Rogelio Vazquez Romero v. Merrick Garland

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO VAZQUEZ ROMERO, No. 15-72947
Petitioner,
Agency No.
v. A091-783-214
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 22, 2020
San Francisco, California
Filed May 28, 2021
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit
Judges, and Ivan L.R. Lemelle,* District Judge.
Opinion by Judge Ikuta
*
The Honorable Ivan L.R. Lemelle, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
2 VAZQUEZ ROMERO V. GARLAND
SUMMARY**
Immigration
Denying Rogelio Vazquez Romero’s petition for review
of a decision of the Board of Immigration Appeals, the panel
held that the government may parole a returning lawful
permanent resident (LPR) into the United States for
prosecution without proving at the border that the LPR was
seeking an admission under 8 U.S.C. § 1101(a)(13)(C), when
such a determination depends on facts that are not practically
ascertainable at the border; but at subsequent removal
proceedings, the government must prove by clear and
convincing evidence that the returning LPR falls within one
of the exceptions under § 1101(a)(13)(C).
An alien attempting to reenter the United States is
generally deemed to be seeking an admission and is thus
subject to charges of inadmissibility. However, under
§ 1101(a)(13)(C), a returning LPR shall not be regarded as
seeking an admission unless one of six exceptions applies.
One such exception applies if the LPR has committed a crime
involving moral turpitude.
Vazquez Romero, an LPR, traveled to Mexico in 2018.
Upon his return, Customs and Border Protection (CBP)
discovered that he had an outstanding warrant that was
possibly for a crime involving moral turpitude and therefore
paroled him into the country under 8 U.S.C. § 1182(d)(5) for
prosecution. Section 1182(d)(5) gives the Attorney General
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VAZQUEZ ROMERO V. GARLAND 3
the discretion to parole into the United States any alien
applying for admission, and a grant of parole does not affect
the alien’s immigration status.
After Vazquez Romero pleaded guilty to petty theft, the
government commenced removal proceedings, charging him
with inadmissibility based on a crime involving moral
turpitude. Vazquez Romero moved to terminate proceedings,
arguing that he should not have been charged as an
inadmissible alien. The BIA rejected this contention, relying
on its published decision in Matter of Valenzuela-Felix,
26 I. & N. Dec. 53 (BIA 2012), which held that, when the
government paroles a returning LPR into the country for
prosecution, it need not have all the evidence to sustain its
burden of proving that the alien is an applicant for admission,
but may ordinarily rely on the results of a subsequent
prosecution to meet that burden in later removal proceedings.
The panel explained that the question at issue was
whether the government must carry its burden of proving that
a returning LPR meets an exception under § 1101(a)(13)(C)
(and therefore may be regarded as seeking an admission),
before it can parole the returning LPR into the United States
under § 1182(d)(5) (albeit with LPR status intact). Applying
the Chevron framework, the panel first concluded that
Congress has not spoken to this issue.
The panel next concluded that the BIA reasonably
interpreted § 1182(d)(5) and § 1101(a)(13)(C) as allowing the
government to exercise its discretion to parole a returning
LPR into the United States for prosecution before satisfying
its burden of proof. Given that the government must prove by
clear and convincing evidence that a returning LPR is seeking
an admission, the panel explained it would be impractical and
4 VAZQUEZ ROMERO V. GARLAND
inefficient to require it to meet this burden at the border.
Moreover, the panel explained that the text of
§ 1101(a)(13)(C) does not preclude a delayed determination
of whether a returning LPR meets the exception, and that
second-guessing whether immigration authorities properly
paroled a returning LPR would interfere with the
government’s exercise of its parole discretion. The panel
further explained that the BIA’s conclusion that it lacked
authority to review the government’s discretionary decision
to parole a returning LPR into the United States is consistent
with congressional intent to shield discretionary decisions
from judicial review. Finally, the panel observed that the
Fifth Circuit had already adopted the BIA’s interpretation.
The panel also deferred to the BIA and joined the Fifth
Circuit in holding that, to meet its burden of proving that a
returning LPR is seeking an admission, the government may
rely on a conviction obtained after the LPR is paroled into the
United States but before the LPR is placed in removal
proceedings. The panel agreed with the Fifth Circuit that the
rule makes good practical sense.
Applying this framework here, the panel concluded that
the government properly relied on Vazquez Romero’s
conviction to carry its burden of proving by clear and
convincing evidence that he could be regarded as an alien
seeking an admission into the United States, pursuant to
§ 1101(a)(13)(C)(v), and that he was therefore properly
subjected to a charge of inadmissibility.
