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 governed 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 serve 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 23rd
day of September, two thousand fourteen.

PRESENT:             JOSÉ A. CABRANES,
                     ROSEMARY S. POOLER,
                     RAYMOND J. LOHIER, JR.,
                                  Circuit Judges.


CARLOS ALBERTO GONZALEZ,

                     Petitioner,

                              v.                                     No. 13-2741-ag

ERIC H. HOLDER, JR.,
United States Attorney General,

                     Respondent.


FOR PETITIONER:                                       PERHAM MAKABI, Kew Gardens, NY.

FOR RESPONDENT:                                       JANETTE L. ALLEN, Office of Immigration
                                                      Litigation, Civil Division, United States
                                                      Department of Justice, Washington, DC.

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

        Petitioner Carlos Alberto Gonzalez, a native and citizen of Argentina, seeks review of a final
order of removal issued by the United States Department 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) (finding 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 acknowledgement 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 right 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 prejudice 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 constitute sufficient evidence of waiver should not be
taken to mean that a post-hoc affidavit can 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).

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