The opinion
Cite as 26 I&N Dec. 53 (BIA 2012) Interim Decision #3773
Matter of Jaime Enrique VALENZUELA-FELIX, Respondent
Decided November 16, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
When the Department of Homeland Security paroles a returning lawful permanent resident
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.
FOR RESPONDENT: Geoffrey A. Hoffman, Esquire, Houston, Texas
FOR THE DEPARTMENT OF HOMELAND SECURITY: James Lazarus, Associate Legal
Advisor
BEFORE: Board Panel: PAULEY and WENDTLAND, Board Members. Concurring and
Dissenting Opinion: COLE, Board Member.
PAULEY, Board Member:
In a decision dated July 13, 2011, an Immigration Judge terminated the
removal proceedings against the respondent. The Department of Homeland
Security (“DHS”) has timely appealed from that decision. The respondent
opposes the DHS appeal. The appeal will be sustained, the removal
proceedings will be reinstated, and the record will be remanded to the
Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico and a lawful permanent
resident of the United States. In June 2009 he was indicted by a grand jury on
charges including bulk cash smuggling in violation of 31 U.S.C. § 5332
(2006). In August 2009, upon returning from a trip abroad, the respondent was
paroled into the United States for prosecution. On July 8, 2010, he was
convicted of that offense in the United States District Court for the Central
District of California and was sentenced to 27 months’ imprisonment.
On May 23, 2011, the DHS served the respondent with a notice to
appear, charging that he is inadmissible under section 212(a)(2)(A)(i)(I) of the
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Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an
alien who has been convicted of a crime involving moral turpitude. On
July 11, 2011, the DHS lodged an additional charge that the respondent is
inadmissible under section 212(a)(2)(A)(i)(II) of the Act as an alien convicted
of a controlled substance violation, based on his July 8, 1991, conviction for
possession for sale of cocaine in California.
The Immigration Judge found that “the proper time for the government to
make its determination as to whether the Respondent was an arriving alien
was at the time he sought entry into the United States.” In this regard the
Immigration Judge noted that the respondent had not then been convicted and
that the DHS had, at most, probable cause from an outstanding arrest warrant
that he had committed a crime involving moral turpitude based on cash
smuggling. Since the DHS was likewise unaware of the respondent’s 1991
drug conviction at that time, the Immigration Judge concluded that it did not
establish by clear and convincing evidence that the lawful permanent resident
respondent was seeking admission. He therefore ordered that the proceedings
be terminated.
II. ISSUE
As the Immigration Judge properly determined, we held in Matter
of Rivens, 25 I&N Dec. 623 (BIA 2011), that the DHS bears the burden of
proof by clear and convincing evidence that a returning lawful permanent
resident falls within one or more of the six enumerated provisions in section
101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2006), and is therefore
to be regarded as seeking admission into the United States. One of those
provisions is that the alien “has committed an offense identified in section
212(a)(2).” Section 101(a)(13)(C)(v) of the Act. However, we did not then
have occasion to address the issue which is dispositive in this case, namely,
the time at which the determination must be made by clear and convincing
evidence that the alien has committed a section 212(a)(2) offense. We will
address that issue now.1
III. ANALYSIS
On appeal, the DHS argues that the Immigration Judge erred both in
finding that it failed to meet the burden required in Matter of Rivens to show
that the respondent was an arriving alien under section 101(a)(13)(C)(v) of the
1
Pursuant to the Supreme Court’s intervening decision in Vartelas v. Holder, 132 S. Ct.
1479 (2012), we will not address the respondent’s 1991 drug conviction. See infra note 6.
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Act and in his application of Matter of Collado, 21 I&N Dec. 1061 (BIA
1998). The DHS essentially contends that because the respondent was
paroled for purposes of prosecution, it could rely on the subsequent fact of his
conviction since he was not admitted prior thereto. Upon our de novo review,
we agree with the DHS. 8 C.F.R. § 1003.1(d)(3)(ii) (2012). We conclude that
under these circumstances, the DHS could rely on the respondent’s subsequent
conviction to sustain its burden of proving that he was properly charged as an
arriving alien who is inadmissible under section 212(a)(2)(A)(i)(I) of the Act.
In the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”),
Congress amended section 101(a)(13) of the Act to replace the previous
definition of the term “entry” with a new definition of an “admission.” Section
101(a)(13)(A) of the Act provides that “the terms ‘admission’ and ‘admitted’
mean, with respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an immigration officer.”
However, section 101(a)(13)(C) 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
the alien” falls into one of six categories. One of these is where the alien “has
committed an offense identified in section 212(a)(2), unless since such offense
the alien has been granted relief under section 212(h) or 240A(a).” Section
101(a)(13)(C)(v) of the Act. Section 212(a)(2)(A)(i)(I) includes “a crime
involving moral turpitude.”
Under section 212(d)(5) of the Act, an alien applying for admission to the
United States may be paroled temporarily into the country on a case-by-case
basis. The statute specifically states that the “parole . . . 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 is to 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.” Section 212(d)(5)(A) of the Act.