VAZQUEZ ROMERO V. GARLAND 5
COUNSEL
Bria A. Coleman (argued) and Emma D. McBride (argued),
Certified Law Students; Kari E. Hong (argued), Associate
Professor; Boston College Law School, Ninth Circuit
Appellate Project, Newton, Massachusetts; Juliana Garcia and
Raul Gomez, Gomez & Associates, Los Angeles, California;
for Petitioner.
Robert D. Tennyson (argued), Trial Attorney; Jesse M. Bless
and Jeffrey R. Leist, Senior Litigation Counsel; Anthony C.
Payne, Assistant Director; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.
OPINION
IKUTA, Circuit Judge:
The Immigration and Naturalization Act (INA) provides
that “[t]he Attorney General may . . . in his discretion parole
into the United States . . . any alien applying for admission to
the United States.” 8 U.S.C. § 1182(d)(5)(A). The INA also
provides that a lawful permanent resident (LPR) is not
considered to be “seeking an admission into the United
States” unless one of six exceptions applies. Id.§ 1101(a)(13)(C). One exception is for an LPR who has
committed a crime involving moral turpitude. Id.
§ 1182(a)(2)(A)(i)(I). Thus, an LPR who reenters the country
after a trip abroad is considered to be seeking an admission
into the United States if he has committed a crime involving
moral turpitude.
6 VAZQUEZ ROMERO V. GARLAND
This case raises the question whether the government
must carry its burden of proving that a returning LPR meets
one of the six exceptions under § 1101(a)(13)(C) before it
paroles that LPR into the United States under § 1182(d)(5).
Deferring to a precedential opinion issued by the Board of
Immigration Appeals (BIA), see Matter of Valenzuela-Felix,
26 I. & N. Dec. 53 (BIA 2012), we hold that the government
may exercise its discretion to parole a returning LPR into the
United States for prosecution without carrying its burden of
proving that the LPR falls within one of the six exceptions.
The government must, however, carry its burden of proof in
subsequent removal proceedings if any ensue.
I
We begin with some background. Aliens who have been
lawfully admitted to the country generally receive more
protection under immigration law than aliens who are seeking
admission to the United States.1 In removal proceedings, for
instance, an alien who is an applicant for admission has the
burden of proving that he “is clearly and beyond doubt
entitled to be admitted and is not inadmissible” under § 1182.
8 U.S.C. § 1229a(c)(2)(A). But if the alien has already been
lawfully admitted to the United States, the burden shifts to the
government, which must establish by clear and convincing
evidence that the alien is deportable. See id.
§ 1229a(c)(3)(A); Gonzaga-Ortega v. Holder, 736 F.3d 795,
802 & n.2 (9th Cir. 2013). Although the removal procedure
is the same, “the list of criminal offenses that subject aliens
to exclusion remains separate from the list of offenses that
render an alien deportable.” Vartelas v. Holder, 566 U.S.
1For purposes of the INA, “[t]he term ‘alien’ means any person not
a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3).
VAZQUEZ ROMERO V. GARLAND 7
257, 263 n.3 (2012). For instance, “although a single crime
involving moral turpitude may render an alien inadmissible,
it would not render her deportable.” Id. (first citing 8 U.S.C.
§ 1182(a)(2), which lists excludable crimes; then citing
8 U.S.C. § 1227(a)(2), which lists deportable crimes).
An alien who has traveled abroad and seeks to reenter the
country upon return is generally deemed to be seeking an
admission into the United States, and therefore is subject to
a charge of being inadmissible. There is an exception,
however, when the returning alien is an LPR. Immigration
law provides 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” one of six exceptions applies.
8 U.S.C. § 1101(a)(13)(C).2 One such exception applies if the
2
8 U.S.C. § 1101(a)(13)(C) provides:
(C) An 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—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a
continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having
departed the United States,
(iv) has departed from the United States while under
legal process seeking removal of the alien from the
United States, including removal proceedings under this
chapter and extradition proceedings,
8 VAZQUEZ ROMERO V. GARLAND
returning LPR “has committed an offense identified in section
1182(a)(2).” Id. § 1101(a)(13)(C)(v). One of the offenses
enumerated in § 1182(a)(2) is a crime involving moral
turpitude. Id. § 1182(a)(2)(A)(i)(I). Thus, an LPR who has
committed a crime involving moral turpitude for purposes of
§ 1182(a)(2)(A)(i)(I), and seeks to reenter the country, is
“regarded as seeking an admission into the United States for
purposes of the immigration laws.” Id. § 1101(a)(13)(C).
