Gustavo Gabriel NARDEA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
No. 16-1274
United States Court of Appeals, Fourth Circuit.
Argued: September 13, 2017. Decided: November 29, 2017
675
Before TRAXLER, DIAZ, and FLOYD, Circuit Judges.
DIAZ, Circuit Judge:
Gustavo Gabriel Nardea, a citizen of Argentina, petitions for review of a February 26, 2016 Order of Removal issued by the Department of Homeland Security (the “DHS“). Nardea was removed without the benefit of a hearing on the basis that he entered the United States under the Visa Waiver Program and waived his right to contest removal under the terms of that program. Nardea challenges his status as a visa waiver entrant and, in the alternative, the constitutionality of any waiver under the program. We reject both challenges and therefore deny the petition.
I.
Nardea was admitted to the United States on September 30, 2001 at Hartsfield International Airport in Atlanta, Georgia. The record of his entry includes a passport stamp for visa waiver tourists and the completed bottom half of an I-94W Visa Waiver Arrival Form,1 bearing Nardea‘s name, birthdate, and country of citizenship. Nardea has remained in the United States since 2001 and does not dispute that he is currently in the country illegally. On February 26, 2016, DHS discovered Nardea in Montgomery County, Maryland and issued a notice of intent to deport. The notice asserted that Nardea had entered the United States under the Visa Waiver Program, exceeded the length of his permitted stay, and waived any right to contest his deportability by executing the I-94W Form. An order of deportation was issued the same day. Nardea timely filed a petition for review.
II.
We review final orders of removal based on the administrative record considered by the agency and construe findings of fact as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary....”
Nardea challenges DHS‘s legal conclusion that he was admitted under the Visa Waiver Program, arguing that the government failed to produce sufficient evidence to support such a determination. Alternatively, Nardea says that any resulting waiver should not be presumed absent production of his signed I-94W Form. Lastly, Nardea contends that to be valid, a waiver of pre-removal hearings must be knowing and voluntary.
Before addressing these arguments, we briefly explain the structure and purpose of the Visa Waiver Program.
A.
The Visa Waiver Program permits nonimmigrant visitors to enter and remain in the United States for a period of ninety days without first obtaining a visa.
Congress created the Visa Waiver Program to “eliminate an unnecessary barrier to travel” and “alleviate vast amounts of paperwork” so that U.S. consular offices could “better meet high priority responsibilities such as visa screening in high fraud areas.” H.R. Rep. No. 99-682, pt. 1, at 50 (1986), as reprinted in 1986 U.S.C.C.A.N. 5649, 5654. In exchange for making it easier for visitors to enter the United States, the program relies on a reciprocal waiver from the applicant, ensuring “that a person who comes here with a VWP visa . . . will not raise a host of legal and factual claims to impede his removal if he overstays.” Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005). Waiver is therefore the “linchpin” of the program. Id.
Today, the program is largely carried out online, with air and sea travelers required to obtain a travel authorization, including a certification of waiver, prior to departing for the United States.
B.
With the goal and procedures of the Visa Waiver Program in mind, we turn first to Nardea‘s contention that the record does not support DHS‘s finding that he was properly admitted as a visa waiver tourist. Nardea claims that absent production of his signed I-94W Form, the government cannot carry its burden of establishing by clear and convincing evidence he was admitted under the program. We disagree.
To support its determination that Nardea entered the United States under the Visa Waiver Program, DHS points to Nardea‘s passport and the bottom portion of his completed I-94W Form. The former bears a stamp in lieu of a visa, which reads “WB/WT For 90 Days Section 217 of the INA” with the letters “WT” circled and the date and place of admission at the top of the stamp. A.R. 10.2 “WT” is a reference to the nonimmigrant designation of “Visa Waiver, Tourist” while “Section 217 of the INA” refers to the statutory provision creating the Visa Waiver Program. See
Relying on two unpublished opinions (involving criminal convictions for illegal reentry following deportation), Nardea argues that the government must produce
Based on the administrative record amassed by DHS, we find that Nardea was admitted under the Visa Waiver Program.
C.
Nardea next challenges the sufficiency of the evidence supporting DHS‘s claim that he waived his right to a hearing prior to removal. As a threshold matter, we recognize that while “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application,” “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). Thus, in the absence of waiver, Nardea, who has been in the United States for over fifteen years and developed substantial connections to this country, has a right to “a fair hearing when threatened with deportation....” Id.
The government contends that because Nardea was admitted as a waiver tourist, he necessarily waived his right to contest removal. Nardea responds by urging us to “indulge every reasonable presumption against waiver of fundamental constitutional rights” and require production of the actual signed waiver. Pet‘r Br. at 14 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Nardea concludes that the government‘s view amounts to the presumption, “entry ergo waiver,” which he claims has been rejected by two of our sister circuits. See Galluzzo v. Holder, 633 F.3d 111, 114-15 (2d Cir. 2011) (per curiam); Mokarram v. U.S. Att‘y Gen., 316 Fed. Appx. 949, 953-54 (11th Cir. 2009).
