Gonzaga-Ortega v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FRANCISCO M. GONZAGA-ORTEGA, 
Petitioner, No. 07-74361
v.
 Agency No.
A078-460-934
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
July 18, 2012—San Francisco, California

Filed September 14, 2012

Before: Richard R. Clifton and Mary H. Murguia,
Circuit Judges, and Raner C. Collins, District Judge.*

Opinion by Judge Clifton

*The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, sitting by designation.

11259
 GONZAGA-ORTEGA v. HOLDER 11261

COUNSEL

Robert B. Jobe, San Francisco, California, for the petitioner.

Craig Alan Newell, Jr. (argued), Gregory G. Katsas, Blair T.
O’Connor, Briena L. Strippoli, Office of Immigration Litiga-
tion, United States Department of Justice, Washington, D.C.,
for the respondent.

OPINION

CLIFTON, Circuit Judge:

Francisco Gonzaga-Ortega (“Gonzaga”) petitions for
review of a decision of the Board of Immigration Appeals
(“BIA”) dismissing his appeal of an order of removal. The
principal legal question raised by the petition is whether Gon-
zaga was improperly denied counsel during questioning at the
border based on a determination by immigration officers that
he had engaged in illegal activity by trying to smuggle his
11262 GONZAGA-ORTEGA v. HOLDER
niece across the border. A right to counsel is provided in 8
C.F.R. § 292.5(b), but that regulation expressly states that it
does not provide a right to representation to any “applicant for
admission” in primary or secondary inspection except under
circumstances that did not apply here. Gonzaga was a lawful
permanent resident (“LPR”), and an LPR returning to the
United States ordinarily is not treated as an “applicant for
admission” under 8 U.S.C. § 1101(a)(13)(C). That statute
contains six exceptions, though, one of which excludes an
LPR who “has engaged in illegal activity after having
departed the United States.” 8 U.S.C. § 1101(a)(13)(C)(iii).
Gonzaga argues that a finding that he engaged in illegal activ-
ity could not properly be made by officers at the border and
that he was entitled to counsel until a final administrative
determination had been made by an Immigration Judge (“IJ”)
and the BIA. We disagree and hold that the border officers
were permitted to treat Gonzaga as an applicant for admission
based on their conclusion that Gonzaga had engaged in illegal
activity, without waiting for a final administrative determina-
tion. We also reject Gonzaga’s claims that his statements
admitting the attempt to smuggle his niece across the border
were coerced and used against him in violation of due pro-
cess. We therefore deny the petition.

I. Background

Gonzaga is a native and citizen of Mexico. He entered the
United States illegally in 1989 but was granted LPR status in
2001.

After a one-week vacation visiting family in Mexico, Gon-
zaga attempted to reenter the United States at the San Ysidro
Port of Entry on May 12, 2004, at approximately 6 p.m. In the
car with Gonzaga were his wife, their eight-month old daugh-
ter, and their fifteen-year-old niece, Marisol Madera Arroyo.
Gonzaga presented his resident alien card, his wife presented
her valid visitor visa and a United States birth certificate on
behalf of their daughter, and the niece orally declared herself
 GONZAGA-ORTEGA v. HOLDER 11263
to be a United States citizen. Suspecting the niece of making
a false statement, the officer at the primary inspection point
referred the vehicle and its occupants to secondary inspection
for further investigation. During secondary inspection, Gon-
zaga’s niece admitted to being a citizen of Mexico with no
legal documents or benefits to enter, pass through, or reside
in the United States.

After being detained for most of the night, Gonzaga’s wife
and daughter were released early the next morning. Gonzaga
was also detained overnight and was interviewed late the next
day by Officer Georgina Rios, with another officer acting as
a witness. Rios later testified that it was regular practice to
conduct interviews as soon as possible, but the time delay var-
ied depending on caseload. In Gonzaga’s case, his formal
interview was conducted approximately 28 hours after he
presented himself at the port of entry. The interview was con-
ducted in Spanish, Gonzaga’s native language. It was trans-
lated, transcribed and later admitted into evidence by the IJ as
a record of sworn statement.

