                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 FRANCISCO M. GONZAGA -                         No. 07-74361
 ORTEGA ,
                  Petitioner,                    Agency No.
                                                A078-460-934
                  v.

 ERIC H. HOLDER, JR., Attorney               ORDER AND
 General,                                  AMENDED OPINION
                   Respondent.


          On Petition for Review of an Order of the
              Board of Immigration Appeals

                     Argued and Submitted
           July 18, 2012—San Francisco, California

                    Filed September 14, 2012
                     Amended June 7, 2013

 Before: Richard R. Clifton and Mary H. Murguia, Circuit
      Judges, and Raner C. Collins, District Judge.*

                             Order;
                    Opinion by Judge Clifton


 *
   The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, sitting by designation.
2                GONZAGA -ORTEGA V . HOLDER

                           SUMMARY**


                            Immigration

    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.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               GONZAGA -ORTEGA V . HOLDER                    3

                         COUNSEL

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.


                          ORDER

    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:
4              GONZAGA -ORTEGA V . HOLDER

       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.
               GONZAGA -ORTEGA V . HOLDER                    5

       2011) (adopting a “probable cause” standard);
       see also Vartelas v. Holder, 132 S. Ct. 1479,
       1492 (2012) (implying in dicta that ‘clear and
       convincing evidence’ might be the appropriate
       standard for a determination at the border.”)

    4. On page 11268 of the slip opinion, first full paragraph
(694 F.3d at 1074, third full paragraph), replace the first
sentence with

          If the border officials get the decision
       wrong—if in this instance it were later
       concluded that the border officials lacked the
       necessary basis to conclude that Gonzaga had
       engaged in illegal activity—then some
       remedy might be in order.

    5. On page 11272 of the slip opinion (694 F.3d at 1076,
last paragraph), add a new sentence after the first two
sentences and delete a portion of the second to last sentence.
The new sentence is:

       Gonzaga did not claim that he was coerced by
       threats of punishment if he did not admit the
       allegations against him.

The portion of the second to last sentence to be deleted is “or
to have been prejudiced by the admission of his statements”.
As amended, the paragraph is:

           Gonzaga’s contention that his confession
       was coerced was rejected by the IJ and the
       BIA. The IJ concluded that there was no basis
       for believing that Gonzaga had been cajoled
6             GONZAGA -ORTEGA V . HOLDER

       into giving the officers a statement against his
       will. Gonzaga did not claim that he was
       coerced by threats of punishment if he did not
       admit the allegations against him. The IJ
       cited Gonzaga’s own statements in the
       transcribed interview that he had been treated
       “fine” and that he made his statements
       “voluntarily.” The IJ also cited the lack of any
       indication of physical abuse, and the relatively
       brief period that Gonzaga was held. He also
       noted that there was no indication that the
       facts related by Gonzaga during the interview
       were false, and that Gonzaga in his
       declaration never mentioned his niece’s
       presence or denied his involvement in alien
       smuggling. The BIA similarly concluded that
       there was no support in the record for
       Gonzaga’s claims to have been denied a fair
       hearing. Our conclusion is the same.

    With these amendments, the panel has voted to deny the
petition for rehearing. Judge Clifton and Judge Murguia
voted to deny the petition for rehearing en banc and Judge
Collins so recommends.

    The full court has been advised of the petition for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.

    The petition for rehearing and petition for rehearing en
banc, filed on December 13, 2012, are DENIED. No further
petition for rehearing and/or petition for rehearing en banc
may be filed.
               GONZAGA -ORTEGA V . HOLDER                     7

                          OPINION

CLIFTON, Circuit Judge:

    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 and that he was entitled to counsel until
a final administrative determination had been made by an
Immigration Judge (“IJ”) and the BIA. We disagree and hold
that the border officers were permitted to treat Gonzaga as an
applicant for admission based on their conclusion that
Gonzaga had engaged in illegal activity, without waiting for
a final administrative determination. We also reject
Gonzaga’s claims that his statements admitting the attempt to
smuggle his niece across the border were coerced and used
8              GONZAGA -ORTEGA V . HOLDER

against him in violation of due process. We therefore deny
the petition.

I. Background

    Gonzaga is a native and citizen of Mexico. He entered
the United States illegally in 1989 but was granted LPR status
in 2001.

