Vazquez Romero v. Garland, No. 15-72947 (9th Cir. 2021)
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The Ninth Circuit denied a petition for review of the BIA's final order of removal. At issue is whether the government must carry its burden of proving that a returning LPR meets one of the six exceptions under 8 U.S.C. 1101(a)(13)(C) before it paroles that LPR into the United States under section 1182(d)(5).
The panel deferred to a precedential opinion issued by the BIA, Matter of Valenzuela-Felix, 26 I. & N. Dec. 53 (BIA 2012), and held 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. In this case, when petitioner arrived at LAX, the CBP exercised its discretion to parole him into the United States for prosecution; the panel explained that it does not second-guess the CBP's decision to do so; petitioner then pleaded guilty to a crime involving moral turpitude; and, at subsequent removal proceedings, the government properly relied on petitioner'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 under section 1101(a)(13)(C)(v). Therefore, petitioner was properly subjected to a charge of inadmissibility.
Court Description: 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 8 U.S.C. § 1101(a)(13)(C), when such a determination depends on facts that are not practically ascertainable at the border; but at subsequent removal proceedings, the government must prove by clear and convincing evidence that the returning LPR falls within one of the exceptions under § 1101(a)(13)(C). 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 § 1101(a)(13)(C), a returning LPR shall not be regarded as seeking an admission unless one of six exceptions applies. One such exception applies if the LPR has committed a crime involving moral turpitude. 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 8 U.S.C. § 1182(d)(5) for prosecution. Section 1182(d)(5) gives the Attorney General VAZQUEZ ROMERO V. GARLAND 3 the discretion to parole into the United States any alien applying for admission, and a grant of parole does not affect the alien’s immigration status. 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 § 1101(a)(13)(C) (and therefore may be regarded as seeking an admission), before it can parole the returning LPR into the United States under § 1182(d)(5) (albeit with LPR status intact). Applying the Chevron framework, the panel first concluded that Congress has not spoken to this issue. The panel next concluded that the BIA reasonably interpreted § 1182(d)(5) and § 1101(a)(13)(C) as allowing the government to exercise its discretion to parole a returning LPR into the United States for prosecution before satisfying its burden of proof. Given that the government must prove by clear and convincing evidence that a returning LPR is seeking an admission, the panel explained it would be impractical and 4 VAZQUEZ ROMERO V. GARLAND inefficient to require it to meet this burden at the border. Moreover, the panel explained that the text of § 1101(a)(13)(C) does not preclude a delayed determination of whether a returning LPR meets the exception, and that second-guessing whether immigration authorities properly paroled a returning LPR would interfere with the government’s exercise of its parole discretion. The panel further explained that the BIA’s conclusion that it lacked authority to review the government’s discretionary decision to parole a returning LPR into the United States is consistent with congressional intent to shield discretionary decisions from judicial review. Finally, the panel observed that the Fifth Circuit had already adopted the BIA’s interpretation. 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 § 1101(a)(13)(C)(v), and that he was therefore properly subjected to a charge of inadmissibility. VAZQUEZ ROMERO V. GARLAND 5
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