Immigration authorities at ports of entry have historically
exercised the authority to parole aliens into the United States
for various limited purposes, including for prosecution. See,
e.g., Kaplan v. Tod, 267 U.S. 228, 229 (1925); Ekiu v. United
States, 142 U.S. 651, 661 (1892). For example, parole is “a
device through which needless confinement is avoided while
administrative proceedings are conducted.” Leng May Ma v.
Barber, 357 U.S. 185, 190 (1958). The government’s
historical parole authority has been codified in § 1182(d)(5),
which gives the Attorney General the discretion to parole into
the United States “any alien applying for admission to the
United States.”3 8 U.S.C. § 1182(d)(5)(A).
(v) has committed an offense identified in section
1182(a)(2) of this title, unless since such offense the
alien has been granted relief under section 1182(h) or
1229b(a) of this title, or
(vi) is attempting to enter at a time or place other than
as designated by immigration officers or has not been
admitted to the United States after inspection and
authorization by an immigration officer.
3
The entire provision provides:
The Attorney General may, except as provided in
subparagraph (B) or in section 1184(f) of this title, in
VAZQUEZ ROMERO V. GARLAND 9
The parole of an alien into the United States does not
affect the alien’s immigration status. See Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206, 213 (1953);
Kaplan, 267 U.S. at 230; Ekiu, 142 U.S. at 661. Aliens
“paroled elsewhere in the country for years pending removal
are treated for due process purposes as if stopped at the
border.” Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct.
1959, 1982 (2020) (citation omitted) (cleaned up). This
means that LPRs paroled into the United States retain their
immigration status until “entry of a final administrative
order” of removal. Matter of Lok, 18 I. & N. Dec. 101, 105
(BIA 1981); see also Valenzuela-Felix, 26 I. & N. Dec. at 61
n.9.
II
Vazquez Romero is a native and citizen of Mexico who
was granted LPR status in 1990. Vazquez Romero has been
convicted of several crimes since receiving LPR status. In
2004, he was convicted, under section 11350(a) of the
California Health & Safety Code, of possessing cocaine. He
his discretion parole into the United States temporarily
under such conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons or
significant public benefit any alien applying for
admission to the United States, but such parole of such
alien shall not be regarded as an admission of the alien
and when the purposes of such parole shall, in the
opinion of the Attorney General, have been served the
alien shall forthwith return or be returned to the custody
from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of
any other applicant for admission to the United States.
8 U.S.C § 1182(d)(5)(A).
10 VAZQUEZ ROMERO V. GARLAND
was sentenced to more than one year of incarceration. In
2005, he was convicted of petty theft under section 484 of the
California Penal Code, and was subject to enhanced penalties
reserved for repeat theft offenders under section 666 of the
California Penal Code. Later that year, he was convicted of
second-degree burglary in violation of section 460(b) of the
California Penal Code.
In August 2008, Vazquez Romero was charged a second
time for petty theft under section 484 of the California Penal
Code. His arraignment was scheduled for August 22, 2008.
When he failed to appear, the sheriff’s department issued a
warrant for his arrest.
While the warrant was outstanding, Vazquez Romero
traveled to Mexico. On December 3, 2008, he flew back to
the United States and landed at Los Angeles International
Airport (LAX), where he presented himself for inspection to
an agent from the U.S. Customs and Border Protection
(CBP). The CBP directed him to secondary inspection,
where it discovered his outstanding warrant. Because the
warrant was possibly for a crime involving moral turpitude
under 8 U.S.C. § 1182(a)(2)(A)(i)(I), the CBP paroled
Vazquez Romero into the country and handed him over to
California authorities for prosecution.
Vazquez Romero later pleaded guilty to committing petty
theft in violation of section 484 of the California Penal Code.
He was sentenced to a three-year term of probation
conditioned upon his serving 365 days in county jail.
While Vazquez Romero was serving his jail sentence, the
government commenced removal proceedings. The
government alleged that Vazquez Romero was seeking an
VAZQUEZ ROMERO V. GARLAND 11
admission into the United States when he returned from his
trip to Mexico because he had committed a crime involving
moral turpitude under § 1182(a)(2)(A)(i)(I). Vazquez
Romero moved to terminate the removal proceedings, arguing
that he should not have been charged as an inadmissible alien.