To resolve the matter before us, we must address the interplay of these two
seemingly contradictory statutes—section 101(a)(13)(C) of the Act, which
states that returning lawful permanent residents are presumptively not to be
treated as arriving aliens, and section 212(d)(5), which allows the DHS to
temporarily parole aliens seeking admission in order to determine admissibility
at a later date, with no explicit exemption for returning lawful permanent
residents. As we will explain further, the interplay, in fact, presents no actual
conflict, since determinations under each of these statutes are made at different
times in the immigration process, and the authority to parole for purposes
of prosecution is not limited to applicants for admission. Ultimately, the
resolution of this case turns on an issue of timing.
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We disagree with the Immigration Judge’s assessment that “the most
logical construction of section 101(a)(13)(C) is that Congress intended for
the Government to make its determination of whether a returning lawful
permanent resident is seeking admission at the time the lawful permanent
resident presents himself at the port of entry for re-entry into the
United States.” As discussed below, the Attorney General and this 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—including in the
specific context of parole for purposes of prosecution. At least in that
context, the only one now before us, we can discern no indication that in
enacting section 101(a)(13)(C) of the Act, Congress intended to depart from
longstanding precedent that had established the timing of the inadmissibility
inquiry by focusing on the circumstances existing at the time of the ultimate
hearing before the Immigration Judge.2
We begin by discussing the history and nature of parole for purposes
of prosecution. Pertinent administrative precedent recognizes that the
legislative history of the parole provision at section 212(d)(5) shows that one
of Congress’ primary purposes was to allow parole for the purpose of
prosecution. See Matter of K-, 9 I&N Dec. 143, 157 (BIA 1959; A.G. 1961),
complaint dismissed sub nom. Klapholz v. Esperdy, 201 F. Supp. 294
(S.D.N.Y. 1961), aff’d per curiam, 302 F.2d 928 (2d Cir. 1962) (involving
a lawful permanent resident). Such precedent has also rejected the
contention that only an applicant for admission can be paroled.3 See Matter of
Badalamenti, 19 I&N Dec. 623, 626 (BIA 1988) (stating that an alien who is
extradited to the United States and paroled for the purpose of prosecution does
2
We do not mean to hold that when immigration officers are presented with clear and
convincing evidence at the border that a returning lawful permanent resident falls into one
or more of the six provisions in section 101(a)(13)(C), they may not regard the alien as an
applicant for admission until a final determination is made in the context of removal
proceedings. See Gonzaga-Ortega v. Holder, 694 F.3d 1069 (9th Cir. 2012) (holding that
a returning lawful permanent resident caught attempting to smuggle his niece across the
border could be denied admission). However, we disagree with the Immigration Judge that
the determination whether one of the provisions in section 101(a)(13)(C) applies must
always occur at the border, so that when such clear and convincing evidence does not
then exist, a returning lawful permanent resident must be admitted, rather than paroled for
purposes of prosecution.
3
In essence, the case law indicates that although section 212(d)(5) states that an applicant
for admission may be paroled, it was not intended to restrict parole authority to such
applicants, as the concurring and dissenting opinion implicitly contends.
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not automatically become an applicant for admission upon termination of
parole); see also Matter of Accardi, 14 I&N Dec. 367 (BIA 1973).
When the respondent attempted to return to the United States in 2009, he
was paroled into the country for purposes of criminal prosecution. Under the
explicit terms of section 212(d)(5), that grant of parole did not in and of itself
admit the respondent to the United States. As a general matter, the DHS has
the authority to delay the initiation of proceedings until after the resolution of
an arriving alien’s criminal charges.4 See Matter of Bahta, 22 I&N Dec. 1381,
1391-92 (BIA 2000) (stating that the determination whether and when to place
an alien in removal proceedings is a matter of prosecutorial discretion entirely
within the authority of the DHS). Following any resolution of the criminal
proceedings by the entry of a criminal conviction, the purposes of the parole
have been served, and the DHS generally has prosecutorial discretion to charge
the alien with inadmissibility on the basis of the postarrival conviction (for
prearrival conduct) if the conviction is, in fact, covered by an inadmissibility
ground under section 212(a)(2) of the Act.5 The question thus becomes
whether this analysis pertains in a case arising after the IIRIRA where the alien
paroled for prosecution is a returning lawful permanent resident. We conclude
that it does.
We recognize that the statute as amended by the IIRIRA exempts a
returning lawful permanent resident from being regarded as an applicant for
admission in the context of removal proceedings—and instead treats him as
having been previously admitted—unless the DHS demonstrates by clear and
convincing evidence that he comes within one or more of the new criteria
specified in section 101(a)(13)(C). See Matter of Rivens, 25 I&N Dec. 623.
But that provision does not purport to change the timing of the resolution of
issues relating to a lawful permanent resident’s susceptibility to inadmissibility
charges by requiring the DHS to be able to meet its burden as early as the
time of the alien’s inspection and examination, prior to the initiation of
removal proceedings. Likewise, the statute does not purport to restrict
the DHS’s law enforcement authority to parole a returning lawful
permanent resident until pending criminal charges potentially giving rise to
inadmissibility can be resolved. Nor does it prevent the DHS from treating a
returning resident as an arriving alien until an ultimate determination is made
4
An “arriving alien” is defined as “an applicant for admission coming or attempting to come
into the United States at a port-of-entry.” 8 C.F.R. § 1001.1(q) (2012). The regulations also
provide that “[a]n arriving alien remains an arriving alien even if paroled pursuant to section
212(d)(5) of the Act, and even after any such parole is terminated or revoked.” Id.
