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A final administrative determination that a lawful permanent resident (“LPR”) “engaged in illegal activity” while outside the United States is not required for Border officers to treat the LPR as an “applicant for admission,” and thus as not entitled to counsel during primary or secondary inspection.

Francisco Gonzaga-Ortega (“Gonzaga”) is a lawful permanent resident (“LPR”). When returning from Mexico, he was detained at the border and admitted to trying to bring his alien niece into the United States. Homeland Security initiated removal proceedings. At a merits hearing, the Immigration Judge (“IJ”) found that Gonzaga engaged in illegal activity after departing the U.S. for trying to smuggle his niece across the border. As a result, the IJ deemed him an “applicant for admission,” pursuant to 8 U.S.C. § 1101(a)(13)(C)(iii), and denied him admission. Under 8 C.F.R. § 292.5(b), an “applicant for admission” is not entitled to representation during inspection, so, the IJ denied the motion to suppress Gonzaga’s confession at the border, found him inadmissible, and ordered him removed. The Board of Immigration Appeals (“BIA”) dismissed Gonzaga’s appeal of the order. Gonzaga petitioned the Ninth Circuit to review the BIA’s decision. In agreement, the Ninth Circuit reiterated that (1) the IJ and the BIA rejected Gonzaga’s contention that his confession was coerced, citing “Gonzaga’s own statements in the transcribed interview that he had been treated ‘fine’ and that he made his statements ‘voluntarily’”; (2) the IJ characterized Gonzaga’s 28-hour detention as brief, noted no signs of physical abuse, no indication that Gonzaga’s statements were false, and no denial of criminal involvement; and (3) the BIA found no support for Gonzaga’s claims that he was denied a fair hearing or prejudiced by his admissions. Thus, because Gonzaga was properly deemed an “applicant for admission,” the Ninth Circuit concluded that he was not entitled to counsel during primary or secondary inspection, and the IJ and BIA did not err in considering his confession. PETITION DENIED.