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.
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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 the respondent.
Before: RICHARD R. CLIFTON and MARY H. MURGUIA, Circuit Judges, and RANER C. COLLINS, District Judge.*
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
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
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
Before the IJ, Gonzaga filed a motion to suppress all physical 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 testimony 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 contained 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
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 conclusion. 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 Bur-bano 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
A. The Right to Counsel Under 8 C.F.R. § 292.5(b)
Gonzaga contends that he was entitled to counsel during secondary inspection at the port of entry under
The regulation states:
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 construed 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.
Ordinarily a returning LPR is not treated as an “applicant 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 residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien . . . has engaged in illegal activity after having departed the United States.”
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
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 activity,” though he did note that the government did not thereafter bring any criminal charges against him.
Gonzaga’s argument is not consistent with the language 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 activity.” 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 border. It cannot wait for the ultimate adjudication of that person’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.,
If the border officials get the decision wrong—if in this instance Gonzaga later was found not to have engaged in illegal 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, 104 S.Ct. 3479, 82 L.Ed.2d 778 (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, — U.S. —, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012), in support of his argument. That case involved another one of the six exceptions in
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 Vartelas, that the 1996 amendment should not be applied retroactively to Vartelas based on his 1994 plea of guilty to a felony prior to the adoption of the amendment, does not help Gonzaga. Gonzaga became an LPR after
Gonzaga attempts, nonetheless, to squeeze support from comments made at the end of the majority opinion in Vartelas, in response to the dissent, drawing support from the Supreme Court’s previous decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). In the course of that discussion, the Court said in Vartelas that it saw no practical difference between the statutory provision relevant in St. Cyr, which referred to an alien’s “convict[ion]” of a crime and the provision relevant in Vartelas, “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 insection 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 insection 1182(a)(2) ,” on straightforward reading, appears to advert to a lawful permanent resident 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 session 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”:
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 conflicts, 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)).
From this discussion Gonzaga seeks to infer support for the proposition that an immigration officer at the border is precluded 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 Vartelas, we disagree with Gonzaga’s interpretation for two separate reasons.
First, the purported interpretation of
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 subsequent 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 incorrect, 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 incorrect. Treating him as an applicant for admission did not deny him any legal rights.
Because Gonzaga was properly deemed an “applicant for admission” pursuant to
B. Due Process Violation
“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). “Expulsion 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 prejudice to prevail on a due process claim. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000).
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 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 or to have been prejudiced by the admission of his statements. Our conclusion is the same.
PETITION DENIED.