Monday, September 17, 2012
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Ninth Circuit Upholds Removal of Legal Resident Who Claimed He Was Mistreated at Border by Authorities
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday upheld an immigration judge’s order for removal from the United States of a legal permanent resident who attempted to bring his undocumented niece across the border from Mexico.
The panel upheld rulings by the IJ and the Board of Immigration Appeals that border agents were not required to provide Francisco Gonzaga-Ortega the opportunity to have a lawyer present during questioning. Legal residents normally have that right, Judge Richard Clifton explained, but Gonzaga fell under a statutory exception applicable to those who have “engaged in illegal activity after having departed the United States.”
The Department of Homeland Security began removal proceedings in 2004, saying Gonzaga was no longer entitled to legal status in this country because he had knowingly “encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of law.”
DHS cited Gonzaga’s admission during questioning at the San Ysidro port of entry that his 15-year-old niece was lying when she told inspectors that she was a United States citizen. The girl, who had no documentation, was a passenger in Gonzaga’s car, along with Gonzaga’s wife, who had a valid visitor’s visa, and their infant daughter, who was born in the United States.
Gonzaga himself acquired legal status in 2001, 12 years after he entered the country without documentation.
Gonzaga asked the IJ to suppress all physical and testimonial evidence obtained or derived as a result of his interrogation at the secondary inspection point, on grounds of denial of counsel and coercion. He claimed that he was held for 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 claimed 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.
He also accused the interrogating agent of yelling and pressuring him to tell his story. The agent denied yelling, threatening, or pressuring him.
The IJ ruled that border agents may determine, at the port of entry, that the alien has engaged in illegal activity and is thus not entitled to counsel, rejecting the argument that only an immigration judge can make such a determination.
The IJ, and subsequently the BIA, also concluded that Gonzaga’s interrogation was not, under the totality of the circumstances, coercive as a matter of law.
Clifton explained that Gonzaga was properly denied counsel under 8 C.F.R. § 292.5(b), which says that an alien generally has no right to counsel if an “applicant for admission” in primary or secondary inspection. By statute, a legal permanent resident is treated as an applicant for admission in six specific situations, including following commission of illegal activity outside the country.
“Gonzaga’s argument is not consistent with the language of the statute or with logic,” the appellate judge wrote. “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.”
The judge went on to say that the coercion claim was inconsistent with the transcript of Gonzaga’s interrogation, in which he said he had been treated “fine” and had made his statements “voluntarily.” There were, Clifton added, no signs of physical abuse or evidence that Gonzaga’s admissions were false.
The case is Gonzaga-Ortega v. Holder, 07-74361.
Copyright 2012, Metropolitan News Company