Gonzaga-Ortega

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 8 C.F.R. § 292.5 (b), but that regulation expressly states that it does not provide a right to representation to any “applicant for admission” in primary or secondary inspection except under circumstances that did not apply here. Gonzaga was a lawful permanent resident (“LPR”), and an LPR returning to the United States ordinarily is not treated as an “applicant for admission” under 8 U.S.C. § 1101 (a)(13)(C). That statute contains six exceptions, though, one of which excludes an LPR who “has engaged in illegal activity after having departed the United States.” 8 U.S.C. § 1101 (a)(13)(C)(iii). Gonzaga argues that a finding that he engaged in illegal activity could not properly be made by officers at the border…