Jovita De Perfecto v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 31 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOVITA GARCIA DE PERFECTO, No. 15-73663 Petitioner, Agency No. A058-385-731 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 23, 2017** Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges. Jovita Garcia de Perfecto, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s decision denying cancellation of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, and we review de novo questions of law and constitutional claims. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review. Perfecto was properly charged as an arriving alien, where the government met its burden of demonstrating by clear and convincing evidence that she engaged in illegal activity after having departed the United States. See 8 U.S.C. § 1101(a)(13)(C)(iii). Perfecto’s contention that she cannot be charged as inadmissible because her departure was brief, casual, and innocent, lacks merit. See Camins v. Gonzales, 500 F.3d 872, 879-80 (9th Cir. 2007) (the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 abrogated the Fleuti doctrine); see also Gonzaga-Ortega v. Holder, 736 F.3d 795, 801-04 (9th Cir. 2013) (legal permanent resident was properly treated as an applicant for admission under 8 U.S.C. § 1101(a)(13)(C)(iii) upon return because he engaged in alien smuggling after having departing the United States). Perfecto has waived her contention that 8 U.S.C. § 1101(a)(13)(C)(iii) violates the due process rights of legal permanent residents. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in an opening brief are waived). The agency did not err or violate due process in denying Perfecto’s motion 2 15-73663 to terminate proceedings, where she did not demonstrate that her statements to immigration officials at the border were obtained through any regulatory violation. See Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir. 2009) (“Section 287.3(c) requires the INS to inform aliens who have been ‘arrested without warrant and placed in formal proceedings’ of their procedural rights. Formal removal proceedings do not commence until the INS has filed an NTA in the immigration court.”); see also id. at 901 n.6 (“§ 287.3 does not require the government to notify the alien of a right to remain silent or a right against self-incrimination.”); Gonzaga-Ortega, 736 F.3d at 804 (because petitioner was properly deemed an applicant for admission, 8 C.F.R. § 292.5(b) did not entitle him to counsel during primary or ...

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