Maria Munoz v. Eric Holder, Jr.
2014 U.S. App. LEXIS 11554
| 5th Cir. | 2014Background
- Maria de la Luz Munoz, a lawful permanent resident since 1996, left the U.S. for surgery in Dec. 2010 and sought reentry in Jan. 2011. Border agents arrested her on outstanding assault/aggravated-assault warrants and issued a Form I-94 showing she was paroled into the U.S. for criminal prosecution.
- Munoz pleaded guilty to aggravated assault with a deadly weapon in Feb. 2011 (after reentry) and no-contest to assault; DHS charged her as inadmissible under 8 U.S.C. § 1182(a)(2) as an alien convicted of a crime involving moral turpitude.
- At removal proceedings Munoz conceded the conviction but denied she was applying for admission when she reentered; the IJ found her removable and made an adverse credibility determination.
- The BIA affirmed, holding the government had clear and convincing evidence that Munoz was an applicant for admission based on her subsequent guilty plea and that the IJ’s parole finding was not clearly erroneous.
- Munoz petitioned for review in the Fifth Circuit, arguing the determination that she was an applicant had to be made at the time of reentry and the government could not rely on a later conviction to meet the clear-and-convincing standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a subsequent conviction can be used to show a returning LPR was "applying for admission" when reentering | Munoz: admissibility must be determined at time of reentry; no conviction yet so DHS cannot meet clear-and-convincing burden | DHS: conviction after reentry can prove the LPR committed a disqualifying crime that existed at reentry and thus that she was applying for admission | Court: government may rely on subsequent convictions to meet clear-and-convincing evidence that the LPR was applying for admission |
| Whether IJ/BIA erred in finding Munoz paroled into U.S. for prosecution | Munoz: Form I-94 not properly in record; factual finding insufficient | DHS: Form I-94 and record evidence show parole for prosecution; parole finding stands | Court: lacks jurisdiction to review factual findings; Munoz concedes ample proof existed before IJ/BIA, so parole finding upheld |
| Interpretation of §1101(a)(13)(C)(v) and relation to §1182(a)(2) timing | Munoz: phrase requires assessment at moment of entry (has committed vs convicted) | DHS/BIA: §1101(a)(13)(C)(v) incorporates §1182(a)(2) which contemplates convictions or admissions, so timing is not limited to the moment of entry | Court: statutory text and Supreme Court precedent treat the inquiry as continuing; timing not limited to reentry |
| Practicality and deference to agency practice on continuing admission concept | Munoz: contends initial border decision should control | DHS/BIA: border officers cannot be required to establish conclusive proof; admissibility may be resolved later in removal proceedings | Court: agrees with BIA/AG practice that admission is continuing and later conviction may establish inadmissibility |
Key Cases Cited
- Vartelas v. Holder, 132 S. Ct. 1479 (Sup. Ct.) (discusses returning LPRs and that DHS must show clear and convincing evidence when treating a returning LPR as seeking admission)
- Ontunez–Tursios v. Ashcroft, 303 F.3d 341 (5th Cir.) (scope of reviewing BIA decisions and when to consider IJ rulings)
- Orellana–Monson v. Holder, 685 F.3d 511 (5th Cir.) (standard of review for BIA statutory interpretation)
- Doe v. Attorney General of the United States, 659 F.3d 266 (3d Cir.) (addressed timing issue for determining applicant-for-admission status; reached similar practical result)
- Gonzaga–Ortega v. Holder, 736 F.3d 795 (9th Cir.) (interpreted a related subsection and discussed timing of admission decision)
- Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (5th Cir.) (declined to defer to agency interpretation of an unambiguous statute)