26 I. & N. Dec. 53
BIA2012Background
- Valenzuela-Felix is a Mexican-born LPR returning to the U.S. after a trip abroad; he was paroled for prosecution following a 2009 arrest.
- He was convicted in 2010 of bulk cash smuggling in federal court and later faced removal proceedings charging inadmissibility under 212(a)(2)(A)(i)(I) and (ii).
- Immigration Judge terminated removal proceedings, and DHS timely appealed seeking reinstatement and remand for a merits determination.
- Issue is whether DHS may prove an arriving-alien inadmissibility by clear and convincing evidence using postarrival conviction obtained during parole for prosecution.
- Statutory framework: IIRIRA amended 101(a)(13) to treat returning LPRs as non-arriving absent one of six criteria; 212(d)(5) permits parole for prosecution.
- Board adopts de novo review and holds that timing allows reliance on prosecution results for removal proceedings
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postarrival conviction can support arriving-alien status | Rivens: must prove clear and convincing before parole | DHS may rely on later conviction to prove 212(a)(2) offense | Yes: postarrival conviction admissible to show criteria under 101(a)(13)(C) |
| When is the determination of seeking admission made for returning LPRs | Collado: timing at border; evolving categories create limbo | Parole timing permits later adjudication | Determination occurs in removal proceedings; parole for prosecution allowed |
Key Cases Cited
- Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (DHS bears clear and convincing burden to show seeking admission under 101(a)(13)(C))
- Matter of Collado, 21 I&N Dec. 1061 (BIA 1998) (treating returning LPRs as seeking admission must be principled, not undefined)
- Matter of K-, 9 I&N Dec. 143 (BIA 1959) (parole authority to prosecute returning LPRs; longstanding precedent)
- Doe v. Att’y Gen. of U.S., 659 F.3d 266 (3d Cir. 2011) (Doe adopts threshold view on paroling returning LPRs; differs on approach, not result)
- Vartelas v. Holder, 132 S. Ct. 1479 (2012) (antiretroactivity; informs timing of evaluating admissibility post-IIRIRA)