During the interview Gonzaga disclosed that he agreed to
bring his niece over the border at the request of her parents.
He said that he knew his niece had no legal documents to
enter the United States, and that he told her she should say she
was a United States citizen if anyone asked. At the end of the
interview, Gonzaga stated that he had been treated “fine”
since arriving at the immigration station and agreed that he
had given his statement “voluntarily,” not having been forced
or threatened in any way.

Rios recorded information taken from the interview in a
Form I-213, Record of Deportable/Inadmissible Alien. Rios
served Gonzaga with a Notice to Appear, and he was thereaf-
ter paroled into the United States. On May 17, 2004, the
Department of Homeland Security initiated removal proceed-
ings against Gonzaga by filing a Notice to Appear with the
Immigration Court, charging him as inadmissible under 8
11264 GONZAGA-ORTEGA v. HOLDER
U.S.C. § 1182(a)(6)(E)(i) as an alien who had knowingly “en-
couraged, induced, assisted, abetted, or aided any other alien
to enter or try to enter the United States in violation of law.”

Before the IJ, Gonzaga filed a motion to suppress all physi-
cal and testimonial evidence obtained or derived as a result of
his interrogation at the secondary inspection point. He also
submitted a sworn declaration describing the conditions of his
detention. In this declaration, Gonzaga described being held
for approximately 28 hours, kept in a holding room with 15
other men, and fed only twice with meals consisting of a
sandwich, carrots, and water. He claims that he was not
allowed to contact anyone outside of the facility, and that he
feared he would be kept in detention until he gave his story.
Gonzaga stated that Rios yelled at him and pressured him to
tell his story, and that she never informed him that he had the
right to remain silent or the right to retain counsel. In her tes-
timony before the IJ, Rios denied ever yelling, threatening, or
pressuring Gonzaga.

The IJ conducted a merits hearing on May 24, 2006, at the
conclusion of which he rendered an oral decision denying
Gonzaga’s motion to suppress, finding Gonzaga inadmissible
as charged, and ordering him removed to Mexico. Relying on
the sworn interview transcript, the report of the interview con-
tained in the Form I-213, and testimony by Officer Rios, the
IJ concluded that Gonzaga knowingly attempted to smuggle
his alien niece across the border. The IJ thus found Gonzaga
to have engaged in “illegal activity after having departed the
United States,” so the IJ deemed him an arriving alien and
denied him admission into the United States. See 8 U.S.C.
§ 1101(a)(13)(C)(iii). In denying Gonzaga’s motion to sup-
press, the IJ held that Gonzaga had not been entitled to have
an attorney present during the secondary inspection because
he was properly treated as an arriving alien, so that 8 C.F.R.
§ 292.5(b) did not apply even though Gonzaga was an LPR.
The IJ also found that the conditions in which Gonzaga was
held were not unsatisfactory and that he had not been coerced
 GONZAGA-ORTEGA v. HOLDER 11265
into giving his confession. Gonzaga appealed this decision to
the BIA.

The BIA adopted and affirmed the decision of the IJ, with
a citation to Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994), adding a few comments in support of the conclu-
sion. The BIA specifically stated that the IJ did not err in
admitting the record of sworn statement and Form I-213. It
also cited Rios’s testimony to further support the veracity of
the information contained in these two documents. Finally, it
held that Gonzaga’s due process rights were not violated.

II. Discussion

When the BIA adopts the IJ’s decision with a citation to
Matter of Burbano and also adds its own comments, as it did
here, we review the decisions of both the BIA and the IJ. See
Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We
review determinations of purely legal questions, including
claims of due process violations, de novo. Cruz Rendon v.
Holder, 603 F.3d 1104, 1109 (9th Cir. 2010); Hamazaspyan
v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). Findings of fact,
such as whether an individual engaged in alien smuggling, are
reviewed for substantial evidence and upheld “ ‘unless any
reasonable adjudicator would be compelled to conclude to the
contrary.’ ” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111
(9th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)).

