After 16 years in America, an Argentinian “tourist” is being deported without a hearing after the 4th U.S. Circuit Court of Appeals found that despite the absence of a signed waiver, he in fact waived his right to contest removal.

Gustavo Nardea entered the U.S. in 2001 under the Visa Waiver Program, which authorized him to stay for 90 days. Nardea concedes that currently he is in the country illegally, but denies that he waived his due process right to a removal hearing.

Extended stay

According to court records, Nardea touched down at the Hartsfield International Airport in Atlanta Sept. 30, 2001. Records of his arrival include a passport stamp for visa waiver tourists, and the completed bottom half of an I-94W Visa Waiver Arrival Form that bears his name, birthdate, and country of citizenship. Last year, the Department of Homeland Security discovered him in Maryland and issued a notice of intent to deport. He had overstayed, DHS said, adding that he waived any right to contest his deportation when he executed the I-94W.

The agency issued an order of deportation on the same day.  Nardea petitioned the 4th Circuit for review.

Let’s uncomplicate things

The waiver program was created to eliminate travel barriers and unnecessary paperwork, freeing U.S. consular offices personnel to focus on higher priority screenings. The program allows nonimmigrant visitors to come to the U.S. for 90 days, without obtaining a visa, as long as the visitor presents a passport from a participating country, has a round-trip ticket, and waives his or her right to contest the government’s removal actions “except on the basis of asylum.” Entrants waive their rights by signing the required I-94W.

Judge Albert Diaz called the waiver the “linchpin” of a program that ensures that those visiting the U.S. with a VWP visa “will not raise a host of legal and factual claims to impede his removal if he overstays,” he wrote, citing a 2005 case out of the 9th Circuit, Handa v. Clark.

‘No right’ to avoid waiver

While today the process is handled primarily online and before the applicant leaves his country, in 2001, applicants signed and submitted the I-94W upon arrival in the U.S. The visitor kept the bottom half of the form and immigration officials kept the rest, including the traveler’s information and the signed waiver.

It’s unclear why the signed waiver is not in evidence in this case. Nardea’s attorney, Adam Crandell of Baltimore, did not respond to a message seeking comment. But Nardea argues that absent the production of that form, the government cannot carry its burden of establishing clear and convincing evidence that he entered under the program.

“Without direct evidence of Mr. Nardea having waived his rights, the government asks the court to rely upon a presumption,” Crandell said during oral arguments. That presumption being that protocol was followed.

One panelist (the circuit judge was not identified in the audio recording) responded by noting that signing the waiver is a “precondition of admission” and that Nardea would have had no right to avoid a waiver. He would have had two choices at the airport: sign the waiver or hop a plane back to Argentina.

Should we assume, the circuit judge asked, that a “rogue customs border patrol agent decided to give this guy a pass?”

Circumstantial matters

While the government did not provide the signed waiver, it did provide Nardea’s passport and the bottom of the I-94W. In lieu of a visa, the passport bears a stamp referencing the nonimmigrant designation of “Visa Waiver, Tourist” and the statutory provision creating the waiver program. That section, used exclusively for visitors under the program, of the form also contained Nardeas handwritten name, birthday, and home country.

That evidence is “not substantial” where there is no waiver, Crandell said.

The 4th Circuit, conversely, found it clear and convincing.

“Based on the administrative record amassed by DHS, we find that Nardea was admitted under the Visa Waiver Program,” Diaz wrote.

The court recognized that someone who has been in the country as long as Nardea, who also challenged DHS’s claim that he waived his right to a hearing prior to removal, has a right to a fair hearing, absent a waiver, “when threatened with deportation.”

Nardea asked the court to require production of the signed waiver and to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” The government contended that because Nardea was a waiver tourist, he necessarily waived his right to contest removal.

This “entry ergo waiver” view was rejected by the 2nd and 11th circuits, Nardea claimed, but the court found that the two cited cases, Galluzzo v. Holder and Mokarram v. U.S. Att’y Gen, respectively, focused on evidentiary failings that did not exist here.

“We think it proper on the record before us to apply the ‘presumption of regularity [that] attaches to the actions of Government agencies,’” Diaz wrote, quoting language from 2001’s U.S. Postal Serv. v. Gregory, “such that ‘in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’”

During oral arguments, Schor said that the presumption of regularity is a rebuttable presumption that exists “as an evidentiary presumption where there’s a lack of direct contemporaneous evidence.”

“We can rely on the presumption that officials have properly discharged their duties,” Schor said. “And Mr. Nardea has done nothing to rebut that presumption.”

The court agreed, holding that under the waiver program, DHS is required to obtain a visitor’s waiver as a precondition to entry. As such, if evidence establishes that 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,’” Diaz wrote.

The 12-page decision is Nardea v. Sessions (Lawyers Weekly No. 001-208-17). A digest of the opinion is available online at sclawyersweekly.com.

Follow Heath Hamacher on Twitter @SCLWHamacher



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