13-2741-ag Gonzalez v. Holder A205-986-563

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is govern ed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serv e a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23 rd day of September, two thousand fourteen.

PRESENT: J OSÉ A. C ABRANES
, R OSEMARY S. P OOLER , R AYMOND J. L OHIER , J R ., Circuit Judges

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C ARLOS A LBERTO G ONZALEZ
,

Petitioner

,
v. No. 13-2741-ag

E RIC H. H OLDER , J R ., United States Attorney General,

Respondent

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FOR PETITIONER: P ERHAM M AKABI , Kew Gardens, NY.

FOR RESPONDENT: J ANETTE L. A LLEN , Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC.

Petition for review of a final order of remova l issued by the United States Department of Homeland Security (“DHS”).2 UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is GRANTED

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Petitioner Carlos Alberto Gonzalez, a native and citizen of Argentina, seeks review of a final order of removal issued by the United States De partment of Homeland Security (“DHS”) without the benefit of a hearing on the basis that he entered the United States under the Visa Waiver Program (“VWP”), 8 U.S.C. § 1187, and waived his right to contest removal. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Upon de novo review, we conclude that the record does not contain adequate evidence of waiver. The record does not include a signed copy of the applicable I-94W form waiving the right to a hearing, and Gonzalez’s June 20, 2013 affidavit does not admit to signing such a form. Cf. Bradley v. Att’y Gen. of the U.S. , 603 F.3d 235, 239 (3d Cir. 2010) (findi ng sufficient evidence of waiver where petitioner admitted in declaration that he signed form waiving right to contest removal upon entry into United States). In addition, Gonzalez’s acknow ledgement in his affidavit “that as a participant in the visa waiver program, . . . [he] ha[s] waived” his right to contest removal is insufficient evidence
of waiver under Galluzzo v. Holder , 633 F.3d 111, 114–15 (2d Cir. 2011) (rejecting presumption that
alien’s “status as a VWP entrant alone is de facto proof that he waived his right to contest removal”). 1

Absent waiver, Gonzalez has a constitutional ri ght to a pre-removal hearing, but he is not entitled to relief “unless he can show prejudice as a result of his failure to receive a hearing.” Galluzzo , 633 F.3d at 115. Accordingly, we remand to DHS to determine in the first instance whether Gonzalez has suffered prejudice. 2

CONCLUSION

For the reasons stated above, the petition is GRANTED and the case is REMANDED to DHS to determine whether Gonzalez can show prej udice as a result of his failure to receive a hearing.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 Our conclusion that Gonzalez’s affidavit does not c onstitute sufficient evidence of waiver should not be taken to mean that a post-hoc affidavit ca n never constitute sufficient evidence of waiver, or that a signed I-94W is the only sufficient evidence of waiver. See, e.g.

, Bradley , 603 F.3d at 239.

2 Gonzalez argues that under United States ex rel. Accardi v. Shaughnessy , 347 U.S. 260 (1954), he need not establish prejudice to be entitled to relief. The Accardi doctrine, however, does not apply in this case because Gonzalez has not identified any agency regulation that DHS violated. Cf. Montilla v. INS , 926 F.2d 162, 166–67 (2d Cir. 1991).