We read these cases differently. In Galluzzo, the government failed to demonstrate waiver because the record was “silent as to whether Galluzzo signed or otherwise agreed to waive his rights to contest removal.” 633 F.3d at 115. In a subsequent opinion, the Second Circuit clarified that “[n]othing in Galluzzo requires the production of a physically signed I-94W, even under the [prior] paper-based system.” Vasconcelos v. Lynch, 841 F.3d 114, 119 (2d Cir. 2016). Instead, the requirement is that the government offer some “explicit evidence of waiver.” Id. at 118. This was lacking in Galluzzo, because while the government provided evidence of “Galluzzo‘s status as a VWP entrant” it failed to establish the consequences of that designation. 633 F.3d at 114.
The decision in Mokarram, 316 Fed. Appx. at 954, also focuses on evidentiary failings. There, petitioner entered the United States at the age of twelve accompanied by a family friend. His passport was stamped, and he retained the bottom half of a handwritten I-94W Form but not the signed waiver. Id. at 950. Nothing in the record indicated whether Mokarram or a parent or guardian completed this portion of the form, signed any waiver, or
In the case before us, the government showed that Nardea was properly admitted as a visa waiver tourist and established how it customarily obtains an entrant‘s waiver. It produced a copy of Nardea‘s stamped passport and the bottom half of his completed I-94W Form, consistent with a proper visa waiver entry. This distinguishes the present case from Mokarram, where the record failed to show that the then twelve-year-old petitioner had been properly admitted as a waiver tourist. 316 Fed. Appx. at 954. The government also provided us with a copy of the I-94W Form and a detailed explanation as to how the visa waiver program operates, making comparisons to Galluzzo inappropriate. There, DHS failed to provide the court with a copy of the waiver form or even establish the manner in which it obtains an entrant‘s waiver. See Galluzzo, 633 F.3d at 114-15 (rejecting the government‘s reliance on mere statutory language to establish it therefore obtained the petitioner‘s waiver prior to entry).
We think it proper on the record before us to apply the “presumption of regularity [that] attaches to the actions of Government agencies,” U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001), such that “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926). Under the Visa Waiver Program, DHS is required by law to obtain a visitor‘s waiver as a precondition to entry. Thus, where evidence establishes a visitor was properly admitted as a waiver tourist, we may presume (absent clear evidence showing otherwise) that the government necessarily obtained the entrant‘s waiver to challenge any subsequent removal order. To hold otherwise would flip the “presumption of regularity” on its head and have us presume that every entry is irregular.
Our approach here accords with those of other circuits, which have relied on the presumption of regularity to conclude the government properly procured a Visa Waiver Program entrant‘s waiver without producing the signed I-94W Form. See Vasconcelos, 841 F.3d at 119 (concluding DHS computer record indicating petitioner had signed an I-94W waiver is “a record generated by public officials in the ordinary course of their duties, [and thus] is presumed reliable and may serve as competent evidence in immigration proceedings.“); Bradley, 603 F.3d at 239 (“Because agency action is entitled to a presumption of regularity, we presume that the Department admitted Bradley under the VWP only after collecting the top portion of his completed I-94W form, including his signed VWP waiver.“) (internal quotation marks & citation omitted).
In sum, where the evidence is consistent with only one type of entry, and the government has established how it customarily obtains an entrant‘s waiver, a presumption of regularity regarding the operation of the program, and resulting waiver, is appropriate. Thus, the manner of Nardea‘s entry, coupled with evidence of the admission process under the program, supports the conclusion that he waived his right to contest his removal before he was admitted to the United States.
D.
Alternatively, Nardea argues that even if he executed a waiver, it is invalid
To succeed on a procedural due process claim, Nardea must demonstrate “(1) that a defect in the proceeding rendered it fundamentally unfair and (2) that the defect prejudiced the outcome of the case.” Anim v. Mukasey, 535 F.3d 243, 252 (4th Cir. 2008); accord Rusu v. INS, 296 F.3d 316, 320-22 (4th Cir. 2002). We may find prejudice only “when the rights of an alien have been transgressed in such a way as is likely to impact the results of the proceedings.” Rusu, 296 F.3d at 320 (internal quotation marks & citation omitted).
We agree with the government that Nardea cannot show prejudice, and thus need not decide if the knowing and voluntary standard applies. Had Nardea been informed fully about the consequences of signing the I-94W waiver, he would be faced with two options, either of which would lead to his removal from the United States. If Nardea had signed the waiver and entered the country, he would be subject to removal without a hearing if (as happened here) he overstayed his visa. Alternatively, if he refused to sign the waiver, he would have been removed summarily at the border. See Bayo v. Napolitano, 593 F.3d 495, 506 (7th Cir. 2010) (en banc) (noting that, faced with knowledge of the waiver, the alien would have had two options, either of which would have led to summary removal from the United States); accord Bingham v. Holder, 637 F.3d 1040, 1046-47 (9th Cir. 2011) (holding alien seeking admission under the VWP could either sign waiver and be admitted or refuse and be denied entry).
III.
To sum up, we are satisfied that Nardea entered the United States through the Visa Waiver Program. Such entry requires a visitor to waive his or her right to contest deportation on any grounds besides asylum, and we presume such a waiver accompanied Nardea‘s entry absent some irregularity not shown here. Nardea‘s claim that the waiver was unknowing or involuntary does not upset this conclusion, as presuming such a standard applies, he cannot show that the outcome of his case would have been different were he fully informed as to the consequences of signing the waiver.
The petition for review is therefore
DENIED.
Attachment