5
Pursuant to section 212(d)(5) of the Act, the purposes of parole for prosecution are not
served until the criminal charges are resolved. Matter of Badalamenti, 19 I&N Dec. 623.
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by an Immigration Judge, in any removal proceedings the DHS may initiate,
whether one or more of the section 101(a)(13)(C) criteria, in fact, pertain.
In Matter of Collado, 21 I&N Dec. at 1064, we stated that “it would be
inconsistent with the definitional nature of [section 101(a)(13)(C)] to read
it . . . to create either a third category or an undefined second category of
lawful permanent residents who may or may not be regarded as seeking an
admission, depending on a wholly unspecified set of criteria that, presumably,
would be developed by case-by-case adjudication.” Relying on that language,
the Immigration Judge in this case concluded—and our concurring and
dissenting colleague apparently agrees—that by using parole to delay the
analysis, the DHS would be creating a third category of lawful permanent
residents and that such an approach would defeat the purpose of the statute and
“keep some returning lawful permanent residents in a state of limbo as to
whether they are seeking admission (and are thus arriving aliens) for an
indeterminate amount of time.” We disagree.
The underlying issue in Matter of Collado turned on whether the alien was
seeking admission under section 101(a)(13)(C) or, alternatively, was immune
from an inadmissibility charge under the doctrine set forth by the Supreme
Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963) (“Fleuti doctrine”). Neither
the respondent nor the DHS argues that the Fleuti doctrine is applicable to this
case as regards the respondent’s alleged conviction for a crime involving
moral turpitude.6 As discussed above, section 212(d)(5) permits parole for the
purpose of prosecution, and we cannot conclude that the grant of parole to an
alien with pending criminal charges would “create either a third category or an
undefined second category of lawful permanent residents who may or may not
be regarded as seeking an admission, depending on a wholly unspecified
set of criteria.” Matter of Collado, 21 I&N Dec. at 1064. When the purposes
of the parole are completed, the application of section 101(a)(13)(C) is
6
We observe that the Supreme Court issued Vartelas v. Holder, 132 S. Ct. 1479 (2012),
subsequent to the Immigration Judge’s decision in this case. The Supreme Court applied
the “antiretroactivity principle” there to hold that a returning lawful permanent resident
could not be regarded as seeking admission under section 101(a)(13) of the Act where his
conviction for an offense under section 212(a)(2) predated the effective date of the IIRIRA.
Id. at 1487-92. Rather, the Supreme Court required an evaluation of the alien’s application
for admission under the Fleuti doctrine, pursuant to which a lawful permanent resident
could make brief, casual, and innocent departures outside the United States without being
classified as an alien seeking entry upon return. While the respondent argues that this case
would apply to his 1991 conviction for possession of cocaine—an issue we do not decide—
he does not claim that it would apply to his 2010 bulk cash smuggling conviction, which
obviously postdates the effective date of the IIRIRA.
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straightforward. In this case, such an approach is consistent with Congress’
intent to allow parole for the purpose of prosecution.
Nothing in section 101(a)(13)(C) suggests that Congress wanted to
eliminate the DHS’s longstanding authority to parole a lawful permanent
resident into the United States for prosecution. Indeed, this is a sensible
practice because it allows an adjudication in the criminal justice system to
precede immigration proceedings, so if there is no conviction, any immigration
consequences would be unlikely.
In any event, the Immigration Judge’s attempt to decide the admissibility
issue at the time the respondent was initially stopped at the border is at odds
with the well-established immigration practice that treats an application for
admission as a continuing one. The DHS should not be required to prove its
case based on the information it had in August 2009. It would be ill-advised
to turn admissibility questions into retrospective inquiries when the pertinent
ground does not expressly call for such, and we decline to do so here. We
cannot agree with the respondent’s view of this case, which the concurring and
dissenting opinion apparently shares. That view would effectively eliminate
the DHS’s ability to parole a lawful permanent resident for prosecution and
thus is contrary to longstanding administrative precedent.
Specifically, our interpretation of the interplay of the parole authority of
the DHS and the special status of returning lawful permanent residents is
strongly supported by the Attorney General’s precedential decision in Matter
of K-, 9 I&N Dec. at 154-58. In that case, which presented a similar situation,
immigration authorities paroled a returning lawful permanent resident into
the United States upon learning at the port of entry that he was implicated
in large-scale diamond smuggling activities, which could constitute a crime
involving moral turpitude. The alien was subsequently prosecuted and
convicted, and he was then ordered excluded in exclusion proceedings. Like
the Immigration Judge here, we had found that the eligibility of a returning
lawful permanent resident alien must be determined as of the time of the initial
application for admission, that is, at the border, and that the results of any
subsequent conviction while on parole did not affect the alien’s eligibility for
admission.
The Attorney General reversed the Board’s decision 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 alien’s
admissibility in a postconviction exclusion proceeding. Subsequent 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
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of the law and facts existing at the time the application is finally considered.
See, e.g., Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA 1984).
