NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOVITA GARCIA DE PERFECTO,

Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 15

- 73663 Agency No. A058

- 385

- 731

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 23, 2017 **

B efore: 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 Agai nst 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). 

# FILED

OCT 31 2017
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 15

- 73663

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
inadmissib l e 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 Immigr ant Responsibility Act of 1996 abrogate d 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)(i ii) 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)

. T he agency did not err or violate due process in denying Perfecto’ s motion3 15

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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

a nd placed in formal p roceedings’ 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 8 04 ( 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 secondary inspection ); Lata v. INS , 204 F.3d 1241, 1246 (9th Cir. 2000) (an alien must show error and substantial prejudice to prevail on a due process claim). To the extent Perfecto contends that de Rodriguez

- Echeverria v. Mukasey , 534 F.3d 1047 (9th Cir. 2008), controls the result of h er case , we reject th is
contention. Perfecto has not addressed the BIA’s determination that she waived any challenge regarding the alleged violation of her regulatory privilege to
communicat e with a Mexican consular officer

. See Rizk , 629 F.3d at 1091 n.3

. Substantial evidence supports the agency’s determination that Perfecto failed
to establish the seven years of continuous residence required for cancellation of4 15

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removal, where she was admitted into the United States on or about August 22, 2001, and she was served a notice to appear on November 20, 2006

. See 8 U.S.C. § 1229b ( a )( 2 ) , (d)(1). Perfecto’ s contention that she began accruing continuous
residence prior to her admission in 2001 lacks merit

. See Vasquez de Alcantar v.
Holder , 645 F.3d 1097 , 110 3 (9th Cir. 2011) ( filing an application for adjustment of status does not confer admission for purposes of cancellation of removal )

. Substantial evidence supports the agency’s denial of CAT protection, where
Perfecto did not demonstrate it is more likely than not she would be tortured by or with the consent or acquiescence of the Mexican government if returned. See Silaya v. Mukasey , 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.