The IJ denied Vazquez Romero’s motion to terminate. The
BIA dismissed Vazquez Romero’s appeal, holding that under
Valenzuela-Felix, 26 I. & N. Dec. at 53, when the
government paroles a returning LPR into the United States
for prosecution, it “need not have all the evidence to sustain
its burden of proving that the alien is an applicant for
admission, but may ordinarily rely on the results of a
subsequent prosecution to meet that burden in later removal
proceedings.”
On appeal, Vazquez Romero argues that because he was
a returning LPR, the government could not parole him into
the country rather than allowing him to enter the country as
a returning LPR unless it first met its burden of proving that
he was “an alien seeking an admission” under
§ 1101(a)(13)(C). To carry that burden, Vazquez Romero
argues, the government had to prove that he had committed
a crime involving moral turpitude for purposes of
§ 1182(a)(2)(A)(i)(1). Because the only evidence available
at the border was his outstanding warrant, which, according
to Vazquez Romero, was insufficient to prove that he had
committed a crime involving moral turpitude, the government
should have treated him as a returning LPR subject to
grounds of deportability rather than inadmissibility.
III
We have jurisdiction to review the BIA’s final order of
removal under 8 U.S.C. § 1252(a)(1). We review questions
12 VAZQUEZ ROMERO V. GARLAND
of law and constitutional claims de novo. See
Negrete-Ramirez v. Holder, 741 F.3d 1047, 1050 (9th Cir.
2014); Liu v. Holder, 640 F.3d 918, 930 (9th Cir. 2011).
A
We begin by considering the government’s obligation at
the border when it paroles a returning LPR into the country.
Under § 1182(d)(5), the “Attorney General may . . . in his
discretion parole into the United States temporarily under
such conditions as he may prescribe only on a case-by-case
basis for urgent humanitarian reasons or significant public
benefit any alien applying for admission to the United
States.” 8 U.S.C. § 1182(d)(5)(A).
In Valenzuela-Felix, a precedential opinion, the BIA
considered the question whether the government must prove
that an alien who is a returning LPR meets one of the
exceptions in § 1101(a)(13)(C) at the border before paroling
the alien into the United States. 26 I. & N. Dec. at 54.
Valenzuela-Felix involved an LPR who had been federally
indicted on charges of bulk cash smuggling, which the BIA
held to be a crime involving moral turpitude. Id. at 53. A
warrant was issued for the LPR’s arrest. See id. at 54. The
LPR subsequently left the country and, when he attempted to
reenter, was paroled into the United States for prosecution
and then tried for and convicted of the cash smuggling
offense. Id. at 53. In subsequent removal proceedings, the
LPR was charged with grounds of inadmissibility. Id.
at 53–54. The IJ terminated the proceedings because the
government had failed to prove at the time the LPR sought to
reenter the United States that the LPR was an alien seeking
admission. Id. at 54.
VAZQUEZ ROMERO V. GARLAND 13
The BIA reversed. It first reaffirmed its prior ruling, see
Matter of Rivens, 25 I. & N. Dec. 623, 625 (BIA 2011), that
the government must prove by clear and convincing evidence
that a returning LPR meets one of the exceptions in
§ 1101(a)(13)(C)(v).4 Id. Then, noting that Rivens did not
address “the time at which the determination must be made by
clear and convincing evidence,” id. at 54 (emphasis in
original), Valenzuela-Felix held that the government does not
have to carry this burden at the border. Id. at 65. As the BIA
explained, the government does not have to meet “a threshold
standard before it may parole a returning lawful permanent
resident into the United States for prosecution,” id. at 62, or
“possess all of the evidence pertinent to sustaining its burden
at the time the lawful permanent resident first seeks to come
back into the United States,” id. at 64. Rather, the
government must carry its burden of proof in subsequent
removal proceedings. Id. at 64. In other words, admissibility
is “authoritatively determined” not when “the alien first
presents himself at the port of entry” but rather when “the
application for admission is finally considered during the
proceedings before the Immigration Judge.” Id. at 56. Thus,
according to Valenzuela-Felix, the government may “treat[]
a returning [LPR] as an arriving alien” and parole the
returning LPR into the United States for prosecution “until an
ultimate determination is made by an Immigration Judge, in
any removal proceedings the DHS may initiate, whether one
or more of the [§ 1101(a)(13)(C)] criteria, in fact, pertain.”
Id. at 57–58.
In reaching this conclusion, Valenzuela-Felix relied on the
longstanding principle that the BIA lacks authority “to
4
We adopted the clear and convincing evidence standard in
Gonzaga-Ortega, 736 F.3d at 802.