To be sure, this country’s immigration laws relating to returning lawful
permanent residents have changed since the time of the Attorney General’s
1961 decision. For example, in 1963 the Supreme Court determined in
Rosenberg v. Fleuti that an “innocent, casual, and brief excursion” by a
resident alien outside this country’s borders would not subject him to the
consequences of an “entry” on his return. 374 U.S. 449. However, in Matter
of Alvarez-Verduzco, 11 I&N Dec. 625 (BIA 1966), we distinguished Fleuti
on its facts and found that it was immaterial to an alien’s inadmissibility that
his conviction took place only after his return to the United States, while he
was on parole for purposes of prosecution. Thus we implicitly determined
that, even after the creation of the Fleuti doctrine, the basic premise of Matter
of K- remained valid. Id. at 626.
In addition, in 1996 Congress amended section 101(a)(13) of the Act,
replacing the definition of “entry” with one for “admission” and “admitted”
and indicated that, with certain specified exceptions, a returning lawful
permanent resident is not considered to be seeking admission. See IIRIRA
§ 301(a), 110 Stat. at 3009-575. We assessed the changes brought about by
this law in Matter of Rivens, 25 I&N Dec. at 625, and found “no reason to
depart from our longstanding case law holding that the DHS bears the burden
of proving by clear and convincing evidence that a returning lawful permanent
resident is to be regarded as seeking an admission,” thus preserving more than
35 years of consistent treatment of the burden, despite various changes to the
relevant admission statutes. Likewise, we find no reason to believe that the
Attorney General’s decision in Matter of K-, which concerns the ability of
immigration authorities to parole returning lawful permanent residents into the
United States for purposes of prosecution, has been abrogated by IIRIRA’s
subsequent changes in the statute, and we find that it remains persuasive, if not
binding, authority.7
We acknowledge that the United States Court of Appeals for the Third
Circuit recently applied a different analysis to arrive at essentially the same
7
A House Report explaining the purpose of the provision that became section 301 of the
IIRIRA identifies an intention to “replace certain aspects of the current ‘entry doctrine,’
under which illegal aliens who have entered the United States without inspection gain
equities and privileges in immigration proceedings that are not available to aliens who
present themselves for inspection at a port of entry,” and to “preserve[] a portion of the
Fleuti doctrine . . . [while] overturn[ing] certain interpretations of Fleuti.” H.R. Rep. No.
104-469, at 225-26 (1996). We have found no indication of any congressional intent to
restrict the Attorney General’s—and now the DHS’s—previously recognized authority to
parole returning lawful permanent residents for prosecution.
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result we reach today. Doe v. Att’y Gen. of U.S., 659 F.3d 266 (3d Cir. 2011).
The court reasoned that because section 212(d)(5) only permits an alien to
be paroled if he or she is an “applicant for admission,” and because section
101(a)(13)(C) only permits a returning lawful permanent resident to be deemed
an applicant for admission if one or more of the six specified criteria applies,
some threshold showing must be made that a returning lawful permanent
resident fits within an exception before he or she can be paroled.
The majority in Doe recognized that “[t]he initial decision whether to treat
a permanent resident as an alien seeking admission is made by an immigration
officer working at the alien’s point of arrival in this country” and that an
“elevated standard” would not be consistent with the purposes of the parole
statute. Id. at 272. It thus held that the DHS could meet its burden of
establishing that the exception contained at section 101(a)(13)(C)(v) for a
lawful permanent resident “who has committed an offense identified in section
212(a)(2)” had been met by showing that there was “probable cause to believe”
that the alien had committed one of the crimes set forth in that section. Id.
The majority further held that this burden needed to be met by the DHS at the
time the returning lawful permanent resident sought entry and the DHS sought
to parole him. Id. at 269-70, 272.
We observe that under either the approach taken by the Third Circuit or
that which we take here, the result would be the same for a returning lawful
permanent resident who has been indicted for and is later convicted of a crime
involving moral turpitude.8 Thus, we emphasize that we differ with the Third
Circuit mainly in its approach, not its ultimate conclusion.9 It is true that we
8
We note that the alien in Doe was implicated in conduct that clearly constituted a
turpitudinous crime, namely, wire fraud. In contrast, the respondent’s offense of conviction
may or may not ultimately be found to constitute such a crime. The Immigration Judge did
not reach this issue, and we will leave it open for resolution on remand.
9
Specifically, as we previously indicated in Matter of Rivens, 25 I&N Dec. at 626 n.4, we
respectfully disagree with the Doe court’s approach because we find that it is based in part
on an apparent misapprehension of the legal effect of treating a returning lawful permanent
resident as an applicant for admission. Contrary to the court’s apparent understanding, see
Doe v. Att’y Gen. of U.S., 266 F.3d at 270-71, treating a returning lawful permanent resident
as an applicant for admission, paroling such an alien, or even convicting such an alien of a
crime identified in section 212(a)(2) does not remove the alien’s status as a lawful
permanent resident. See Matter of Lok, 18 I&N Dec. 101 (BIA 1981) (holding that a lawful
permanent resident retains such status until entry of a final administrative order of removal).
Further, the Doe court’s holding that a threshold standard must be met by the DHS before
a returning lawful permanent resident is paroled for prosecution fails to take account of the
provisions of section 235(a)(1) of the Act, 8 U.S.C. § 1225(a)(1) (2006), which the court
never discussed. Pursuant to section 235(a)(1) of the Act, “An alien present in the
(continued...)