    After a one-week vacation visiting family in Mexico,
Gonzaga attempted to reenter the United States at the San
Ysidro Port of Entry on May 12, 2004, at approximately
6 p.m. In the car with Gonzaga were his wife, their
eight-month old daughter, and their fifteen-year-old niece,
Marisol Madera Arroyo. Gonzaga presented his resident alien
card, his wife presented her valid visitor visa and a United
States birth certificate on behalf of their daughter, and the
niece orally declared herself to be a United States citizen.
Suspecting the niece of making a false statement, the officer
at the primary inspection point referred the vehicle and its
occupants to secondary inspection for further investigation.
During secondary inspection, Gonzaga’s niece admitted to
being a citizen of Mexico with no legal documents or benefits
to enter, pass through, or reside in the United States.

    After being detained for most of the night, Gonzaga’s
wife and daughter were released early the next morning.
Gonzaga was also detained overnight and was interviewed
late the next day by Officer Georgina Rios, with another
officer acting as a witness. Rios later testified that it was
regular practice to conduct interviews as soon as possible, but
the time delay varied depending on caseload. In Gonzaga’s
case, his formal interview was conducted approximately 28
hours after he presented himself at the port of entry. The
              GONZAGA -ORTEGA V . HOLDER                    9

interview was conducted in Spanish, Gonzaga’s native
language. It was translated, transcribed and later admitted
into evidence by the IJ as a record of sworn statement.

    During the interview Gonzaga disclosed that he agreed to
bring his niece over the border at the request of her parents.
He said that he knew his niece had no legal documents to
enter the United States, and that he told her she should say
she was a United States citizen if anyone asked. At the end
of the interview, Gonzaga stated that he had been treated
“fine” since arriving at the immigration station and agreed
that he had given his statement “voluntarily,” not having been
forced or threatened in any way.

    Rios recorded information taken from the interview in a
Form I-213, Record of Deportable/Inadmissible Alien. Rios
served Gonzaga with a Notice to Appear, and he was
thereafter paroled into the United States. On May 17, 2004,
the Department of Homeland Security initiated removal
proceedings against Gonzaga by filing a Notice to Appear
with the Immigration Court, charging him as inadmissible
under 8 U.S.C. § 1182(a)(6)(E)(i) as an alien who had
knowingly “encouraged, induced, assisted, abetted, or aided
any other alien to enter or try to enter the United States in
violation of law.”

    Before the IJ, Gonzaga filed a motion to suppress all
physical and testimonial evidence obtained or derived as a
result of his interrogation at the secondary inspection point.
He also submitted a sworn declaration describing the
conditions of his detention. In this declaration, Gonzaga
described being held for approximately 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 claims
10             GONZAGA -ORTEGA V . HOLDER

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. Gonzaga stated that Rios yelled at him and
pressured him to tell his story, and that she never informed
him that he had the right to remain silent or the right to retain
counsel. In her testimony before the IJ, Rios denied ever
yelling, threatening, or pressuring Gonzaga.

    The IJ conducted a merits hearing on May 24, 2006, at the
conclusion of which he rendered an oral decision denying
Gonzaga’s motion to suppress, finding Gonzaga inadmissible
as charged, and ordering him removed to Mexico. Relying on
the sworn interview transcript, the report of the interview
contained in the Form I-213, and testimony by Officer Rios,
the IJ concluded that Gonzaga knowingly attempted to
smuggle his alien niece across the border. 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). In denying Gonzaga’s motion to
suppress, the IJ held that Gonzaga had not been entitled to
have an attorney present during the secondary inspection
because he was properly treated as an arriving alien, so that
8 C.F.R. § 292.5(b) did not apply even though Gonzaga was
an LPR. The IJ also found that the conditions in which
Gonzaga was held were not unsatisfactory and that he had not
been coerced into giving his confession. Gonzaga appealed
this decision to the BIA.

    The BIA adopted and affirmed the decision of the IJ, with
a citation to Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994), adding a few comments in support of the
               GONZAGA -ORTEGA V . HOLDER                   11

conclusion. The BIA specifically stated that the IJ did not err
in admitting the record of sworn statement and Form I-213.
It also cited Rios’s testimony to further support the veracity
of the information contained in these two documents.
Finally, it held that Gonzaga’s due process rights were not
violated.