A. The Right to Counsel Under 8 C.F.R. § 292.5(b)

[1] Gonzaga contends that he was entitled to counsel dur-
ing secondary inspection at the port of entry under 8 C.F.R.
§ 292.5(b), and that any statements made thereafter and all
other evidence obtained as a result should have been excluded
from consideration because he was denied counsel.

The regulation states:
11266 GONZAGA-ORTEGA v. HOLDER
Whenever an examination is provided for in this
chapter, the person involved shall have the right to
be represented by an attorney or representative . . . .
Provided, that nothing in this paragraph shall be con-
strued to provide any applicant for admission in
either primary or secondary inspection the right to
representation, unless the applicant for admission
has become the focus of a criminal investigation and
has been taken into custody.

8 C.F.R. § 292.5(b). The IJ, affirmed by the BIA, held that
Gonzaga did not have a right to representation at secondary
inspection because he fell within the express exception for an
“applicant for admission” who had not become the focus of
a criminal investigation.

[2] Ordinarily a returning LPR is not treated as an “appli-
cant for admission.” But the statute that so provides includes
six exceptions, one of which covered Gonzaga. The statute
states that “[a]n alien lawfully admitted for permanent resi-
dence in the United States shall not be regarded as seeking an
admission into the United States for purposes of the immigra-
tion laws unless the alien . . . has engaged in illegal activity
after having departed the United States.” 8 U.S.C.
§ 1101(a)(13)(C)(iii); see United States v. Tsai, 282 F.3d 690,
696 n.5 (9th Cir. 2002); see also Vartelas v. Holder, 132
S. Ct. 1479, 1484-85 (2012).

[3] The IJ concluded that Gonzaga had engaged in illegal
activity after departing the United States by his “conscious
participation in an unlawful scheme to try to get his niece
Marisol across the border illegally.” Such activity constitutes
a criminal act under 8 U.S.C. § 1324(a)(2), which provides
criminal penalties for “[a]ny person who, knowing or in reck-
less disregard of the fact that an alien has not received prior
official authorization to come to, enter, or reside in the United
States, brings to or attempts to bring to the Untied States in
any manner whatsoever, such alien.” The IJ noted that Gon-
 GONZAGA-ORTEGA v. HOLDER 11267
zaga had not presented any defense to the substance of the
alien smuggling charge.

Gonzaga has not presented any defense or denied his
involvement in alien smuggling in his petition to this court,
either. Nor has he denied that his participation in the attempt
to bring his niece across the border constituted “illegal activi-
ty,” though he did note that the government did not thereafter
bring any criminal charges against him.

The thrust of the argument presented to us by Gonzaga is
that a determination as to whether an LPR is subject to one
of the exceptions set forth in 8 U.S.C. § 1101(a)(13)(C) can
only be made by an IJ and the BIA and cannot be made by
immigration officers at the border. He does not argue that the
later determination by the IJ, affirmed by the BIA, that Gon-
zaga had engaged in illegal activity was incorrect, though he
complains that it was based upon evidence that should not
have been considered, including his confession. Instead, he
argues, in the words of his opening brief, that “lawful perma-
nent residents like [himself] have ‘the right to be represented
by an attorney or other representative’ until there is a final
administrative determination that they have engaged in activi-
ties which except them from the general rule set forth in INA
§ 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).” He also argues
that such a determination must be based upon clear and con-
vincing evidence.

[4] Gonzaga’s argument is not consistent with the lan-
guage of the statute or with logic. The statute says that an
LPR should not be regarded as an applicant for admission
unless he has, among other things, “engaged in illegal activi-
ty.” It does not say unless he had already been adjudicated as
having engaged in illegal activity. How a person who presents
himself for admission into the United States is to be treated
— in this instance, whether Gonzaga was entitled to counsel
during secondary inspection — is a decision that has to be
made at that time, on the spot, by immigration officers at the
11268 GONZAGA-ORTEGA v. HOLDER
border. It cannot wait for the ultimate adjudication of that per-
son’s case before an IJ and the BIA many years later. The
INA assigns responsibility to immigration officers to make
decisions regarding the admission of persons who present
themselves at the border. See, e.g., 8 U.S.C. § 1225(b)(2).
Those decisions are subject to review, but the officers are
entitled to make them.

