Gonzaga-Ortega v. Holder

• Decision Date: 07 June 2013
• Docket Number: No. 07–74361.,07–74361.
• Citation: 736 F.3d 795
• Parties: Francisco M. GONZAGA–ORTEGA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

736 F.3d 795

Francisco M. GONZAGA–ORTEGA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07–74361.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 18, 2012.

Filed Sept. 14, 2012.

Amended June 7, 2013.

Robert B. Jobe, San Francisco, CA, for Petitioner.

Craig Alan Newell, Jr. (argued), Gregory G. Katsas, Blair T. O'Connor, Briena L. Strippoli, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078–460–934.

Before: RICHARD R. CLIFTON and MARY H. MURGUIA, Circuit Judges, and RANER C. COLLINS, District Judge.^*

ORDER

The Opinion filed on September 14, 2012, and appearing at 694 F.3d 1069, is amended as follows:

1. On page 11264 of the slip opinion, second full paragraph (694 F.3d at 1072, third full paragraph), replace the third sentence with

The IJ thus concluded that the government had proven by clear, convincing, and unequivocal evidence that Gonzaga had 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. See8 U.S.C. § 1101(a)(13)(C)(iii).

2. On page 11266 of the slip opinion, at the end of the paragraph that begins on the previous page (694 F.3d at 1073, first full paragraph), add a footnote and the end of the paragraph, following “... criminal investigation.” The footnote is:

Gonzaga does not argue on appeal that he was, in fact, the focus of a criminal investigation and had been taken into custody at the time of his interrogation, such that he fell outside the exception in 8 C.F.R. § 292.5 and had a right to representation.

3. On page 11267 of the slip opinion, second full paragraph (694 F.3d at 1074, first full paragraph), replace the final sentence and add a footnote. As amended, the final sentence is:

Such a determination would have to be based upon clear and convincing evidence. See Matter of Rivens, 25 I. & N. Dec. 623, 625–26 (BIA 2011).

The footnote is:

At the removal hearing, the IJ found that the government had proven that Gonzaga was inadmissible as charged and had engaged in illegal activity after departing the United States, by “clear, convincing, and unequivocal” evidence. Gonzaga does not complain about the standard of proof employed by the IJ. Nor does he complain that the border officers applied an improper standard when the determination was made at the border to treat him as an applicant for admission. We do not speak to the issue of what standard should apply to any determination at the border. See, e.g.,

Doe v. Attorney General, 659 F.3d 266 (3d Cir.2011) (adopting a “probable cause” standard); see also Vartelas v. Holder, [––– U.S. ––––], 132 S.Ct. 1479, 1492 (2012) (implying in dicta that ‘clear and convincing evidence’ might be the appropriate standard for a determination at the border.”)

4. On page 11268 of the slip opinion, first full paragraph (694 F.3d at 1074, third full paragraph), replace the first sentence with

If the border officials get the decision wrong—if in this instance it were later concluded that the border officials lacked the necessary basis to conclude that Gonzaga had engaged in illegal activity—then some remedy might be in order.

5. On page 11272 of the slip opinion (694 F.3d at 1076, last paragraph), add a new sentence after the first two sentences and delete a portion of the second to last sentence. The new sentence is:

Gonzaga did not claim that he was coerced by threats of punishment if he did not admit the allegations against him.

The portion of the second to last sentence to be deleted is “or to have been prejudiced by the admission of his statements”. As amended, the paragraph is:

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. Gonzaga did not claim that he was coerced by threats of punishment if he did not admit the allegations against him. 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 indication that the facts related by Gonzaga during the interview were false, and that Gonzaga in his declaration never mentioned 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. Our conclusion is the same.

With these amendments, the panel has voted to deny the petition for rehearing. Judge Clifton and Judge Murguia voted to deny the petition for rehearing en banc and Judge Collins so recommends.

The full court has been advised of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc, filed on December 13, 2012, are DENIED. No further petition for rehearing and/or petition for rehearing en banc may be filed.

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 Gonzaga 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 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 activity 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 determination. 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 process. 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, Gonzaga 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 daughter, 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 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, Gonzaga'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 varied 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 conducted in Spanish, Gonzaga's native language. It was translated, 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 thereafter paroled into the United States. On May 17, 2004, the Department of Homeland Security initiated removal proceedings against Gonzaga by filing a Notice to Appear with the Immigration Court, charging him as inadmissible under 8 U.S.C. § 1182(a)(6)(E)(i) as an alien who had knowingly “encouraged, 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...