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are unable to agree with Doe that, for purposes of the assessment of the
validity of a subsequent removal proceeding, the DHS must meet a threshold
standard before it may parole a returning lawful permanent resident into the
United States for prosecution and then charge him with inadmissibility on the
basis of the results.10 Nevertheless, the salient point about Doe is that it would
definitely not subscribe to the view of the concurring and dissenting opinion
that a returning lawful permanent resident may not be paroled for purposes of
prosecution where clear and convincing evidence of the alien’s commission of
a crime involving moral turpitude was not available at the point of arrival.
To our knowledge, no threshold test for parole has ever been required in
the context of determining the validity of removal proceedings. Moreover, to
do so would create tension with principles relating to the DHS’s exercise
of prosecutorial discretion. See Matter of E-R-M- & L-R-M-, 25 I&N Dec.
520 (BIA 2011). In taking the position that the respondent’s susceptibility to
inadmissibility charges must be ascertained by determining whether he was
“properly paroled,” which in turn would entail assessing the “evidence the
DHS would have possessed at the time the respondent presented himself at the
border,” the concurring and dissenting opinion raises serious questions with
regard to our authority to oversee and regulate the DHS’s exercise of its
law enforcement duties and prerogatives at the ports of entry, including its
(...continued)
United States who has not been admitted or who arrives in the United States (whether or not
at a designated port of arrival and including an alien who is brought to the United States
after having been interdicted in international or United States waters) shall be deemed for
purposes of this Act an applicant for admission.” In addition to including aliens who have
entered the United States without inspection, see Matter of Lemus, 25 I&N Dec. 734, 743
n.6 (BIA 2012), this general definition squarely covers parolees, because they, too, are
persons present in the United States without being admitted. Thus, parolees qualify as
“applicants for admission” under section 235(a)(1) of the Act. To be sure, section
101(a)(13)(C) sets forth an exception applicable to returning lawful permanent residents.
However, for the reasons we have explained, that exception comes into play at a different
time, that is, in the context of removal proceedings, if and when they have begun.
10
In that regard, we disagree with the Doe majority that there “is a hole in the Immigration
and Nationality Act [because it] requires an immigration officer to determine whether an
arriving lawful permanent resident has committed a crime, but omits mention of how the
officer is to do so.” 659 F.3d at 271-72. We submit that our decisions in Matter of Rivens
and this case show that the various applicable statutory provisions work harmoniously and
that there is no need to create a two-stage process whereby first probable cause, and later
clear and convincing evidence, of such an alien’s commission of a turpitudinous crime must
be demonstrated.
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prerogative to grant parole. Matter of Valenzuela-Felix, 26 I&N Dec. 53, 65,
70 (BIA 2012) (Cole, concurring and dissenting).
We have previously held that “in the nature of things it is singularly
appropriate that the parole power in exclusion proceedings be exercised by
[Immigration and Naturalization] Service personnel at the field office level
and not by this Board,” and that we have not been delegated, “directly or
by implication, [the] parole authority under section 212(d)(5) of the Act.”
Matter of Conceiro, 14 I&N Dec. 278, 281-82 (BIA 1973), aff’d, 360 F. Supp.
454 (S.D.N.Y. 1973). Likewise, we have recognized that we generally lack
authority to review the “manner” in which the parole power is exercised by
Government officials, including in situations where a party’s challenge extends
not only to whether a particular grant or denial of parole constitutes an
abuse of discretion, but also to whether a contested parole policy is fair, is
authorized, or conforms to congressional intent. See Matter of United Airlines
Flight UA802, 22 I&N Dec. 777, 780-82 (BIA 1999).11
We can discern no indication that when Congress enacted section
101(a)(13)(C) of the Act in 1996, it intended to alter the well-established
restrictions on our ability to intrude into parole determinations. Indeed, given
the subsequent transfer of the parole power from the Attorney General to
a new Department (the DHS), of which this Board is not a part, our assumption
of authority to review parole determinations would be even more anomalous.
See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135;
Matter of Castillo-Padilla, 25 I&N Dec. 257, 261 & n.1 (BIA 2010)
(recognizing that the Attorney General no longer has parole authority
under section 212(d)(5) of the Act). Our holding that section 101(a)(13)(C)
generally relates to the conduct of removal proceedings, rather than the
exercise of parole authority, avoids such an anomaly.
Nor do we believe that Congress intended to constrain the DHS in its
ability to prove the applicability of one of the six enumerated exceptions in
section 101(a)(13)(C) by limiting the DHS to using the evidence it already
possesses when a returning lawful permanent resident presents himself at a
11
That is not, however, to say that no court has such authority. We further note that there
is no claim that the DHS in this case arbitrarily exercised its parole authority. Nor are we
aware of any more general allegation that the DHS has been misusing its authority in this
regard, for example, by paroling returning lawful permanent residents for purposes of
prosecution where there is no indication that the alien committed an offense or any
manifested intent to institute a criminal proceeding. We reiterate that in this case the
respondent had been indicted. We need not address potential abuses of the parole authority
in contexts other than parole for purposes of prosecution, because our holding here does not
purport to address inadmissibility charges brought against returning lawful permanent
residents who receive other kinds of parole.
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port of entry, at least where, as here, there is no allegation that a parole for
purposes of prosecution was effected in bad faith. See supra note 11.