14 VAZQUEZ ROMERO V. GARLAND
oversee and regulate the DHS’s exercise of its law
enforcement duties and prerogatives at the ports of entry.” Id.
at 62. At ports of entry, the parole power belongs to
immigration authorities, not the BIA. See id. at 63. The BIA
could “discern no indication that when Congress enacted
[§ 1101(a)(13)(C)], it intended to alter the well-established
restrictions on [the BIA’s] ability to intrude into parole
determinations.” Id. at 63.
Valenzuela-Felix also explained that the Third Circuit was
mistaken when it took a contrary approach in Doe v. Attorney
General of the United States, 659 F.3d 266 (3rd Cir. 2011).
Id. at 61–62. Doe held, in the course of upholding a removal
order for an LPR paroled into the United States, that the
government cannot parole a returning LPR into the United
States unless there is probable cause to believe that the alien
has committed an offense enumerated in § 1182(a)(2).
659 F.3d at 272. Valenzuela Felix disagreed with this
approach. It explained that requiring the government to prove
it had met a “threshold test for parole” within the context of
a removal proceeding was unprecedented and would “create
tension with principles” relating to the BIA’s authority to
review the government’s exercise of prosecutorial discretion.
Valenzuela-Felix, 26 I. & N. Dec. at 62. The BIA also noted
that Doe was “based in part on an apparent misapprehension”
that treating a returning LPR as an applicant for admission
would strip the alien of LPR status. Id. at 61 n.9. The BIA
explained that contrary to Doe’s erroneous view, “treating a
returning lawful permanent resident as an applicant for
admission, paroling such an alien, or even convicting such an
alien of a crime identified in section [1182(a)(2)] does not
remove the alien’s status as a lawful permanent resident.” Id.
(citing Matter of Lok, 18 I. & N. Dec. at 101). An LPR’s
status remains unchanged until a final determination under
VAZQUEZ ROMERO V. GARLAND 15
§ 1101(a)(13)(C) is made in removal proceedings. See id. In
sum, the BIA held that there is “no need to create a two-stage
process whereby first probable cause, and later clear and
convincing evidence, of [an LPR’s] commission of a
turpitudinous crime must be demonstrated.” Id. at 62 n.10.5
B
“We apply the Chevron framework where, as here, there
is ‘binding agency precedent on point’ in the form of a
published BIA opinion.” Valenzuela Gallardo v. Lynch,
818 F.3d 808, 815 (9th Cir. 2016) (citation omitted). We
begin by determining, using traditional tools of statutory
construction, whether Congress has “directly spoken to the
precise question at issue.” Perez-Guzman v. Lynch, 835 F.3d
1066, 1073 (9th Cir. 2016) (citation omitted). If the statute is
silent or ambiguous with respect to that specific issue, then
“we may consider the responsible agency’s interpretation of
the statutory scheme.” Id. If the agency’s interpretation is
reasonable, “Chevron requires a federal court to accept the
agency’s construction of the statute, even if the agency’s
reading differs from what the court believes is the best
statutory interpretation.” Id. (quoting Brand X, 545 U.S.
at 980). In considering whether an agency interpretation is
reasonable, we may look at the statutory language in context,
as well as to decisions by other circuits. See
5
The Third Circuit adopted the “probable cause” standard before
Matter of Rivens determined that the government must prove by clear and
convincing evidence that a returning LPR is an alien seeking an admission
under § 1101(a)(13)(C). The Third Circuit’s adoption of the probable-
cause standard was therefore superseded by Rivens and Valenzuela-Felix.
See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 980 (2005)).
16 VAZQUEZ ROMERO V. GARLAND
Garfias-Rodriguez v. Holder, 702 F.3d 504, 513–14 (9th Cir.
2012).
Here, the precise question at issue is whether the
government must carry its burden of proving that a returning
LPR meets an exception under § 1101(a)(13)(C) (and
therefore may be regarded as seeking an admission into the
United States), before it can parole the returning LPR into the
United States under § 1182(d)(5) (albeit with LPR status
intact). We first conclude that Congress has not spoken to
this issue. Section 1182(d)(5) states that the parole decision
with regard to aliens seeking admission is at the
government’s discretion, but does not address when the
alien’s admissibility should be decided. See 8 U.S.C.
§ 1182(d)(5)(A). Nor does § 1101(a)(13)(C) address when
the government must prove that an LPR qualifies as an alien
seeking an admission. “Chevron’s premise is that it is for
agencies, not courts, to fill statutory gaps.” Brand X,
545 U.S. at 982. Thus, we turn to whether the BIA
permissibly filled this statutory gap in Valenzuela-Felix.
