Munoz v. Holder

• Decision Date: 19 June 2014
• Docket Number: No. 13–60037.,13–60037.
• Citation: 755 F.3d 366
• Parties: Maria Luz MUNOZ, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

755 F.3d 366

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.

Paul Steven Zoltan, Esq. (argued), Dallas, TX, for Petitioner.

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.

Petition for Review of an Order of the Board of Immigration Appeals.

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 been a lawful permanent resident ¹ of the United States since 1996. In November 2010, a Texas grand jury indicted her for assault and aggravated assault with a deadly weapon for an incident on June 2, 2010, where she pepper-sprayed a woman, apparently her husband's lover, and struck the woman with a club. In December 2010, Munoz left the United States to undergo gallstone surgery in Mexico. Upon her return to the United States following her gallstone surgery a few weeks later, border patrol agents in Laredo, Texas, discovered that she had an outstanding arrest warrant for assault and aggravated assault with a deadly weapon arising from that June 2010 incident, and arrested her.

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 8 U.S.C. § 1101(a)(13)(C)(v); § 1182(a)(2)). Now lawful permanent residents returning to the United States, like Munoz, “may be required to seek an admission into the United States.” Id. at 1484 (alteration and internal quotation marks omitted). “An alien seeking ‘admission’ to the United States is subject to various requirements, and cannot gain entry if she is deemed ‘inadmissible’ on any of the numerous grounds set out in the immigration statutes.” Id. (citations omitted).

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 8 U.S.C. § 1182(a)(2)(A)(i)(I) as an alien who had been convicted of a crime involving moral turpitude. The notice to appear alleged that Munoz was a parolee “appl[ying] for admission” to the United States. On December 15, 2011, Munoz appeared before the immigration judge and admitted that she was not a United States citizen and that she had been convicted of aggravated assault with a deadly weapon in Dallas County, Texas. She denied, however, that she applied for admission to the United States in January 2011, and that she was paroled into the United States for criminal prosecution.²

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 did not establish that she was paroled into the United States for criminal prosecution. The immigration judge indicated that he was going to sustain the charge and find that Munoz was subject to removal as an alien. The immigration judge held a hearing on the merits of Munoz's request for cancellation. At the hearing, the immigration judge issued an oral decision finding Munoz removable as charged and ineligible for cancellation of removal based on an adverse credibility determination.

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.

II.

We have jurisdiction to review constitutional and legal challenges to an order of removal against a criminal alien. 8 U.S.C. § 1252(a)(2)(D). We may not review the order's factual findings. 8 U.S.C. § 1252(a)(2)(C).⁴ We review the BIA's decision and consider the underlying decision of the immigration judge only if it influenced the determination of the BIA. Ontunez–Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir.2002). Where, as here, the BIA interpreted an unambiguous statutory provision, we review the BIA's legal conclusions de novo. See Orellana–Monson v. Holder, 685 F.3d 511, 517 (5th Cir.2012). The government must present clear and convincing evidence that an alien has been convicted of a crime involving moral turpitude. See Vartelas, 132 S.Ct. at 1492; Matter of Rivens, 25 I. & N. Dec. 623 (BIA 2011) (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 8 U.S.C. § 1101(a)(13)(C)).

III.

We begin with the parole statute, 8 U.S.C. § 1182(d)(5)(A), which provides that “[t]he Attorney General may ... parole into the United States ... any alien applying for admission to the United States.” Ordinarily this provision does not apply to lawful permanent residents, because they are not “regarded as seeking an admission into the United States for purposes of the immigration laws.” 8 U.S.C. § 1101(a)(13)(C). The statute provides, however, six exceptions in which a lawful permanent resident is considered an applicant for admission to the United States. Id. One such exception applies when an alien “has committed an offense identified in section 1182(a)(2).” 8 U.S.C. § 1101(a)(13)(C)(v). Section 1182(a)(2) includes “any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). The record here is clear that Munoz pleaded guilty to aggravated assault with a deadly weapon in February 2011, after she entered the United States and was issued a Form I–94 in January 2011. It is also undisputed that aggravated assault with a deadly weapon qualifies as a crime involving moral turpitude as defined in 8 U.S.C. § 1182(a)(2)(A)(i)(I).

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 committed 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.⁵Section 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 8 U.S.C. § 1101(a)(13)(C)).

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