     Case: 13-60037    Document: 00512669950     Page: 1   Date Filed: 06/19/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                  No. 13-60037                             FILED
                                                                       June 19, 2014
                                                                      Lyle W. Cayce
MARIA LUZ MUNOZ,                                                           Clerk

                                            Petitioner,
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                            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.
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                                     No. 13-60037
                                            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, 132 S. Ct. 1479,
1486 (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




      1 A lawful permanent resident includes any person not a citizen of the United States
who is residing in the United States under legally recognized and lawfully recorded
permanent residence as an immigrant. These persons are also known as “Permanent
Resident Aliens,” “Resident Alien Permit Holders,” and “Green Card Holders.”
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‘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


       2This allegation was included in the notice to appear that the DHS sent to Munoz. In
denying this allegation, Munoz argued that her conviction could not trigger removal
proceedings against an alien whose last admission occurred more than five years before the
commission of a crime involving moral turpitude.

       3 The Attorney General has the authority to parole, or temporarily allow, aliens
inadmissible for visas or admission into the United States for specific reasons, as outlined in
8 U.S.C. § 1182. This includes paroling an alien into the United States for criminal
prosecution for crimes involving moral turpitude. 8 U.S.C. § 1182(2)(A)(i)(I).

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                                      No. 13-60037
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


       4  Although Munoz argues that there is 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 is not in the record, we lack jurisdiction to review such factual claims. See 8 U.S.C.
§ 1252(a)(2)(C). Moreover, Munoz has stipulated that the copy of the form presented to the
immigration judge by the government is the same as was before the immigration judge, and
she concedes that when the immigration judge ordered her removal in February 2012, it had
before it ample proof that she was inadmissible for having committed a crime involving moral
turpitude. As a result, we do not consider Munoz’s sufficiency challenge to the BIA’s
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                                     No. 13-60037
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


determination that she was paroled in the United States for criminal prosecution in January
2011.

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                                      No. 13-60037
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. 5    Section 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



       5 Although the government also argued that the BIA’s interpretation is entitled to
deference, we do not reach that issue. The statutory provisions here are unambiguous. See
Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 630 (5th Cir. 2013) (declining to defer to
the SEC’s interpretation of an unambiguous statutory provision).
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                                      No. 13-60037
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)).
       A review of the case law in our sister circuits indicates that only the
Third Circuit has had occasion to consider this particular issue. In Doe v.
Attorney General of the United States, the Third Circuit concluded that the
determination that an alien was an applicant for admission must be made at
the time of reentry, but ultimately reached the same result as we do here, that
a returning lawful permanent resident with an outstanding arrest warrant
could be paroled for criminal prosecution and subsequently charged with
inadmissibility as an arriving alien. 659 F.3d 266, 272–73 (3d Cir. 2011). 6 The
Third Circuit read the statute to mean the DHS must prove that the alien “has
committed” rather than was “convicted” of a crime involving moral turpitude
because § 1101(a)(13)(C)(v) uses the words “has committed.” Id. at 270. This
reading, however, ignores the fact that § 1101(a)(13)(C)(v) refers to
§ 1182(a)(2)(A)(i)(I), which clearly states that the alien had to have been




       6Likewise, even if we were to follow the Third Circuit’s approach here, we would reach
the same result. There was sufficient evidence for the DHS to find that Munoz had committed
a crime involving moral turpitude at the time of her admission.

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                                       No. 13-60037
“convicted of, or who admits having committed, or who admits committing acts”
of a crime involving moral turpitude.
       Our reading comports with the Supreme Court’s recent discussion of
§ 1101(a)(13)(C)(v). In Vartelas, the Supreme Court noted that after the words
“committed an offense,” § 1101(a)(13)(C)(v)’s next words are “identified in
section 1182(a)(2).” 132 S. Ct. at 1492 n.11. 7 Section 1182(a)(2) refers to “any
alien convicted of, or who admits having committed” a crime involving moral
turpitude.       Id.      As    the    Supreme       Court    explained,      “[t]he   entire
§ 1101(a)(13)(C)(v) phrase ‘committed an offense identified in section
1182(a)(2),’ on straightforward reading, appears to advert to a lawful
permanent resident who has been convicted of an offense under § 1182(a)(2)
(or admits to one).” Id. 8 Applying the same “straightforward reading” to the
issue before use, we conclude that the determination does not have to be made
at the time of entry.
       Holding that subsequent convictions can be used to determine whether
a lawful permanent resident was an applicant for admission not only comports
with the language of the statutory provisions; it also makes good practical
sense. After all, the border patrol must make quick judgments on the spot, and
it would be impracticable to require the border patrol agents to gather and
consider all the evidence and reach the same judgment that the immigration
judge makes after more thorough consideration. As the BIA has explained, at



       7 The Court held in Vartelas that § 1101(a)(13)(C) cannot be applied retroactively to a
lawful permanent resident who committed the relevant crime involving moral turpitude prior
to the provision’s effective date. Id. at 1483–84.

       8 In Gonzaga–Ortega v. Holder, the Ninth Circuit interpreted a different subsection of
the same statutory provision, § 1101(a)(13)(C)(iii). 736 F.3d 795, 802 (9th Cir. 2012) (holding
that because subsection (iii) uses the words “has engaged in illegal activity,” rather than
“convicted,” the decision of admission is made “at that time, on the spot, by immigration
officers at the border”).
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                                  No. 13-60037
the port of entry the “DHS is rightly devoting its resources to carrying out its
law enforcement responsibilities involving control and flow of aliens into this
country, rather than ensuring that it already has enough evidence to sustain
its ultimate burden of proof in removal proceedings that subsequently may be
instituted and litigated.” Matter of Valenzuela–Felix, 26 I. & N. Dec. 53, 64
(BIA 2012).
      Moreover, both history and practice demonstrate that the primary
purpose of these statutory provisions was to enable parole of aliens for the
purpose of prosecution. See Matter of K-, 9 I. & N. Dec. 143, 157 (BIA 1959)
(“Congress meant for parole to be used for purposes of prosecution.”).         In
addition, the Attorney General has decided that “admission” is continuing,
rather than an act limited to the exact time that the alien reenters the United
States. See Matter of Valenzuela–Felix, 26 I. & N. Dec. at 56. In Matter of K-,
the BIA reached the conclusion that Munoz argues for here, and determined
that the eligibility of a returning lawful permanent resident must be
determined as of the time of the initial application, or at the border, and that
the results of any subsequent conviction while on parole did not affect the
alien’s eligibility for admission. 9 I. & N. Dec. at 150–51.
      The Attorney General reversed the BIA’s decision in Matter of K-, 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 lawful permanent resident’s admissibility in a post-conviction
exclusion proceeding. 26 I. & N. Dec. at 59. As the BIA explained in Matter of
Valenzuela–Felix, “[s]ubsequent 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 of the law and facts existing at the
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                                     No. 13-60037
time the application is finally considered.” 26 I. & N. Dec. at 59–60 (citing
Matter of Kazemi, 19 I. & N. Dec. 49, 51 (BIA 1984)). As the Valenzuela
majority explained,
          the Attorney General and [the] 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.
Id. at 56.
                                          IV.
          The government may rely on subsequent convictions to meet the clear
and convincing evidence standard in proving that a lawful permanent resident
is applying for admission. The government did so by providing evidence that
Munoz had been convicted of a crime involving moral turpitude for an act that
she committed prior to her application for admission. We therefore DENY
relief.




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