Gonzaga-Ortega v. Holder, 736 F.3d 795

Gonzaga, an Mexican national, became a lawful permanent resident (LPR) in 2001 and attempted to reenter the U.S. in May 2004 at San Ysidro with his wife, infant daughter, and niece Marisol Arroyo; the niece falsely claimed U.S. citizenship and, after secondary inspection, admitted lack of legal status which led to Gonzaga’s detention.
Gonzaga was interviewed about 28 hours after presenting at the port; interview was conducted in Spanish, translated, and later admitted as evidence via Form 1-213 and the interview transcript.
The IJ denied Gonzaga’s suppression motion, found he had engaged in illegal activity after departing the U.S., treated him as an arriving alien, and denied admission; the BIA affirmed, adopting the IJ’s decision with some additional comments.
Gonzaga argued he was entitled to counsel during secondary inspection under 8 C.F.R. § 292.5(b) and that the evidence (including his confession) should be excluded; the IJ/BIA held no right to counsel and admitted the evidence; the circuit affirmed, ruling border officers could treat him as an applicant for admission for purpose of the regulation and that the confession was properly admitted.
The petition for rehearing en banc was denied; the panel’s amendments to the opinion were part of the denial of the petition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether border officers could treat Gonzaga as an applicant for admission at the port of entry.	Gonzaga argues LPRs cannot be treated as applicants without final IJ/BIA determination.	Gonzaga was properly deemed an applicant for admission under 8 U.S.C. § 1101(a)(13)(C)(iii).	Yes; border officers may treat him as an applicant for admission at the border.
Whether Gonzaga was entitled to counsel during secondary inspection under 8 C.F.R. § 292.5(b).	Gonzaga asserts right to counsel until final administrative determination.	Regulation exempts non-focus of criminal investigation; no right to counsel here.	No; regulation does not require counsel at secondary inspection when the focus is not a criminal investigation at the border.
Whether the confession obtained at the border was admissible and properly considered.	Gonzaga contends the confession was coerced and should be excluded.	Statements were voluntary; no coercion found by IJ or BIA.	Admissible; no due process violation found.
Whether the standard of proof and related determinations at the border were properly applied given Vartelas and related cases.	Gonzaga suggests stricter standards (e.g., clear and convincing) apply at the border.	Border determinations need not rely on final IJ/BIA standard; court not addressing border-standard except noting it.	Court did not require retroactive or uniform application of a border-specific standard beyond recognizing admissibility and later review.

Doe v. Attorney General, 659 F.3d 266 (3d Cir.2011) (adopting probable cause standard at border in some contexts)
Lopez-Mendoza, 468 U.S. 1032 (1984) (due process and exclusionary principles at border)
Tsai, United States v., 282 F.3d 690 (9th Cir.2002) (treating certain LPRs as non-applicants for admission under specific circumstances)
Vartelas v. Holder, 132 S. Ct. 1479 (2012) (limitation on retroactivity and interpretation of LPR exemptions under IIRIRA)
Chuyon Yon Hong v. Mukasey, 518 F.3d 1030 (9th Cir.2008) (due process and admissibility considerations at border)