999 F.3d 656
9th Cir.2021Background:
- Petitioner Vazquez Romero is a lawful permanent resident (LPR) with prior convictions; he had an outstanding warrant for petty theft when he returned from Mexico to LAX.
- CBP placed him in secondary inspection, then exercised its discretion under 8 U.S.C. § 1182(d)(5) to parole him into the U.S. for prosecution and turned him over to state authorities.
- He pleaded guilty to petty theft (served probation and jail time); DHS later initiated removal proceedings alleging inadmissibility because he had “committed an offense” under 8 U.S.C. § 1101(a)(13)(C)(v) (a crime involving moral turpitude).
- The IJ denied his motion to terminate; the BIA affirmed based on Matter of Valenzuela-Felix, holding the government need not have all evidence at the border and may prove admissibility later.
- On appeal the Ninth Circuit reviewed de novo and applied Chevron deference to the BIA; it affirmed that the government may parole a returning LPR into the U.S. for prosecution without proving at the border that an exception in § 1101(a)(13)(C) applies, but must meet its clear-and-convincing evidentiary burden at subsequent removal proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether gov't must prove at the border that a returning LPR meets an exception in § 1101(a)(13)(C) before paroling under § 1182(d)(5) | Vazquez Romero: Yes; gov't must satisfy its burden (clear and convincing) at the port of entry | Gov't: No; may exercise parole discretion first and prove admissibility later in removal proceedings | Court: No; gov't may parole first when facts aren’t practically ascertainable at border, but must prove later by clear and convincing evidence |
| Whether a conviction obtained after parole but before removal proceedings can be used to prove the § 1101(a)(13)(C) exception | Vazquez Romero: No; conviction after entry cannot retroactively supply admissibility at time of reentry | Gov't: Yes; underlying offense occurred before reentry and conviction may be relied on in removal | Court: Yes; conviction obtained after parole and before removal may be used to meet gov't’s burden |
| Whether paroling an LPR without an admissibility determination at the border violates due process | Vazquez Romero: Parole without a border hearing denies procedural rights | Gov't: No due process violation; parole does not change status and full procedural protections exist in removal proceedings | Court: No due process violation; LPR retains rights and receives procedural protections in subsequent removal proceedings |
| Whether the BIA approach conflicts with Vartelas or Doe precedent | Vazquez Romero: Valenzuela-Felix conflicts with Vartelas and Doe | Gov't: Vartelas is narrow; Doe misread statutory effects; BIA approach reasonable | Court: No conflict with Vartelas; Doe was rejected; BIA interpretation is permissible and deferred to |
Key Cases Cited
- Doe v. Attorney General of the United States, 659 F.3d 266 (3d Cir. 2011) (held probable cause required at border; BIA/Ninth disagreed)
- Munoz v. Holder, 755 F.3d 366 (5th Cir. 2014) (approved deferring admissibility determination until removal proceedings)
- Vartelas v. Holder, 566 U.S. 257 (2012) (addressed retroactivity and interpretation of "committed an offense")
- Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agencies may fill statutory gaps; courts defer to reasonable agency constructions)
- Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020) (parole does not alter immigration status; border procedures context)
- Gonzaga-Ortega v. Holder, 736 F.3d 795 (9th Cir. 2013) (discusses burden-shifting for lawfully admitted aliens)
- Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) (parole into the country does not constitute admission)