Argued: September 13, 2017
Petition for Review of an Order of the Department of Homeland
Nathaniel Crandell, LAW OFFICE OF ADAM N. CRANDELL LLC,
Baltimore, Maryland, for Petitioner.
Schor, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
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.
TRAXLER, DIAZ, and FLOYD, Circuit Judges.
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.
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,  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.
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