Francisco M. Gonzaga-Ortega, Petitioner,
Eric H. Holder, Jr., Attorney General, Respondent.
Argued and Submitted July 18, 2012 —San Francisco, California
Filed September 14, 2012
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A078-460-934
Robert B. Jobe, San Francisco, California, for Petitioner.
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 Respondent.
Before: Richard R. Clifton and Mary H. Murguia, Circuit Judges, and Raner C. Collins, District Judge. [*]
The panel ordered amended its opinion filed on September 14, 2012, and appearing at 694 F.3d 1069, and denied Francisco Gonzaga-Ortega's petition for review of the Board of Immigration Appeals' decision finding him inadmissible for knowingly trying to smuggle his niece across the border.
In the original and amended opinions, the panel held that border officers did not improperly deny Gonzaga-Ortega counsel while questioning him, and that officers were permitted to treat him as an "applicant for admission" under 8 U.S.C. § 1101(a)(13)(C)(iii), with no right to representation under 8 C.F.R. § 292.5(a). The amended opinion clarified that the IJ concluded that the government proved by clear, convincing, and unequivocal evidence that Gonzaga-Ortega engaged in illegal activity after having departed the United States.
The Opinion filed on September 14, 2012, and appearing at 694 F.3d 1069, is amended as follows:
1. On page 11264 of the slip opinion, second full paragraph (694 F.3d at 1072, third full paragraph), replace the third sentence with
The IJ thus concluded that the government had proven by clear, convincing, and unequivocal evidence that Gonzaga had 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
8 U.S.C. § 1101(a)(13)(C)(iii).
2. On page 11266 of the slip opinion, at the end of the paragraph that begins on the previous page (694 F.3d at 1073, first full paragraph), add a footnote and the end of the paragraph, following ". . . criminal investigation." The footnote is:
Gonzaga does not argue on appeal that he was, in fact, the focus of a criminal investigation and had been taken into custody at the time of his interrogation, such that he fell outside the exception in 8 C.F.R. § 292.5 and had a right to representation.
3. On page 11267 of the slip opinion, second full paragraph (694 F.3d at 1074, first full paragraph), replace the final sentence and add a footnote. As amended, the final sentence is:
Such a determination would have to be based upon clear and convincing evidence. See Matter of Rivens, 25 I.&N. Dec. 623, 625–26 (BIA 2011).
The footnote is:
At the removal hearing, the IJ found that the government had proven that Gonzaga was inadmissible as charged and had engaged in illegal activity after departing the United States, by "clear, convincing, and unequivocal" evidence. Gonzaga does not complain about the standard of proof employed by the IJ. Nor does he complain that the border officers applied an improper standard when the determination was made at the border to treat him as an applicant for admission. We do not speak to the issue of what standard should apply to any determination at the border. See, e.g., Doe v. Attorney General, 659 F.3d 266 (3d Cir.2011) (adopting a "probable cause" standard); see also Vartelas v. Holder, 132 ...