Maria Luz MUNOZ, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
No. 13-60037.
United States Court of Appeals, Fifth Circuit.
June 19, 2014.
755 F.3d 366
IV. CONCLUSION
We recognize that the evidence indicates the practices of the Eritrean government in enforcing its program of National Service are coercive and disturbing. We also note that some of the evidence submitted in support of Milat‘s motion for remand indicates that refusal to participate in National Service may be imputed as political opposition to the Government. On this record, however, we cannot say the IJ‘s finding was unsupported by substantial evidence, nor can we say the BIA‘s denial of Milat‘s motion for remand was irrational or arbitrary. Therefore, Milat‘s PETITION IS DENIED.
Unlike Milat the petitioner in Gebrengus was denied asylum, withholding of removal, and protection under the Convention Against Torture, and the BIA remanded for consideration to decide whether the petitioner might be entitled to relief under the CAT, among other issues. In contrast, here, Milat received protection under the CAT. Further, the petitioner in Gebrengus refused to participate in National Service at all, whereas Milat merely sought reassignment from one branch of National Service to another before he fled the country. Thus, Milat and the petitioner in Gebrengus were not identically situated, and Gebrengus does not render the denial of Milat‘s motion for remand irrational or arbitrary so as to constitute an abuse of discretion. See Zhao, 404 F.3d at 304.
Tim Ramnitz (argued), Trial Attorney, Tangerlia Cox, Laura Halliday Hickein, Julia Jennings Tyler, Esq., Claire L. Workman, Senior Litigation Counsel, U.S. Department of Justice, Washington, DC, for Respondent.
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Petitioner Maria de la Luz Munoz, a lawful permanent resident, petitions for review of the Board of Immigration Appeals’ (BIA) order finding her inadmissible for having committed a crime involving moral turpitude and thus ineligible for cancellation of removal. Because the Department of Homeland Security (DHS) may rely on subsequent convictions to meet the clear and convincing evidence standard in proving that a returning alien is applying for admission, we DENY relief.
I.
Munoz is a native of Mexico and has
Before Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act “a resident alien who once committed a crime of moral turpitude could travel abroad for short durations without jeopardizing his status as a lawful permanent resident.” Vartelas v. Holder, — U.S. —, 132 S.Ct. 1479, 1486, 182 L.Ed.2d 473 (2012). However, under the Illegal Immigration Reform and Immigrant Responsibility Act, “on return from foreign travel, such an alien is treated as a new arrival to our shores, and may be removed from the United States.” Id. (citing
In February 2011, Munoz pleaded guilty to the charge of aggravated assault with a deadly weapon and no contest to the assault charge. In September 2011, the DHS issued a notice to appear charging Munoz with inadmissibility under
To rebut Munoz‘s denial, the government submitted a copy of Munoz‘s Form I-94, showing that she was paroled into the United States for criminal prosecution in January 2011.3 Munoz‘s counsel did not object to the admission of the Form I-94, or make any argument that the Form I-94
Munoz appealed to the BIA, arguing that she was not paroled into the United States and that, because she was a returning lawful permanent resident, her outstanding warrants were not sufficient evidence to regard her as an applicant for admission at her time of reentry in January 2011. Munoz argued that there was insufficient evidence in the record to support the finding that she was paroled into the United States in January 2011 because the Form I-94 was not in the record. The BIA affirmed the immigration judge‘s decision and held that the government had met its burden of proving by clear and convincing evidence that Munoz was properly regarded as seeking admission into the United States based on the government‘s evidence that Munoz pleaded guilty in February 2011 to having committed assault with a deadly weapon. The BIA further concluded that the immigration judge‘s finding that Munoz had been paroled into the United States was not clearly erroneous. This petition followed.4
II.
We have jurisdiction to review constitutional and legal challenges to an order of removal against a criminal alien.
III.