Reading § 1182(d)(5) and § 1101(a)(13)(C) together, we
conclude that the BIA could reasonably interpret the statutes
as allowing the government to exercise its discretion to parole
a returning LPR into the United States for prosecution before
satisfying its burden of proof. We rely on the language of
both § 1182(d)(5)(A) and § 1101(a)(13)(C). Section
1182(d)(5)(A) gives the government broad parole discretion,
without mentioning any threshold standard that the
government must meet or the timing of when a decision as to
admissibility must be made. See 8 U.S.C. § 1182(d)(5)(A).
Section 1101(a)(13)(C), in turn, provides limitations on the
scope of the Attorney General’s discretion, but also does not
set any time when a decision must be made.
VAZQUEZ ROMERO V. GARLAND 17
Given that the government must prove by clear and
convincing evidence that a returning LPR is seeking an
admission into the United States under § 1101(a)(13)(C), it
would be impractical and inefficient to require it to meet this
burden at the border. Cf. Munoz v. Holder, 755 F.3d 366, 372
(5th Cir. 2014). As the BIA noted, at the border the
government “is rightly devoting its resources to carrying out
its law enforcement responsibilities involving control of the
flow of aliens into this country, rather than to ensuring that it
already has enough evidence to sustain its ultimate burden of
proof.” Valenzuela Felix, 26 I. & N. Dec. at 64. We have
previously acknowledged that immigration officers must
make quick judgments at the border, including whether a
returning LPR should be treated as an applicant for
admission. Gonzaga-Ortega, 736 F.3d at 802.
The answer to the question whether a returning LPR
meets one of the six exceptions in 8 U.S.C. § 1101(a)(13)(C)
may not be self-evident, because the pertinent facts may not
be practically ascertainable. Section 1101(a)(13)(C)(v)
applies when an LPR at the border “has committed an
offense identified in section 1182(a)(2).” 8 U.S.C.
§ 1101(a)(13)(C)(v). Where the LPR has not yet been
convicted and has not admitted to committing such an
offense, the answer to the relevant question will most often be
resolved in a prosecution that has not yet taken place. The
text of § 1101(a)(13)(C)(v) therefore does not preclude a
delayed determination of whether a returning LPR meets the
statutory exception.
Where immigration officers are not able to carry their
burden of proof at the border, exercise of their discretion
under the parole statute may be a sensible solution. Given
Congress’s grant of discretion to the government in
18 VAZQUEZ ROMERO V. GARLAND
§ 1182(d)(5), the government may exercise its parole
authority to permit an admissibility determination to be made
after a criminal prosecution. See Valenzuela-Felix, 26 I. & N.
Dec. at 64. Second-guessing whether the immigration
authorities properly paroled a returning LPR into the country
would entail not only scrutinizing immigration authorities’
evidence at the border but also interfering with the
government’s exercise of its parole discretion. Id. at 62–63.
The BIA’s interpretation of § 1182(d)(5) is consistent
with Congress’s expressed intent in other portions of the INA.
Specifically, in the same subchapter containing § 1182(d)(5),
Congress expressed its intent to shield the Attorney General’s
discretionary decisions from judicial review. See 8 U.S.C.
§ 1252(a)(2)(B). Most pertinent here, 8 U.S.C.
§ 1252(a)(2)(B)(ii) provides that with certain exceptions, “no
court shall have jurisdiction to review” any “decision or
action of the Attorney General . . . the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General.” We have previously concluded that the
jurisdiction-stripping provision of § 1252(a)(2)(B)(ii) applies
to discretionary parole decisions under § 1182(d)(5). See
Hasan v. Chertoff, 593 F.3d 785, 790 (9th Cir. 2010).
Accordingly, the BIA’s conclusion that it lacked authority to
review the government’s discretionary decision to parole a
returning LPR into the United States in this case is consistent
with congressional intent.
Finally, in determining whether an agency’s interpretation
is reasonable, we may consider the views of our sister
circuits. See Garfias-Rodriguez, 702 F.3d at 513.
Valenzuela-Felix’s approach has already been adopted by the
Fifth Circuit. See Munoz, 755 F.3d at 372. In Munoz, an
LPR committed assault and aggravated assault with a deadly
VAZQUEZ ROMERO V. GARLAND 19
weapon, traveled to Mexico for surgery, and then returned to
the United States. Id. at 368. When the LPR tried to reenter
the United States, the CBP determined that the LPR had an
outstanding warrant for the assault charges. Id. The CBP
arrested the LPR at the border and paroled her into the United
States, where she subsequently pleaded guilty to one of the
charges. Id. at 368. The government later issued a notice to
appear charging the LPR as an alien applying for admission
who had been convicted of a crime involving moral turpitude.