II. Discussion

    When the BIA adopts the IJ’s decision with a citation to
Matter of Burbano and also adds its own comments, as it did
here, we review the decisions of both the BIA and the IJ. See
Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011). We
review determinations of purely legal questions, including
claims of due process violations, de novo. Cruz Rendon v.
Holder, 603 F.3d 1104, 1109 (9th Cir. 2010); Hamazaspyan
v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). Findings of
fact, such as whether an individual engaged in alien
smuggling, are reviewed for substantial evidence and upheld
“‘unless any reasonable adjudicator would be compelled to
conclude to the contrary.’” Lopez-Cardona v. Holder,
662 F.3d 1110, 1111 (9th Cir. 2011) (quoting 8 U.S.C.
§ 1252(b)(4)(B)).

   A. The Right to Counsel Under 8 C.F.R. § 292.5(b)

    Gonzaga contends that he was entitled to counsel during
secondary inspection at the port of entry under 8 C.F.R.
§ 292.5(b), and that any statements made thereafter and all
other evidence obtained as a result should have been excluded
from consideration because he was denied counsel.
12               GONZAGA -ORTEGA V . HOLDER

      The regulation states:

         Whenever an examination is provided for in
         this chapter, the person involved shall have
         the right to be represented by an attorney or
         representative . . . . Provided, that nothing in
         this paragraph shall be construed to provide
         any applicant for admission in either primary
         or secondary inspection the right to
         representation, unless the applicant for
         admission has become the focus of a criminal
         investigation and has been taken into custody.

8 C.F.R. § 292.5(b). The IJ, affirmed by the BIA, held that
Gonzaga did not have a right to representation at secondary
inspection because he fell within the express exception for an
“applicant for admission” who had not become the focus of
a criminal investigation.1

    Ordinarily a returning LPR is not treated as an “applicant
for admission.” But the statute that so provides includes six
exceptions, one of which covered Gonzaga. The statute states
that “[a]n alien lawfully admitted for permanent residence in
the United States shall not be regarded as seeking an
admission into the United States for purposes of the
immigration laws unless the alien . . . has engaged in illegal
activity after having departed the United States.” 8 U.S.C.
§ 1101(a)(13)(C)(iii); see United States v. Tsai, 282 F.3d 690,



  1
    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.
               GONZAGA -ORTEGA V . HOLDER                    13

696 n.5 (9th Cir. 2002); see also Vartelas v. Holder, 132 S.
Ct. 1479, 1484–85 (2012).

    The IJ concluded that Gonzaga had engaged in illegal
activity after departing the United States by his “conscious
participation in an unlawful scheme to try to get his niece
Marisol across the border illegally.” Such activity constitutes
a criminal act under 8 U.S.C. § 1324(a)(2), which provides
criminal penalties for “[a]ny person who, knowing or in
reckless disregard of the fact that an alien has not received
prior official authorization to come to, enter, or reside in the
United States, brings to or attempts to bring to the Untied
States in any manner whatsoever, such alien.” The IJ noted
that Gonzaga had not presented any defense to the substance
of the alien smuggling charge.

    Gonzaga has not presented any defense or denied his
involvement in alien smuggling in his petition to this court,
either. Nor has he denied that his participation in the attempt
to bring his niece across the border constituted “illegal
activity,” though he did note that the government did not
thereafter bring any criminal charges against him.

    The thrust of the argument presented to us by Gonzaga is
that a determination as to whether an LPR is subject to one of
the exceptions set forth in 8 U.S.C. § 1101(a)(13)(C) can only
be made by an IJ and the BIA and cannot be made by
immigration officers at the border. He does not argue that the
later determination by the IJ, affirmed by the BIA, that
Gonzaga had engaged in illegal activity was incorrect, though
he complains that it was based upon evidence that should not
have been considered, including his confession. Instead, he
argues, in the words of his opening brief, that “lawful
permanent residents like [himself] have ‘the right to be
14                GONZAGA -ORTEGA V . HOLDER

represented by an attorney or other representative’ until there
is a final administrative determination that they have engaged
in activities which except them from the general rule set forth
in INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C).” 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).2

    Gonzaga’s argument is not consistent with the language
of the statute or with logic. 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. It cannot wait for the ultimate adjudication of that
person’s case before an IJ and the BIA many years later. The
INA assigns responsibility to immigration officers to make
decisions regarding the admission of persons who present


  2
    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 U nited 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. W e 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 S. Ct. 1479,
1492 (2012) (implying in dicta that “clear and convincing evidence” might
be the appropriate standard for a determination at the border.)
               GONZAGA -ORTEGA V . HOLDER                   15

themselves at the border. See, e.g., 8 U.S.C. § 1225(b)(2).
Those decisions are subject to review, but the officers are
entitled to make them.

