waiver Program (VWP) stamp and the bottom half of an I-94W form with his handwritten information was in the administrative record.
Nardea remained in the U.S. beyond the permitted 90 days and was discovered by DHS in Maryland on Feb. 26, 2016. DHS issued a notice of intent to deport and an order of removal the same day, asserting he had entered under the VWP and had waived the right to contest removal.
Nardea petitioned for review, arguing (1) the government failed to prove he was a VWP entrant, (2) the government must produce his signed I-94W (or cannot presume waiver), and (3) any waiver must be knowing and voluntary.
The government relied on the passport stamp, the retained bottom half of the I-94W, and an explanation of the VWP procedures to show he was admitted under the program and that the program requires obtaining a waiver as a precondition to admission.
The Fourth Circuit reviewed factual findings for substantial deference but reviewed legal and constitutional issues de novo; it denied the petition, finding the record established VWP entry and a presumptively obtained waiver, and that Nardea could not show prejudice from any alleged lack of notice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DHS proved Nardea entered under the VWP	Government must produce the signed I-94W or greater proof; record insufficient	Passport stamp saying WB/WT and the bottom half of I-94W, plus program procedure, show VWP entry	Court: Record (passport stamp + bottom I-94W) supports only VWP entry; DHS met burden
Whether DHS must produce the signed I-94W to prove waiver	Court should presume against waiver; production of signed I-94W required	Presumption of regularity and program practice allow inference of waiver without signed form	Court: No per se requirement to produce the signed I-94W; presumption of regularity justified waiver inference given the record
Whether a VWP waiver must be knowing and voluntary	Waiver of hearing rights must be knowing and voluntary (constitutional protection)	Government questions application but says even if standard applies, no prejudice shown	Court: Did not decide the standard applies; found no prejudice — outcome would not differ even if warning were given
Whether lack of signed form or notice prejudiced petitioner	Absence of signed form/notice rendered proceedings fundamentally unfair and prejudiced outcome	Petitioner would have been removed either way (either denied entry if refused waiver or admitted and removable after overstay)	Court: No prejudice; petition denied

Viegas v. Holder, 699 F.3d 798 (4th Cir.) (standard of review for legal/constitutional questions)
Landon v. Plasencia, 459 U.S. 21 (U.S.) (post-entry procedural due process rights)
U.S. Postal Serv. v. Gregory, 534 U.S. 1 (U.S.) (presumption of regularity for government agencies)
United States v. Chemical Found., Inc., 272 U.S. 1 (U.S.) (presumption that officials properly performed duties)
Vasconcelos v. Lynch, 841 F.3d 114 (2d Cir.) (agency records and presumption can establish I-94W execution)
Bradley v. Attorney General of U.S., 603 F.3d 235 (3d Cir.) (presumption that DHS collected signed I-94W as part of VWP admission)
Galluzzo v. Holder, 633 F.3d 111 (2d Cir.) (government must provide some explicit evidence of waiver; lack of proof was fatal)
Anim v. Mukasey, 535 F.3d 243 (4th Cir.) (standard for procedural due process prejudice)
Rusu v. INS, 296 F.3d 316 (4th Cir.) (prejudice requirement for procedural due process claim)
Bayo v. Napolitano, 593 F.3d 495 (7th Cir.) (choice faced by VWP applicants: sign waiver and be admitted or refuse and be denied entry)
Bingham v. Holder, 637 F.3d 1040 (9th Cir.) (same principle regarding VWP admission and waiver)
Johnson v. Zerbst, 304 U.S. 458 (U.S.) (presumption against waiver of constitutional rights)
Handa v. Clark, 401 F.3d 1129 (9th Cir.) (waiver is central to the VWP)