Jovita De Perfecto v. Jefferson Sessions, 700 F. App'x 780

Petitioner Jovita Garcia de Perfecto, a Mexican national, was charged as an arriving alien after engaging in illegal activity following a departure from the United States. She sought cancellation of removal and CAT protection.
Immigration Judge denied relief; the Board of Immigration Appeals (BIA) dismissed her appeal. Perfecto petitioned for review in the Ninth Circuit.
Government showed by clear and convincing evidence that Perfecto engaged in prohibited conduct after leaving the U.S., triggering treatment as an applicant for admission under 8 U.S.C. § 1101(a)(13)(C)(iii).
Perfecto argued she was eligible as a returning resident (brief, casual, innocent departure), that regulatory violations tainted her border statements, that she was denied consular access, and that she met the seven-year continuous residence requirement for cancellation.
The agency found she did not accrue seven years of continuous residence (admitted Aug 22, 2001; NTA served Nov 20, 2006) and denied CAT relief for failure to show likelihood of torture by or with government consent/acquiescence.
Ninth Circuit reviewed de novo legal claims and constitutional issues and for substantial evidence factual findings, and denied the petition for review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper classification as arriving alien under § 1101(a)(13)(C)(iii)	Perfecto: Departure was brief, casual, and innocent; cannot be treated as applicant for admission	Government: She engaged in illegal activity after departure, so classification is proper	Court: Treated properly as arriving alien; Fleuti doctrine abrogated
Due process challenge to § 1101(a)(13)(C)(iii)	Perfecto: Statute violates due process rights of LPRs	Government: Statute valid; procedural protections applied properly	Court: Issue waived for failure to raise in opening brief
Alleged regulatory/constitutional violations at border (statements, counsel, consular access)	Perfecto: Statements obtained in violation of regulatory rights; entitled to counsel/consular access; de Rodriguez-Echeverria controls	Government: No regulatory violation shown; applicable rules do not require counsel during inspection; consular claim waived	Court: No error or prejudice shown; claims rejected or waived
Cancellation of removal and continuous residence requirement	Perfecto: Began accruing continuous residence before 2001 admission	Government: Continuous residence accrues from lawful admission; NTA cut accrual short	Court: Substantial evidence that she failed to meet seven-year requirement; contention rejected
CAT protection	Perfecto: Risk of torture upon return to Mexico	Government: No showing government would torture or acquiesce	Court: Substantial evidence supports denial of CAT relief

Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (standard of review: de novo for law, substantial evidence for facts)
Camins v. Gonzales, 500 F.3d 872 (9th Cir. 2007) (IIRIRA abrogated Fleuti doctrine regarding brief departures)
Gonzaga-Ortega v. Holder, 736 F.3d 795 (9th Cir. 2013) (returning resident properly treated as applicant for admission after alien smuggling)
Rizk v. Holder, 629 F.3d 1083 (9th Cir. 2011) (issues not raised in opening brief are waived)
Samayoa-Martinez v. Holder, 558 F.3d 897 (9th Cir. 2009) (§ 287.3(c) notice obligations and when formal proceedings commence)
de Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047 (9th Cir. 2008) (decision discussed but not controlling for petitioner)
Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (due process challenge requires showing of error and substantial prejudice)
Vasquez de Alcantar v. Holder, 645 F.3d 1097 (9th Cir. 2011) (application for adjustment does not count as admission for cancellation accrual)
Silaya v. Mukasey, 524 F.3d 1066 (9th Cir. 2008) (standard for CAT: likelihood of torture and government consent/acquiescence)