UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROGELIO VAZQUEZ ROMERO, No. 15-72947 Petitioner, Agency No. v. A091-783-214

MERRICK B. GARLAND, Attorney General, OPINION Respondent.

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

Argued and Submitted May 22, 2020 San Francisco, California

Filed May 28, 2021

Before: Marsha S. Berzon and Sandra S. Ikuta, Circuit Judges, and Ivan L.R. Lemelle,* District Judge.

Opinion by Judge Ikuta

* The Honorable Ivan L.R. Lemelle, United States District Judge for the Eastern District of Louisiana, sitting by designation. 2 VAZQUEZ ROMERO V. GARLAND

SUMMARY**

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

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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