Gustavo Nardea v. Jefferson Sessions III

PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1274 GUSTAVO GABRIEL NARDEA, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Department of Homeland Security. Argued: September 13, 2017 Decided: November 29, 2017 Before TRAXLER, DIAZ, and FLOYD, Circuit Judges. Petition denied by published opinion. Judge Diaz wrote the opinion, in which Judge Traxler and Judge Floyd joined. ARGUED: Adam Nathaniel Crandell, LAW OFFICE OF ADAM N. CRANDELL LLC, Baltimore, Maryland, for Petitioner. David Schor, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeffery R. Leist, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 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 1 Both DHS’s notice of intent to deport and petitioner’s brief refer to Form I-791, which was the predecessor to Form I-94W. See Visa Waiver Pilot Program, 56 Fed. Reg. 32,952 (July 18, 1991) (codified at 8 C.F.R. § 217) (replacing Form I-791 with Form I- 94W). However, the record indicates that Nardea completed an I-94W Form. We treat the forms as identical for purposes of our review. 2 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 . . . .” 8 U.S.C. § 1252(b)(4)(A)–(B). Questions of law, including constitutional claims, are reviewed de novo. Viegas v. Holder, 699 F.3d 798, 801 (4th Cir. 2012). Nardea ...

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