IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60037

MARIA LUZ MUNOZ,

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. 

United States Court of Appeals

Fifth Circuit

FILED

June 19, 2014

Lyle W. Cayce

Clerk

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I.

Munoz is a native of Mexico and has been a lawful permanent resident1

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 

2 This 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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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 I94 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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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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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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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 

6 Likewise, 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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“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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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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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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