We begin with the parole statute,
The issue before us is whether Munoz‘s subsequent conviction of this crime involving moral turpitude can be used to determine whether she was an applicant for admission when she reentered the United States. Munoz argues that the determination that she was an applicant for admission had to be made based on clear and convincing evidence at the time of her reentry, and contends that because she had not yet been convicted, the government could not meet its evidentiary burden. In contrast, the BIA‘s order reasons that Munoz‘s subsequent guilty plea can be used as evidence that she commit-5ted a crime involving moral turpitude, and that she was therefore applying for admission to the United States when she sought reentry. We agree.
Read together, the applicable statutory provisions show that the BIA‘s order is correct in its assessment that the determination that a lawful permanent resident is “applying for admission” need not be made at the time of reentry. Section 1101(a)(13)(C)(v) provides that a lawful permanent resident is “applying for admission” if the lawful permanent resident “has committed an offense identified in section 1182(a)(2) of this title.” Section 1182(a)(2)(A)(i)(I) includes a lawful permanent resident “convicted of, or who admits having committed, or who admits committing acts” of a crime involving moral turpitude. Nothing in the plain language of these provisions limits the timing of the determination. Here, Munoz had already committed the act when she applied for reentry, and the government may use her subsequent conviction of that same act as clear and convincing evidence that she had been convicted of a crime involving moral turpitude, and was thus an applicant for admission. See Vartelas, 132 S.Ct. at 1492 (noting that ordinarily the border patrol must determine “whether there is clear and convincing evidence that an alien has committed a qualifying crime” for parole purposes); Matter of Rivens, 25 I. & N. Dec. at 623 (holding that the DHS bears the burden of proving by clear and convincing evidence that a returning lawful permanent resident falls within one or more of the six enumerated provisions in
A review of the case law in our sister circuits indicates that only the Third Cir-
Our reading comports with the Supreme Court‘s recent discussion of
Holding that subsequent convictions can be used to determine whether a lawful permanent resident was an applicant for admission not only comports with the language of the statutory provisions; it also makes good practical sense. After all, the border patrol must make quick judgments on the spot, and 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. As the BIA has explained, at the port of entry the “DHS is rightly devoting its resources to carrying out its law enforcement responsibilities involving control and flow of aliens into this country, rather than ensuring that it already has enough evidence to sustain its ultimate burden of proof in removal proceedings that subsequently may be instituted and litigated.” Matter of Valenzuela-Felix, 26 I. & N. Dec. 53, 64 (BIA 2012).8
The Attorney General reversed the BIA‘s decision in Matter of K-, and held that it was proper for immigration authorities to parole the returning lawful permanent resident for prosecution based on evidence that he had already committed a crime involving moral turpitude at the time he sought to be admitted at the border and to then make the ultimate determination regarding the lawful permanent resident‘s admissibility in a post-conviction exclusion proceeding. 26 I. & N. Dec. at 59. As the BIA explained in Matter of Valenzuela-Felix, “[s]ubsequent Board decisions have cited Matter of K- for the proposition that an application for admission is a continuing one and that admissibility is determined on the basis of the law and facts existing at the time the application is finally considered.” 26 I. & N. Dec. at 59-60 (citing Matter of Kazemi, 19 I. & N. Dec. 49, 51 (BIA 1984)). As the Valenzuela majority explained,
the Attorney General and [the] Board have consistently treated an application for admission as a continuing one and have held that, ultimately, admissibility is authoritatively determined on the basis of the law and facts existing, not at the time the alien first presents himself at the port of entry, but at the time the application for admission is finally considered during the proceedings before the Immigration Judge.
IV.
The government may rely on subsequent convictions to meet the clear and convincing evidence standard in proving that a lawful permanent resident is applying for admission. The government did so by providing evidence that Munoz had been convicted of a crime involving moral turpitude for an act that she committed prior to her application for admission. We therefore DENY relief.
JENNIFER WALKER ELROD
UNITED STATES CIRCUIT JUDGE