Gonzaga-Ortega v. Holder, 694 F.3d 1069

Gonzaga-Ortega, a Mexican native and lawful permanent resident since 2001, attempted to reenter the U.S. on May 12, 2004 with his wife, infant daughter, and his niece Marisol Arroyo.
The niece claimed U.S. citizenship but lacked documents; she was found to be a Mexican citizen with no admissible status.
Gonzaga was detained and interviewed ~28 hours after presenting at the port of entry; interview conducted in Spanish and later admitted as sworn testimony.
A Form I-213 record and interview transcript were used by the IJ to find that Gonzaga knowingly assisted his niece to enter illegally, constituting illegal activity after departure.
The IJ denied Gonzaga’s motion to suppress the interview evidence, ruled Gonzaga an arriving alien, and ordered removal; the BIA affirmed.
Gonzaga argued he was entitled to counsel at secondary inspection under 8 C.F.R. § 292.5(b); the government contended that he fell within the exception for an “applicant for admission” who engaged in illegal activity after departing the United States.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to counsel at secondary inspection under § 292.5(b)	Gonzaga asserts LPR status but entitlement to counsel during secondary inspection.	Officers may treat him as an applicant for admission due to illegal activity after departure.	No right to counsel; treated as applicant for admission at the border.
Authority of border officers to classify as applicant for admission	Classification must await IJ/BIA determination.	Border officers may decide on admission status at the border.	Border officers may determine admission status at the border; no need to wait for final determination.
Due process and coerced statements	Gonzaga alleges coercion and denial of fair hearing.	IJ and BIA found statements voluntary and not coerced.	No due process violation; statements voluntary and properly considered.
Legal standard for reviewing LPR exceptions to admission	Vartelas limits border determinations; retroactivity concerns.	IIRIRA exceptions apply; border review not retroactive to Gonzaga.	Gonzaga properly classified under § 1101(a)(13)(C)(iii); not retroactive.

United States v. Tsai, 282 F.3d 690 (9th Cir. 2002) (supports interpretation of § 1101(a)(13)(C)(iii))
Vartelas v. Holder, 132 S. Ct. 1479 (S. Ct. 2012) (limits retroactivity; discusses examples of LPR treatment as applicant for admission)
INS v. Lopez-Mendoza, 468 U.S. 1032 (U.S. 1984) (remedial controls when evidence is improperly obtained)
Vartelas v. Holder, 132 S. Ct. 1479 (S. Ct. 2012) (discusses piepowder court reference and border determinations)
Chuyon Yon Hong v. Mukasey, 518 F.3d 1030 (9th Cir. 2008) (admissibility of interview records and voluntary statements)
Ali v. Holder, 637 F.3d 1025 (9th Cir. 2011) (review of BIA and IJ determinations; de novo on legal questions)