Id. The LPR argued, among other things, that the CBP had to
prove by clear and convincing evidence at the border that she
was an applicant for admission when she sought to reenter the
country from Mexico. Id. at 369. The Fifth Circuit rejected
this argument and held that the government could meet its
burden in subsequent removal proceedings. Id. at 370. The
Fifth Circuit reasoned that the “border patrol must make
quick judgments on the spot” and that it would be
“impracticable to require the border patrol agents to gather
and consider all the evidence and reach the same judgment
that the immigration judge makes after more thorough
consideration.” Id. at 371.
We therefore conclude that Valenzuela-Felix offered
a permissible interpretation of § 1182(d)(5) and
§ 1101(a)(13)(C)(v), read together. See Garfias-Rodriguez,
702 F.3d at 514. Deferring to that interpretation, we hold that
the government may parole a returning LPR into the United
States for prosecution under § 1182(d)(5) without proving at
the border that the LPR falls within an exception under
§ 1101(a)(13)(C), when such a determination depends on
facts that are not practically ascertainable at the border. But
at subsequent removal proceedings, the government must
prove by clear and convincing evidence that the returning
20 VAZQUEZ ROMERO V. GARLAND
LPR was seeking an admission into the United States under
§ 1101(a)(13)(C).
Vazquez Romero argues that we should not defer to the
BIA’s interpretation, because it deprives LPRs of due process
at the border. We reject this argument. Due process is
violated when there is a “deprivation of a constitutionally
protected liberty or property interest and denial of adequate
procedural protection.” Krainski v. Nevada ex rel. Bd. of
Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th
Cir. 2010). Congress has not mandated any procedure at the
border for determining the applicability of the exceptions
under § 1101(a)(13)(C), but has given the Attorney General
discretion to exercise broad parole authority under
§ 1182(d)(5). Therefore, because the parole of aliens into the
United States does not affect the aliens’ immigration status,
aliens are not deprived of any right to have their status
determined at the border. Although the Supreme Court has
held that LPRs are “entitled to a fair hearing when threatened
with deportation,” Landon v. Plasencia, 459 U.S. 21, 32
(1982), it has not held they are entitled to a hearing at the
moment they seek to enter the country.6 Moreover, a
returning LPR who is paroled into the United States receives
full procedural protections before a final determination under
§ 1101(a)(13)(C) is made in subsequent removal proceedings.
At an LPR’s removal proceeding, the government must carry
its burden of proving by clear and convincing evidence that
the LPR is an alien seeking admission who is therefore
subject to a charge of inadmissibility. If the government
6
Agency regulations also do not grant an alien the right to have an
admission determination made at the border; to the contrary, they
expressly permit delay of the decision through “deferred inspection.” See
8 C.F.R. § 1235.2.
VAZQUEZ ROMERO V. GARLAND 21
cannot carry its burden, then it will have to prove grounds of
deportability. An LPR does not lose any rights at subsequent
removal proceedings by being paroled into the United States
rather than being treated as a returning LPR at the border.
Vazquez Romero also argues that the BIA’s interpretation
of § 1182(d)(5) is inconsistent with Vartelas. Again, we
disagree. Vartelas involved an LPR who pleaded guilty to a
felony crime involving moral turpitude in 1994 (two years
before § 1101(a)(13)(C) was enacted) and then traveled
abroad for one week in 2003 (seven years after
§ 1101(a)(13)(C) was enacted). 566 U.S. at 260. When the
LPR sought reentry into the United States, immigration
authorities became aware of his conviction for a crime
involving moral turpitude, treated him as an inadmissible
alien, and placed him in removal proceedings. Id. The
Supreme Court addressed a narrow question: “As to a lawful
permanent resident convicted of a crime before the effective
date of IIRIRA, which regime governs, the one in force at the
time of the conviction, or IIRIRA?” Id. at 261. The Court
held that because IIRIRA “attached a new disability (denial
of reentry) in respect to past events ([the alien’s] pre-IIRIRA
offense, plea, and conviction),” the “deeply rooted
presumption against retroactive legislation” led to the
conclusion that § 1101(a)(13)(C) cannot be applied to
criminal convictions that occurred before IIRIRA was
enacted. Id. at 261.