Given that it states no other legal standard, the concurring and dissenting
opinion apparently would require that the DHS possess evidence meeting the
ultimate “clear and convincing evidence” standard of proof at the time of the
lawful permanent resident’s arrival at the port of entry. See Rivens, 25 I&N
Dec. at 625-26 (stating that the DHS must establish applicability of one of the
six enumerated provisions in section 101(a)(13)(C) by clear and convincing
evidence). At that point, however, the DHS is rightly devoting its resources
to carrying out its law enforcement responsibilities involving control of
the flow of aliens into this country, rather than to ensuring that it already
has enough evidence to sustain its ultimate burden of proof in removal
proceedings that subsequently may be instituted and litigated.12 See Doe
v. Att’y Gen. of U.S., 659 F.3d at 272 (acknowledging that “one of the
purposes of the provision allowing an arriving permanent resident to be treated
as an applicant for admission appears to have been to permit the government
to invoke procedures like [section 212(d)(5)] parole—including parole for
purposes of prosecution,” and that “[r]equiring that the government develop
evidence sufficient to win its case before it can take the step of paroling a
person for prosecution would make little sense”).
We emphasize that nothing in our holding is intended to lessen the
DHS’s burden to establish by clear and convincing evidence at the time of the
removal hearing that a returning lawful permanent resident who is charged with
inadmissibility, in fact, comes within one of the six enumerated provisions in
section 101(a)(13)(C) and consequently may be regarded as an applicant for
admission. Rather, we hold only that in the context of the parole of a returning
lawful permanent resident for purposes of prosecution of pending criminal
charges, the DHS need not already possess all of the evidence pertinent to
sustaining its burden at the time the lawful permanent resident first seeks to
come back into the United States, and it ordinarily may rely on the results of the
12
We note that although the regulations provide for parole for the purpose of deferred
inspection at a location other than the initial port of entry, these regulations nevertheless
treat the “deferred” alien as a continuing “applicant for admission” at the onward port
or district office. See 8 C.F.R. § 235.2(a) (2012). Under the concurring and dissenting
opinion’s apparent view, parole for deferred inspection of a lawful permanent resident to
allow more time to determine whether he comes within one of the six clauses of section
101(a)(13)(C) would not be permitted because “before a returning lawful permanent resident
may be regarded as an applicant for admission, and thus be subject to being paroled into the
United States rather than simply being admitted, it must first be established that one of the
six provisions of section 101(a)(13)(C) applies.” Matter of Valenzuela-Felix, 26 I&N Dec.
at 66 (Cole, concurring and dissenting) (emphasis added).
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prosecution for purposes of applying section 101(a)(13)(C) in any subsequent
removal proceedings.
In light of the above, we conclude that the DHS should have been permitted
to try to establish by clear and convincing evidence at the time of the
removal hearing that the respondent committed an offense that is identified
in section 212(a)(2) of the Act for the purpose of potentially carrying its
burden of establishing that the respondent was an applicant for admission
under section 101(a)(13)(C) and, consequently, was chargeable under the
inadmissibility ground at section 212(a)(2)(A)(i)(I). Therefore, we conclude
that the Immigration Judge erred in terminating the respondent’s removal
proceedings. Accordingly, the DHS’s appeal will be sustained and the record
will be remanded with instructions that the Immigration Judge make a
determination whether the DHS has met its burden in these proceedings.13
ORDER: The appeal of the Department of Homeland Security is sustained,
the decision of the Immigration Judge is vacated, and the removal proceedings
are reinstated.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing decision and for the entry
of a new decision.
CONCURRING AND DISSENTING OPINION: Patricia A. Cole, Board
Member
I respectfully concur with the majority opinion insofar as it addresses aliens
who have been properly paroled into the United States. Specifically, I agree
that if an alien has been properly paroled into the United States and has then
been charged with a ground of inadmissibility in removal proceedings, the
respondent is an applicant for admission and is inadmissible as charged until the
time of the removal hearing. Where I depart from my colleagues is in their
implicit assumption that a lawful permanent resident alien who is returning
from a trip abroad, such as the respondent in this case, can be regarded as an
applicant for admission because of an outstanding arrest warrant.
This case does not concern the parole authority of the Department
of Homeland Security (“DHS”) when it paroles an arriving lawful
permanent resident alien. Rather, the issue presented is when a returning
13
We express no opinion as to the ultimate outcome of this inquiry. Moreover, if the
Immigration Judge finds that the respondent’s 2010 conviction is not for a crime involving
moral turpitude, he should determine whether the respondent can properly be charged with
removability based on his 1991 controlled substance conviction in light of Vartelas
v. Holder, 132 S. Ct. 1479. See supra note 6.
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lawful permanent resident may be regarded as seeking an admission and be
treated as an arriving alien at the port of entry.1
The respondent is a longtime lawful permanent resident of the
United States. In August 2009, upon return from a trip abroad, he sought entry
to the United States as a returning lawful permanent resident. The DHS
determined that the respondent was an arriving alien and paroled him into the
country for prosecution, which resulted in his conviction. In subsequent
removal proceedings, the Immigration Judge found that the Government had
not shown that at the time the respondent sought entry into the United States
in August 2009, he was an arriving alien. I agree with the Immigration Judge.