    If the border officials get the decision wrong—if in this
instance it were later concluded that the border officials
lacked the necessary basis to conclude that Gonzaga had
engaged in illegal activity—then some remedy might be in
order. But in this case, they did not get the decision wrong.
As a result, we do not need to reach the question of what
remedy, including exclusion of evidence, would be
appropriate. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038
(1984).

    In a letter submitted to us under Fed. R. App. P. 28(j) and
at oral argument, Gonzaga cited a decision of the Supreme
Court earlier this year, Vartelas v. Holder, 132 S. Ct. 1479
(2012), in support of his argument. That case involved
another one of the six exceptions in 8 U.S.C.
§ 1101(a)(13)(C) under which an LPR should be treated
instead as an “applicant for admission,” specifically the
exception in subpart (v). Under that provision, an LPR
should not be treated as an applicant for admission, unless he
“has committed an offense identified in section 1182(a)(2) of
this title.” 8 U.S.C. § 1101(a)(13)(C)(v). Offenses identified
in § 1182(a)(2) include “a crime involving moral turpitude
(other than a purely political offense) or an attempt or
conspiracy to commit such a crime.”                 8 U.S.C.
§ 1182(a)(2)(A)(i)(I); see Vartelas, 132 S. Ct. at 1485.

   The six exceptions for treating an LPR as an applicant for
admission were added to the statute as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), 110 Stat. 3009-546. The holding of
16             GONZAGA -ORTEGA V . HOLDER

Vartelas, that the 1996 amendment should not be applied
retroactively to Vartelas based on his 1994 plea of guilty to
a felony prior to the adoption of the amendment, does not
help Gonzaga. Gonzaga became an LPR after IIRIRA was
enacted, and the illegal activity in which he was found to
have engaged similarly took place after the enactment, in
2004, so there is no element of retroactivity involved here.

    Gonzaga attempts, nonetheless, to squeeze support from
comments made at the end of the majority opinion in
Vartelas, in response to the dissent, drawing support from the
Supreme Court’s previous decision in INS v. St. Cyr, 533 U.S.
289 (2001). In the course of that discussion, the Court said in
Vartelas that it saw no practical difference between the
statutory provision relevant in St. Cyr, which referred to an
alien’s “convict[ion]” of a crime and the provision relevant in
Vartelas, “committed an offense.” Those two statutory
references in the Court’s decision were followed by a
footnote:

       After the words “committed an offense,”
       § 1101(a)(13)(C)(v)’ s next words are
       “identified in section 1182(a)(2).” That
       section refers to “any alien convicted of, or
       who admits having committed,” inter alia, “a
       crime involving moral turpitude.”
       § 1182(a)(2)(A)(i)(I) (emphasis added). The
       entire § 1101(a)(13)(C)(v) phrase “committed
       an offense identified in section 1182(a)(2),”
       on straightforward reading, appears to advert
       to a lawful permanent resident who has been
       convicted of an offense under § 1182(a)(2) (or
       admits to one).
              GONZAGA -ORTEGA V . HOLDER                   17

Vartelas, 132 S. Ct. at 1492 n.11. The decision then went on
to state: “Ordinarily, to determine whether there is clear and
convincing evidence that an alien has committed a qualifying
crime, the immigration officer at the border would check the
alien’s records for a conviction. He would not call into
session a piepowder court to entertain a plea or conduct a
trial.” Id. at 1492. Another footnote provided a helpful
explanation of the term “piepowder court”:

       Piepowder (“dusty feet”) courts were
       temporary mercantile courts held at trade fairs
       in Medieval Europe; local merchants and
       guild members would assemble to hear
       commercial disputes. These courts provided
       fast and informal resolution of trade conflicts,
       settling cases “while the merchants’ feet were
       still dusty.” Callahan, Medieval Church
       Norms and Fiduciary Duties in Partnership,
       26 Cardozo L. Rev. 215, 235, and n. 99
       (2004) (internal quotation marks omitted)
       (quoting H. Berman, Law and Revolution:
       The Formation of the Western Legal Tradition
       347 (1983)).

