Romero v. Garland
| Decision Date | 28 May 2021 |
| Docket Number | No. 15-72947,15-72947 |
| Citation | 999 F.3d 656 |
| Parties | Rogelio VAZQUEZ ROMERO, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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; Juliana Garcia and Raul Gomez, Gomez & Associates, Los Angeles, California; for Petitioner.
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.
Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle,* District 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." 8 U.S.C. § 1182(d)(5)(A). The INA also provides that a lawful permanent resident (LPR) is not considered to be "seeking an admission into the United States" unless one of six exceptions applies. Id. § 1101(a)(13)(C). One exception is for an LPR who has committed a crime involving moral turpitude. Id. § 1182(a)(2)(A)(i)(I). Thus, an LPR who reenters the country after a trip abroad is considered to be seeking an admission into the United States if he has committed a crime involving moral turpitude.
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 § 1101(a)(13)(C) before it paroles that LPR into the United States under § 1182(d)(5). Deferring to a precedential opinion issued by the Board of Immigration Appeals (BIA), see Matter of Valenzuela-Felix , 26 I. & N. Dec. 53 (BIA 2012), we hold that the government may exercise its discretion to parole a returning LPR into the United States for prosecution without carrying its burden of proving that the LPR falls within one of the six exceptions. The government must, however, carry its burden of proof in subsequent removal proceedings if any ensue.
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 § 1182. 8 U.S.C. § 1229a(c)(2)(A). But if the alien has already been lawfully admitted to the United States, the burden shifts to the government, which must establish by clear and convincing evidence that the alien is deportable. See id. § 1229a(c)(3)(A) ; Gonzaga-Ortega v. Holder , 736 F.3d 795, 802 & n.2 (9th Cir. 2013). Although the removal procedure is the same, "the list of criminal offenses that subject aliens to exclusion remains separate from the list of offenses that render an alien deportable." Vartelas v. Holder , 566 U.S. 257, 263 n.3, 132 S.Ct. 1479, 182 L.Ed.2d 473 (2012). For instance, "although a single crime involving moral turpitude may render an alien inadmissible, it would not render her deportable." Id. ().
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. 8 U.S.C. § 1101(a)(13)(C).2 One such exception applies if the returning LPR "has committed an offense identified in section 1182(a)(2)." Id . § 1101(a)(13)(C)(v). One of the offenses enumerated in § 1182(a)(2) is a crime involving moral turpitude. Id. § 1182(a)(2)(A)(i)(I). Thus, an LPR who has committed a crime involving moral turpitude for purposes of § 1182(a)(2)(A)(i)(I), and seeks to reenter the country, is "regarded as seeking an admission into the United States for purposes of the immigration laws." Id. § 1101(a)(13)(C).
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, 45 S.Ct. 257, 69 L.Ed. 585 (1925) ; Ekiu v. United States , 142 U.S. 651, 661, 12 S.Ct. 336, 35 L.Ed. 1146 (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, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958). The government's historical parole authority has been codified in § 1182(d)(5), which gives the Attorney General the discretion to parole into the United States "any alien applying for admission to the United States."3 8 U.S.C. § 1182(d)(5)(A).
The parole of an alien into the United States does not affect the alien's immigration status. See Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 213, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ; Kaplan , 267 U.S. at 230, 45 S.Ct. 257 ; Ekiu , 142 U.S. at 661, 12 S.Ct. 336. Aliens "paroled elsewhere in the country for years pending removal are treated for due process purposes as if stopped at the border." Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1982, 207 L.Ed.2d 427 (2020) (citation omitted) (cleaned up). This means that LPRs paroled into the United States retain their immigration status until "entry of a final administrative order" of removal. Matter of Lok , 18 I. & N. Dec. 101, 105 (BIA 1981) ; see also Valenzuela-Felix , 26 I. & N. Dec. at 61 n.9.
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 section 11350(a) of the California Health & Safety Code, of possessing cocaine. He was sentenced to more than one year of incarceration. In 2005, he was convicted of petty theft under section 484 of the California Penal Code, and was subject to enhanced penalties reserved for repeat theft offenders under section 666 of the California Penal Code. Later that year, he was convicted of second-degree burglary in violation of section 460(b) of the California Penal Code.
In August 2008, Vazquez Romero was charged a second time for petty theft under section 484 of the California Penal Code. His arraignment was scheduled for August 22, 2008. When he failed to appear, the sheriff's department issued a warrant for his arrest.
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 8 U.S.C. § 1182(a)(2)(A)(i)(I), the CBP paroled Vazquez Romero into the country and handed him over to California authorities for prosecution.
Vazquez Romero later pleaded guilty to committing petty theft in violation of section 484 of the California Penal Code. He was sentenced to a three-year term of probation conditioned upon his serving 365 days in county jail.
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 § 1182(a)(2)(A)(i)(I). Vazquez Romero moved to terminate the removal proceedings, arguing that he should not have been charged as an inadmissible alien. The IJ denied Vazquez Romero's motion to terminate. The BIA dismissed Vazquez Romero's appeal, holding that under Valenzuela-Felix , 26 I. & N. Dec. at 53, when the government paroles a returning LPR into the United States 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."
On appeal, Vazquez Romero argues that because he was a returning LPR, the government could not parole him into the country rather than allowing him to enter the country as a returning LPR unless it first met its burden of proving that he was "an alien seeking an admission" under § 1101(a)(13)(C). To carry that burden, Vazquez Romero argues, the government had to prove that he had committed a crime involving moral turpitude for purposes of § 1182(a)(2)(A)(i)(1). Because the only evidence available at the border was his outstanding warrant, which, according to Vazquez Romero, was insufficient to prove that he had committed a crime involving moral turpitude, the government should have treated him as a returning LPR subject to grounds of deportability rather than inadmissibility.
We have jurisdiction to review the BIA's final order of removal under 8 U.S.C. § 1252(a)(1). We review questions of law and constitutional claims de novo. See Negrete-Ramirez v. Holder , 741 F.3d 1047, 1050 (9th Cir. 2014) ; Liu v. Holder , 640 F.3d 918, 930 (9th Cir. 2011).
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Romero v. Garland
...receive more protection under immigration law than aliens who are seeking admission to the United States." Vazquez Romero v. Garland , 999 F.3d 656, 659 (9th Cir. 2021) (footnote omitted). Romero was lawfully admitted and is not now an applicant for admission, so our decision in Lopez-Vasqu......