The plain and unambiguous language of section 101(a)(13)(C) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), provides
that a returning lawful permanent resident alien shall not be regarded
as seeking an admission unless one of six enumerated provisions applies.
Accordingly, before a returning lawful permanent resident may be regarded as
an applicant for admission, and thus be subject to being paroled into the
United States rather than simply being admitted, it must first be established
that one of the six provisions of section 101(a)(13)(C) applies. In this case, the
DHS argues that the respondent is to be regarded as an applicant for
admission pursuant to section 101(a)(13)(C)(v), which states that returning
lawful permanent residents who have “committed” an offense identified in
section 212(a)(2) of the Act, 8 U.S.C. § 1182(a)(2) (2006), may be regarded
as applicants seeking admission unless they have been granted relief under
section 212(h) or section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2006).
As a lawful permanent resident returning after a temporary visit abroad, the
respondent should not have been regarded as an arriving alien, that is, paroled
into the United States for prosecution on the basis of an arrest warrant,
because in August 2009 it was not established that he had committed an
offense identified in section 212(a)(2) of the Act. The respondent should have
been admitted, and he could later be subject to removal proceedings pursuant
1
I find that the majority’s reliance on the Attorney General’s 1961 decision in Matter of K-,
9 I&N Dec. 143, 154 (BIA 1959; A.G. 1961), complaint dismissed sub nom. Klapholz
v. Esperdy, 201 F. Supp. 294 (S.D.N.Y. 1961), aff’d per curiam, 302 F.2d 928 (2d Cir.
1962), which discusses the authority of immigration officers to parole returning lawful
permanent residents into the United States, is misplaced. Congress subsequently amended
the Act in 1996 to explicitly set forth the limited circumstances in which a returning lawful
permanent resident is to be regarded as seeking admission and therefore be subject to parole,
so the statutory scheme has significantly changed since the issuance of that decision more
than 50 years ago. See Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”).
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to section 237(a) of the Act, 8 U.S.C. § 1227(a) (2006), as opposed to being
considered as an alien who is ineligible for admission.2
In my view, the majority has redefined the Act by finding that the
determination of an “arriving lawful permanent resident” in section
101(a)(13)(C) of the Act only comes into play in the context of removal
proceedings. Moreover, the majority does not distinguish between parole for
prosecution and the rights and privileges of a lawful permanent resident
returning to the United States from a trip abroad. In this regard, this Board and
other tribunals have long recognized the fact that lawful permanent residents
enjoy greater rights and privileges and generally have stronger ties to the
United States than other aliens. See Taniguchi v. Schultz, 303 F.3d 950,
957-58 (9th Cir. 2002); Moore v. Ashcroft, 251 F.3d 919, 925 (11th Cir.
2001); Lara-Ruiz v. INS, 241 F.3d 934, 947 (7th Cir. 2001). One of the
manifestations of this fact is that returning lawful permanent residents are, by
statute, treated differently from other aliens seeking to be admitted to the
United States.3
The majority relies on our recent holding in Matter of Rivens, 25 I&N Dec.
623 (BIA 2011), 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 six enumerated provisions in section 101(a)(13)(C) of the Act
for an alien to be regarded as seeking admission into the United States.
However, Rivens does not distinguish between the removability of a lawful
permanent resident and the point at which he or she can be regarded as an
arriving alien. The burden of proof for removal should not equate to the
burden of proof to determine whether or not a returning lawful permanent
resident may be treated as an applicant for admission.
Moreover, I note that the factual scenario in Matter of Rivens is
distinguishable from the respondent’s situation. In Rivens, the alien had
already been convicted of a crime involving moral turpitude at the time he
presented himself at the point of entry, and he therefore was clearly ineligible
2
Under section 212(a)(2)(A) of the Act, an alien is inadmissible if he or she has committed
a crime involving moral turpitude at any time. By contrast, an alien is removable under
section 237(a)(2)(A) only if he has been convicted of a crime involving moral turpitude that
was committed within 5 years of the date of admission.
3
In Vartelas v. Holder, 132 S. Ct. 1479 (2012), the Supreme Court noted the Board’s
statement that in passing the IIRIRA in 1996, Congress “‘expressly preserve[d] some, but
not all, of the Fleuti doctrine’ when it provided that a lawful permanent resident absent from
the United States for less than 180 days would not be regarded as seeking an admission
except in certain enumerated circumstances, among them, prior commission of a crime
involving moral turpitude.” Id. at 1484 n.2 (quoting Matter of Collado, 21 I&N Dec. 1061,
1065 (BIA 1998)).
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for admission. In this case, the respondent had not yet been convicted of a
crime involving moral turpitude when he sought to return to his lawful
domicile or permanent residence. Furthermore, as a lawful permanent
resident, the respondent would not be removable for a crime involving moral
turpitude unless he was convicted of such a crime within 5 years of admission
or was convicted of two or more crimes involving moral turpitude at any time
after admission. See sections 237(a)(2)(A)(i)–(ii) of the Act.
