In re Valenzuela-Felix
| Decision Date | 16 November 2012 |
| Docket Number | Interim Decision #3773 |
| Citation | 6 I&N Dec. 53 |
| Parties | Matter of Jaime Enrique VALENZUELA-FELIX, Respondent |
| Court | U.S. DOJ 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
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.
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 theImmigration 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.
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
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 theAct 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.
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) (). 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) (); 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) (...
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