If the border officials get the decision wrong — if in this
instance Gonzaga later was found not to have engaged in ille-
gal activity — then some remedy might be in order. But in
this case, they did not get the decision wrong. As a result, we
do not need to reach the question of what remedy, including
exclusion of evidence, would be appropriate. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).

In a letter submitted to us under Fed. R. App. P. 28(j) and
at oral argument, Gonzaga cited a decision of the Supreme
Court earlier this year, Vartelas v. Holder, 132 S. Ct. 1479
(2012), in support of his argument. That case involved
another one of the six exceptions in 8 U.S.C.
§ 1101(a)(13)(C) under which an LPR should be treated
instead as an “applicant for admission,” specifically the
exception in subpart (v). Under that provision, an LPR should
not be treated as an applicant for admission, unless he “has
committed an offense identified in section 1182(a)(2) of this
title.” 8 U.S.C. § 1101(a)(13)(C)(v). Offenses identified in
§ 1182(a)(2) include “a crime involving moral turpitude
(other than a purely political offense) or an attempt or con-
spiracy to commit such a crime.” 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); see Vartelas, 132 S. Ct. at 1485.

The six exceptions for treating an LPR as an applicant for
admission were added to the statute as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), 110 Stat. 3009-546. The holding of Var-
telas, that the 1996 amendment should not be applied retroac-
tively to Vartelas based on his 1994 plea of guilty to a felony
 GONZAGA-ORTEGA v. HOLDER 11269
prior to the adoption of the amendment, does not help Gon-
zaga. Gonzaga became an LPR after IIRIRA was enacted, and
the illegal activity in which he was found to have engaged
similarly took place after the enactment, in 2004, so there is
no element of retroactivity involved here.

Gonzaga attempts, nonetheless, to squeeze support from
comments made at the end of the majority opinion in Var-
telas, in response to the dissent, drawing support from the
Supreme Court’s previous decision in INS v. St. Cyr, 533 U.S.
289 (2001). In the course of that discussion, the Court said in
Vartelas that it saw no practical difference between the statu-
tory provision relevant in St. Cyr, which referred to an alien’s
“convict[ion]” of a crime and the provision relevant in Var-
telas, “committed an offense.” Those two statutory references
in the Court’s decision were followed by a footnote:

After the words “committed an offense,”
§ 1101(a)(13)(C)(v)’ s next words are “identified in
section 1182(a)(2).” That section refers to “any alien
convicted of, or who admits having committed,”
inter alia, “a crime involving moral turpitude.”
§ 1182(a)(2)(A)(i)(I) (emphasis added). The entire
§ 1101(a)(13)(C)(v) phrase “committed an offense
identified in section 1182(a)(2),” on straightforward
reading, appears to advert to a lawful permanent res-
ident who has been convicted of an offense under
§ 1182(a)(2) (or admits to one).

Vartelas, 132 S. Ct. at 1492 n.11. The decision then went on
to state: “Ordinarily, to determine whether there is clear and
convincing evidence that an alien has committed a qualifying
crime, the immigration officer at the border would check the
alien’s records for a conviction. He would not call into ses-
sion a piepowder court to entertain a plea or conduct a trial.”
Id. at 1492. Another footnote provided a helpful explanation
of the term “piepowder court”:
11270 GONZAGA-ORTEGA v. HOLDER
Piepowder (“dusty feet”) courts were temporary
mercantile courts held at trade fairs in Medieval
Europe; local merchants and guild members would
assemble to hear commercial disputes. These courts
provided fast and informal resolution of trade con-
flicts, settling cases “while the merchants’ feet were
still dusty.” Callahan, Medieval Church Norms and
Fiduciary Duties in Partnership, 26 Cardozo L. Rev.
215, 235, and n. 99 (2004) (internal quotation marks
omitted) (quoting H. Berman, Law and Revolution:
The Formation of the Western Legal Tradition 347
(1983)).

