ROGELIO VAZQUEZ ROMERO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 15-72947
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 28, 2021
Agency No. A091-783-214. Argued and Submitted May 22, 2020 San Francisco, California. Before: Marsha S. Berzon and Sandra S.
OPINION
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
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
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
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
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
The panel next concluded that the BIA reasonably interpreted
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
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;
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.”
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
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
For instance, “although a single crime involving moral turpitude may render an alien inadmissible, it would not render her deportable.” Id. (first citing
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.
returning LPR “has committed an offense identified in section 1182(a)(2).”
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
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
In August 2008, Vazquez Romero was charged a second time for petty theft under
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
Vazquez Romero later pleaded guilty to committing petty theft in violation of
While Vazquez Romero was serving his jail sentence, the government commenced removal proceedings. The government alleged that Vazquez Romero was seeking an admission into the United States when he returned from his trip to Mexico because he had committed a crime involving moral turpitude under
III
We have jurisdiction to review the BIA‘s final order of removal under
A
We begin by considering the government‘s obligation at the border when it paroles a returning LPR into the country. Under
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
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
In reaching this conclusion, Valenzuela-Felix relied on the longstanding principle that the BIA lacks authority “to
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
B
“We apply the Chevron framework where, as here, there is ‘binding
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
Reading
Given that the government must prove by clear and convincing evidence that a returning LPR is seeking an admission into the United States under
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
The BIA‘s interpretation of
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
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
We therefore conclude that Valenzuela-Felix offered a permissible interpretation of
LPR was seeking an admission into the United States under
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
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
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
guilty to a disqualifying offense, the alien cannot reasonably argue he relied on immigration law when he committed the offense, and
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
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
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
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
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
PETITION DENIED.
Notes
(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,
(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.
The Attorney General may, except as provided in subparagraph (B) or in section 1184(f) of this title, 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, 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.