NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOVITA GARCIA DE PERFECTO, No. 15-73663
Petitioner, Agency No. A058-385-731
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Jovita Garcia de Perfecto, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s decision denying cancellation of removal and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual
findings, and we review de novo questions of law and constitutional claims.
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for
review.
Perfecto was properly charged as an arriving alien, where the government
met its burden of demonstrating by clear and convincing evidence that she engaged
in illegal activity after having departed the United States. See 8 U.S.C.
§ 1101(a)(13)(C)(iii). Perfecto’s contention that she cannot be charged as
inadmissible because her departure was brief, casual, and innocent, lacks merit. See
Camins v. Gonzales, 500 F.3d 872, 879-80 (9th Cir. 2007) (the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 abrogated the Fleuti doctrine);
see also Gonzaga-Ortega v. Holder, 736 F.3d 795, 801-04 (9th Cir. 2013) (legal
permanent resident was properly treated as an applicant for admission under 8
U.S.C. § 1101(a)(13)(C)(iii) upon return because he engaged in alien smuggling
after having departing the United States).
Perfecto has waived her contention that 8 U.S.C. § 1101(a)(13)(C)(iii)
violates the due process rights of legal permanent residents. See Rizk v. Holder,
629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in an opening brief are
waived).
The agency did not err or violate due process in denying Perfecto’s motion
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to terminate proceedings, where she did not demonstrate that her statements to
immigration officials at the border were obtained through any regulatory violation.
See Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir. 2009) (“Section
287.3(c) requires the INS to inform aliens who have been ‘arrested without warrant
and placed in formal proceedings’ of their procedural rights. Formal removal
proceedings do not commence until the INS has filed an NTA in the immigration
court.”); see also id. at 901 n.6 (“§ 287.3 does not require the government to notify
the alien of a right to remain silent or a right against self-incrimination.”);
Gonzaga-Ortega, 736 F.3d at 804 (because petitioner was properly deemed an
applicant for admission, 8 C.F.R. § 292.5(b) did not entitle him to counsel during
primary or secondary inspection); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(an alien must show error and substantial prejudice to prevail on a due process
claim). To the extent Perfecto contends that de Rodriguez-Echeverria v. Mukasey,
534 F.3d 1047 (9th Cir. 2008), controls the result of her case, we reject this
contention.
Perfecto has not addressed the BIA’s determination that she waived any
challenge regarding the alleged violation of her regulatory privilege to
communicate with a Mexican consular officer. See Rizk, 629 F.3d at 1091 n.3.
Substantial evidence supports the agency’s determination that Perfecto failed
to establish the seven years of continuous residence required for cancellation of
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removal, where she was admitted into the United States on or about August 22,
2001, and she was served a notice to appear on November 20, 2006. See 8 U.S.C.
§ 1229b(a)(2), (d)(1). Perfecto’s contention that she began accruing continuous
residence prior to her admission in 2001 lacks merit. See Vasquez de Alcantar v.
Holder, 645 F.3d 1097, 1103 (9th Cir. 2011) (filing an application for adjustment
of status does not confer admission for purposes of cancellation of removal).
Substantial evidence supports the agency’s denial of CAT protection, where
Perfecto did not demonstrate it is more likely than not she would be tortured by or
with the consent or acquiescence of the Mexican government if returned. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
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