Id. at 1492 n.12.

From this discussion Gonzaga seeks to infer support for the
proposition that an immigration officer at the border is pre-
cluded from making a determination that a returning LPR
should be treated as an applicant for admission and is limited
to relying upon a prior conviction or an admission by the alien
that he had in fact committed the offense. Leaving aside the
remoteness of this discussion from the actual holding in Var-
telas, we disagree with Gonzaga’s interpretation for two sepa-
rate reasons.

First, the purported interpretation of § 1101(a)(13)(C)(v) to
require a conviction or confession does not speak to the provi-
sion that was applied to Gonzaga, subpart (iii), as someone
who “has engaged in illegal activity after having departed the
United States.” The Court’s explanation in footnote 10 of the
requirement for a conviction or confession was explicitly
based on the language of the section of the statute referred to
in subpart (v), § 1182(a)(2), as the quotation of footnote 10
above illustrates. There is no similar limiting reference in sub-
part (iii) requiring a prior conviction or confession. Moreover,
if the illegal activity was engaged in after departure from the
United States, there presumably could not have been a convic-
tion, at least not in a United States court, by the time the alien
 GONZAGA-ORTEGA v. HOLDER 11271
presented himself at the port of entry seeking to reenter the
country.

Second, as noted above, the decision as to how Gonzaga
was to be treated at the port of entry was necessarily one that
had to be made by officers at the border. It was subject to sub-
sequent review by an IJ and the BIA and by this court. The
border officers did not need to convene any piepowder court,
for that review was available in due course, and Gonzaga has
obtained it. If the officers’ determination was held to be incor-
rect, an appropriate remedy might be considered. But the
determination in this case that Gonzaga had engaged in illegal
activity after having departed the United States was not incor-
rect. Treating him as an applicant for admission did not deny
him any legal rights.

[5] Because Gonzaga was properly deemed an “applicant
for admission” pursuant to 8 U.S.C. § 1101(a)(13)(C)(iii), we
conclude that 8 C.F.R. § 292.5(b) did not entitle him to coun-
sel during primary or secondary inspection. Accordingly,
because the immigration officers did not obtain Gonzaga’s
confession in violation of the regulation, the IJ and BIA did
not err in considering it. See Chuyon Yon Hong v. Mukasey,
518 F.3d 1030, 1036 (9th Cir. 2008).

B. Due Process Violation

[6] “Immigration proceedings . . . must conform to the
Fifth Amendment’s requirement of due process.” Salgado-
Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005). “Ex-
pulsion cannot turn upon utterances cudgeled from the alien
by governmental authorities; statements made by the alien and
used to achieve his deportation must be voluntarily given.”
Bong Youn Choy v. Barber, 279 F.2d 642, 646 (9th Cir.
1960). Gonzaga must demonstrate error and substantial preju-
dice to prevail on a due process claim. Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000).
11272 GONZAGA-ORTEGA v. HOLDER
[7] Gonzaga’s contention that his confession was coerced
was rejected by the IJ and the BIA. The IJ concluded that
there was no basis for believing that Gonzaga had been
cajoled into giving the officers a statement against his will.
The IJ cited Gonzaga’s own statements in the transcribed
interview that he had been treated “fine” and that he made his
statements “voluntarily.” The IJ also cited the lack of any
indication of physical abuse, and the relatively brief period
that Gonzaga was held. He also noted that there was no indi-
cation that the facts related by Gonzaga during the interview
were false, and that Gonzaga in his declaration never men-
tioned his niece’s presence or denied his involvement in alien
smuggling. The BIA similarly concluded that there was no
support in the record for Gonzaga’s claims to have been
denied a fair hearing or to have been prejudiced by the admis-
sion of his statements. Our conclusion is the same.

PETITION DENIED.