In fact, what the majority creates in this case is precisely the type of “third
category or an undefined second category” of returning lawful permanent
residents discussed in Matter of Collado, 21 I&N Dec. 1061 (BIA 1998). We
recognized there that section 101(a)(13)(C) of the Act provided a general rule
that an alien lawfully admitted for permanent residence is not to be regarded
as seeking admission and specified exceptions to this general rule under which
a lawful permanent resident will be regarded as seeking admission. We
rejected the dissent’s view that even if an exception such as the commission
of a crime involving moral turpitude under section 212(a)(2) applied, the alien
was not required to be treated as seeking admission but could simply be treated
as such depending on the presence or absence of various factors attendant to
both the nature of the departure and the violation in question. We found that
such an approach would be inconsistent with the definitional nature of section
101(a)(13)(C) and would create “either a third category or an undefined second
category of lawful permanent residents who may or may not be regarded as
seeking an admission, depending on a wholly unspecified set of criteria that,
presumably, would be developed by case-by-case adjudication.” Id. at 1064.
In my view, the majority’s approach in this case would place the respondent
into precisely this type of third category, namely, a returning lawful permanent
resident who is neither admitted nor deemed inadmissible, but who, instead,
is paroled into the United States, may or may not subsequently be charged,
tried, and convicted of a crime involving moral turpitude, and may or may not
be found to be inadmissible at the time of a later removal hearing based on
whether or not such conviction has, in fact, occurred.
I observe that admitting such a returning lawful permanent resident would
not leave the DHS without recourse. If the returning lawful permanent
resident were later found to have “committed” a crime involving moral
turpitude and would be deportable under section 237 of the Act, the DHS
could commence removal proceedings. The difference between bringing
removability charges under section 212(a)(2)(A) and section 237(a)(2)(A),
both of which refer to crimes involving moral turpitude, is not merely
academic. As previously noted, whether a returning lawful permanent resident
is treated as inadmissible or deportable may determine whether he or she can
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remain in the United States because there is an important difference in
the Act’s treatment of those who have committed crimes involving moral
turpitude.
Under section 212(a)(2)(A) of the Act, an alien who has committed a crime
involving moral turpitude at any time is inadmissible. By contrast, an alien is
removable under section 237(a)(2)(A) if he or she has been convicted of a
single crime involving moral turpitude, and only then if the offense was
committed within 5 years of the date of admission. By providing that returning
lawful permanent residents shall not be regarded as arriving aliens subject to
charges of inadmissibility absent a showing that one of the six enumerated
grounds applies, Congress again recognized the fact that lawful permanent
residents, who enjoy greater rights and privileges than other aliens, should be
removed for the commission of a single crime involving moral turpitude only
if the offense is committed with the first 5 years of the alien’s admission for
permanent residence.
Moreover, the plain language of section 212(d)(5) of the Act supports the
view that the DHS must determine whether a returning lawful permanent
resident is to be regarded as an applicant for admission prior to paroling the
alien. That section, which describes the Attorney General’s parole authority,
by definition allows the Attorney General to parole into the United States “any
alien applying for admission to the United States.” Section 212(d)(5)(A) of
the Act. Similarly, the regulation at 8 C.F.R. § 1001.1(q) (2012) defines an
“arriving alien” as “an applicant for admission.” This is in contrast to section
101(a)(13)(C), which states that a returning lawful permanent resident alien
shall not be regarded as seeking an admission unless one of six enumerated
provisions applies. Thus, it is clear that a determination whether a returning
lawful permanent resident is seeking an admission must be made at the time
that the alien presents at the border or port of entry. Only a lawful permanent
resident identified in one of the six exceptions in section 101(a)(13)(C) of the
Act may be paroled into the United States for possible removal proceedings.
Accordingly, I conclude that in order to find that the respondent should be
regarded as seeking admission and therefore subject to being paroled into the
United States, the DHS needed adequate evidence to establish that he had
committed a crime involving moral turpitude at the time the respondent sought
to return to the United States as a lawful permanent resident.
This inevitably raises the question of how, or by what standard, the
DHS was required to determine that the respondent had “committed” an
offense identified in section 212(a)(2) of the Act and thus was to be
regarded as seeking admission at the time he presented himself for
inspection at the border. The statutory text itself provides the answer. Section
212(a)(2)(A)(i)(I) of the Act makes inadmissible and ineligible to be admitted
any alien who has been “convicted of, or who admits having committed, or
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who admits committing acts which constitute the essential elements of . . . a
crime involving moral turpitude.” Thus, in order for the DHS to determine
that a returning lawful permanent resident has “committed” a crime involving
moral turpitude, it would be required to establish that he was convicted of,
admitted having committed, or admitted committing acts that constitute the
elements of such an offense, which the DHS routinely does as part of the
standard inspection or admission process.
In this case, the Immigration Judge found that the only evidence the DHS
would have possessed at the time the respondent presented himself at the
border was a warrant for his arrest on bulk cash smuggling charges. I would
find no clear error in this factual determination. See 8 C.F.R. § 1003.1(d)(3)(i)
(2012) (indicating that the Board must defer to the Immigration Judge’s factual
findings unless they are clearly erroneous). Because the respondent had not
yet been convicted of a crime involving moral turpitude at the time he came to
the border, and there is no evidence indicating that he otherwise then admitted
to having committed such an offense or the elements of such an offense, I
would find that he is a returning lawful permanent resident. I would therefore
affirm the Immigration Judge’s decision terminating removal proceedings
without prejudice.
Accordingly, I respectfully dissent from the majority’s view that the
respondent was appropriately regarded as an arriving alien.
70