In reaching this conclusion, Vartelas rejected the Second
Circuit’s view that IIRIRA could be applied to the alien
retroactively because he “had not relied on the prior legal
regime at the time he committed the disqualifying crime.” Id.
at 265. The Second Circuit reasoned that while the alien may
have relied on pre-IIRIRA immigration law when he pleaded
22 VAZQUEZ ROMERO V. GARLAND
guilty to a disqualifying offense, the alien cannot reasonably
argue he relied on immigration law when he committed the
offense, and § 1101(a)(13)(C)(v) provides that an alien is not
treated as a returning LPR at the border if the alien has
“committed an offense” identified in § 1182(a)(2). Id. at 272
(citing 8 U.S.C. § 1101(a)(13)(C)(v)) (emphasis added).
The Supreme Court rejected this analysis. It held that it
was not necessary for the alien to prove reliance in order to
invoke “the antiretroactivity principle,” and “[i]n any event,”
the alien “likely relied on then-existing immigration law.” Id.at 273–75. The Court reasoned that there is no “practical
difference, so far as retroactivity is concerned” between
committing an offense and being convicted of the offense. Id.
at 275 (emphasis added). Rather, an LPR who committed an
offense pre-IIRIRA would likely rely on the pre-IIRIRA right
“to make trips of short duration” without “seeking an
official’s permission.” Id. at 274. Moreover, in many cases
the government will determine that the alien “committed an
offense” for purposes of § 1101(a)(13)(C) by “check[ing] the
alien’s records for a conviction” at the border. Id. at 275.
Therefore, for purposes of the Court’s retroactivity analysis,
an alien’s reliance on pre-IIRIRA law for purposes of
traveling abroad is substantially identical whether the alien
committed or was convicted of an offense. Vartelas noted, in
dicta, that “[t]he 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).” Id. at 275 n.11.7
7
The Court’s circumspect wording effectively acknowledges that
the statutory language is ambiguous and susceptible to different
interpretations. An alternative fair reading is that the reference to
VAZQUEZ ROMERO V. GARLAND 23
Contrary to Vazquez-Romero’s argument, this dicta does not
conflict with Valenzuela-Felix’s determination regarding the
timing of the government’s obligation to prove that a
returning LPR meets the exception set forth in
§ 1101(a)(13)(C)(v).
C
We next consider the BIA’s determination that, at
subsequent removal proceedings, the government may rely on
a conviction obtained after a returning LPR is paroled into the
United States but before the LPR is placed in removal
proceedings. Valenzuela Felix, 26 I. & N. Dec. at 59–60.
Faced with the same question in Munoz, the Fifth Circuit
held that the government properly relied on a subsequent
conviction because, like Vazquez Romero, the LPR there
“had already committed the act when she applied for reentry.”
755 F.3d at 370. Like Valenzuela-Felix, Munoz found that
this rule “makes good practical sense.” Id. at 371. We agree.
We therefore defer to the BIA and join the Fifth Circuit in
holding that, to meet its burden of proving that a returning
LPR is seeking an admission into the United States under
§ 1101(a)(13)(C), the government may rely on a conviction
obtained after the LPR is paroled into the United States but
before the LPR is placed in removal proceedings. See Munoz,
755 F.3d at 372; cf. Ali v. Reno, 22 F.3d 442, 448 n.3 (2d Cir.
1994); Palmer v. INS, 4 F.3d 482, 485 n.11 (7th Cir. 1993).
§ 1182(a)(2) incorporates the statute’s classification of offenses, but not
its requirement that the alien has been convicted.
24 VAZQUEZ ROMERO V. GARLAND
IV
We now apply this framework to the facts of this case.
When Vazquez Romero arrived at LAX, the CBP exercised
its discretion to parole him into the United States for
prosecution. As we have explained, we do not second-guess
the CBP’s decision to do so. Vazquez Romero then pleaded
guilty to a crime involving moral turpitude. At subsequent
removal proceedings, the government properly relied on
Vazquez Romero’s conviction to carry its burden of proving
by clear and convincing evidence that Vazquez Romero could
be regarded as an alien seeking an admission into the United
States, pursuant to § 1101(a)(13)(C)(v).8 Vazquez Romero
was therefore properly subjected to a charge of
inadmissibility.
PETITION DENIED.
8
Vazquez Romero also argues that (1) petty theft under California
Penal Code § 484 is not a crime involving moral turpitude and (2) the IJ
denied him due process by denying his counsel’s motion to withdraw.
Those arguments were not raised before the BIA, and thus we lack
jurisdiction to review them. Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004).