Id. at 1492 n.12.

    From this discussion Gonzaga seeks to infer support for
the proposition that an immigration officer at the border is
precluded from making a determination that a returning LPR
should be treated as an applicant for admission and is limited
to relying upon a prior conviction or an admission by the
alien that he had in fact committed the offense. Leaving aside
the remoteness of this discussion from the actual holding in
18             GONZAGA -ORTEGA V . HOLDER

Vartelas, we disagree with Gonzaga’s interpretation for two
separate reasons.

    First, the purported interpretation of § 1101(a)(13)(C)(v)
to require a conviction or confession does not speak to the
provision that was applied to Gonzaga, subpart (iii), as
someone who “has engaged in illegal activity after having
departed the United States.” The Court’s explanation in
footnote 10 of the requirement for a conviction or confession
was explicitly based on the language of the section of the
statute referred to in subpart (v), § 1182(a)(2), as the
quotation of footnote 10 above illustrates. There is no similar
limiting reference in subpart (iii) requiring a prior conviction
or confession. Moreover, if the illegal activity was engaged
in after departure from the United States, there presumably
could not have been a conviction, at least not in a United
States court, by the time the alien presented himself at the
port of entry seeking to reenter the country.

    Second, as noted above, the decision as to how Gonzaga
was to be treated at the port of entry was necessarily one that
had to be made by officers at the border. It was subject to
subsequent review by an IJ and the BIA and by this court.
The border officers did not need to convene any piepowder
court, for that review was available in due course, and
Gonzaga has obtained it. If the officers’ determination was
held to be incorrect, an appropriate remedy might be
considered. But the determination in this case that Gonzaga
had engaged in illegal activity after having departed the
United States was not incorrect. Treating him as an applicant
for admission did not deny him any legal rights.

   Because Gonzaga was properly deemed an “applicant for
admission” pursuant to 8 U.S.C. § 1101(a)(13)(C)(iii), we
               GONZAGA -ORTEGA V . HOLDER                   19

conclude that 8 C.F.R. § 292.5(b) did not entitle him to
counsel during primary or secondary inspection.
Accordingly, because the immigration officers did not obtain
Gonzaga’s confession in violation of the regulation, the IJ and
BIA did not err in considering it. See Chuyon Yon Hong v.
Mukasey, 518 F.3d 1030, 1036 (9th Cir. 2008).

   B. Due Process Violation

    “Immigration proceedings . . . must conform to the Fifth
Amendment’s requirement of due process.” Salgado-Diaz v.
Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005). “Expulsion
cannot turn upon utterances cudgeled from the alien by
governmental authorities; statements made by the alien and
used to achieve his deportation must be voluntarily given.”
Bong Youn Choy v. Barber, 279 F.2d 642, 646 (9th Cir.
1960). Gonzaga must demonstrate error and substantial
prejudice to prevail on a due process claim. Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000).

    Gonzaga’s contention that his confession was coerced
was rejected by the IJ and the BIA. The IJ concluded that
there was no basis for believing that Gonzaga had been
cajoled into giving the officers a statement against his will.
Gonzaga did not claim that he was coerced by threats of
punishment if he did not admit the allegations against him.
The IJ cited Gonzaga’s own statements in the transcribed
interview that he had been treated “fine” and that he made his
statements “voluntarily.” The IJ also cited the lack of any
indication of physical abuse, and the relatively brief period
that Gonzaga was held. He also noted that there was no
indication that the facts related by Gonzaga during the
interview were false, and that Gonzaga in his declaration
never mentioned his niece’s presence or denied his
20            GONZAGA -ORTEGA V . HOLDER

involvement in alien smuggling. The BIA similarly concluded
that there was no support in the record for Gonzaga’s claims
to have been denied a fair hearing. Our conclusion is the
same.

     PETITION DENIED.
