FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGELIO VAZQUEZ ROMERO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney

General,

Respondent.

No. 15-72947

Agency No.

A091-783-214

OPINION

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 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

COUNSEL

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; JulianaGarcia 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.

OPINION

IKUTA, Circuit 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.
6 VAZQUEZ ROMERO V. GARLAND

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.

I

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.1In 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.

1

 For purposes of the INA, “[t]he term ‘alien’ means any person not

a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3).
VAZQUEZ ROMERO V. GARLAND 7

257, 263 n.3 (2012). For instance, “although a single crime

involving moral turpitude may render an alien inadmissible,

it would not render her deportable.” Id. (first citing 8 U.S.C.

§ 1182(a)(2), which lists excludable crimes; then citing

8 U.S.C. § 1227(a)(2), which lists deportable crimes).

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

2

 8 U.S.C. § 1101(a)(13)(C) provides:

(C) An 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 the alien—

(i) has abandoned or relinquished that status,

(ii) has been absent from the United States for a

continuous period in excess of 180 days,

(iii) has engaged in illegal activity after having

departed the United States,

(iv) has departed from the United States while under

legal process seeking removal of the alien from the

United States, including removal proceedings under this

chapter and extradition proceedings,
8 VAZQUEZ ROMERO V. GARLAND

returningLPR“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 (1925); Ekiu v. United

States, 142 U.S. 651, 661 (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 (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).

(v) has committed an offense identified in section

1182(a)(2) of this title, unless since such offense the

alien has been granted relief under section 1182(h) or

1229b(a) of this title, or

(vi) is attempting to enter at a time or place other than

as designated by immigration officers or has not been

admitted to the United States after inspection and

authorization by an immigration officer.

3

 The entire provision provides:

The Attorney General may, except as provided in

subparagraph (B) or in section 1184(f) of this title, in
VAZQUEZ ROMERO V. GARLAND 9

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 (1953);

Kaplan, 267 U.S. at 230; Ekiu, 142 U.S. at 661. 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, 140 S. Ct.

1959, 1982 (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.

II

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

his discretion parole into the United States temporarily

under such conditions as he may prescribe only on a

case-by-case basis for urgent humanitarian reasons or

significant public benefit any alien applying for

admission to the United States, but such parole of such

alien shall not be regarded as an admission of the alien

and when the purposes of such parole shall, in the

opinion of the Attorney General, have been served the

alien shall forthwith return or be returned to the custody

from which he was paroled and thereafter his case shall

continue to be dealt with in the same manner as that of

any other applicant for admission to the United States.

8 U.S.C § 1182(d)(5)(A).
10 VAZQUEZ ROMERO V. GARLAND

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
VAZQUEZ ROMERO V. GARLAND 11

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

Romeromoved 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.

III

We have jurisdiction to review the BIA’s final order of

removal under 8 U.S.C. § 1252(a)(1). We review questions
12 VAZQUEZ ROMERO V. GARLAND

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).

A

We begin by considering the government’s obligation at

the border when it paroles a returning LPR into the country. 

Under § 1182(d)(5), the “Attorney General may . . . in his

discretion parole into the United States temporarily under

such conditions as he may prescribe only on a case-by-case

basis for urgent humanitarian reasons or significant public

benefit any alien applying for admission to the United

States.” 8 U.S.C. § 1182(d)(5)(A).

In Valenzuela-Felix, a precedential opinion, the BIA

considered the question whether the government must prove

that an alien who is a returning LPR meets one of the

exceptions in § 1101(a)(13)(C) at the border before paroling

the alien into the United States. 26 I. & N. Dec. at 54. 

Valenzuela-Felix involved an LPR who had been federally

indicted on charges of bulk cash smuggling, which the BIA

held to be a crime involving moral turpitude. Id. at 53. A

warrant was issued for the LPR’s arrest. See id. at 54. The

LPR subsequently left the country and, when he attempted to

reenter, was paroled into the United States for prosecution

and then tried for and convicted of the cash smuggling

offense. Id. at 53. In subsequent removal proceedings, the

LPR was charged with grounds of inadmissibility. Id.

at 53–54. The IJ terminated the proceedings because the

government had failed to prove at the time the LPR sought to

reenter the United States that the LPR was an alien seeking

admission. Id. at 54.
VAZQUEZ ROMERO V. GARLAND 13

The BIA reversed. It first reaffirmed its prior ruling, see

Matter of Rivens, 25 I. & N. Dec. 623, 625 (BIA 2011), that

the government must prove by clear and convincing evidence

that a returning LPR meets one of the exceptions in

§ 1101(a)(13)(C)(v).4Id. Then, noting that Rivens did not

address “the time at which the determination must be made by

clear and convincing evidence,” id. at 54 (emphasis in

original), Valenzuela-Felix held that the government does not

have to carry this burden at the border. Id. at 65. As the BIA

explained, the government does not have to meet “a threshold

standard before it may parole a returning lawful permanent

resident into the United States for prosecution,” id. at 62, or

“possess all of the evidence pertinent to sustaining its burden

at the time the lawful permanent resident first seeks to come

back into the United States,” id. at 64. Rather, the

government must carry its burden of proof in subsequent

removal proceedings. Id. at 64. In other words, admissibility

is “authoritatively determined” not when “the alien first

presents himself at the port of entry” but rather when “the

application for admission is finally considered during the

proceedings before the Immigration Judge.” Id. at 56. Thus,

according to Valenzuela-Felix, the government may “treat[]

a returning [LPR] as an arriving alien” and parole the

returning LPR into the United States for prosecution “until an

ultimate determination is made by an Immigration Judge, in

any removal proceedings the DHS may initiate, whether one

or more of the [§ 1101(a)(13)(C)] criteria, in fact, pertain.” 

Id. at 57–58.

In reaching this conclusion,Valenzuela-Felix relied on the

longstanding principle that the BIA lacks authority “to

4 We adopted the clear and convincing evidence standard in

Gonzaga-Ortega, 736 F.3d at 802.
14 VAZQUEZ ROMERO V. GARLAND

oversee and regulate the DHS’s exercise of its law

enforcement duties and prerogatives at the ports of entry.” Id.

at 62. At ports of entry, the parole power belongs to

immigration authorities, not the BIA. See id. at 63. The BIA

could “discern no indication that when Congress enacted

[§ 1101(a)(13)(C)], it intended to alter the well-established

restrictions on [the BIA’s] ability to intrude into parole

determinations.” Id. at 63.

Valenzuela-Felix also explained that the ThirdCircuit was

mistaken when it took a contrary approach in Doe v. Attorney

General of the United States, 659 F.3d 266 (3rd Cir. 2011). 

Id. at 61–62. Doe held, in the course of upholding a removal

order for an LPR paroled into the United States, that the

government cannot parole a returning LPR into the United

States unless there is probable cause to believe that the alien

has committed an offense enumerated in § 1182(a)(2). 

659 F.3d at 272. Valenzuela Felix disagreed with this

approach. It explained that requiring the government to prove

it had met a “threshold test for parole” within the context of

a removal proceeding was unprecedented and would “create

tension with principles” relating to the BIA’s authority to

review the government’s exercise of prosecutorial discretion. 

Valenzuela-Felix, 26 I. & N. Dec. at 62. The BIA also noted

that Doe was “based in part on an apparent misapprehension”

that treating a returning LPR as an applicant for admission

would strip the alien of LPR status. Id. at 61 n.9. The BIA

explained that contrary to Doe’s erroneous view, “treating a

returning lawful permanent resident as an applicant for

admission, paroling such an alien, or even convicting such an

alien of a crime identified in section [1182(a)(2)] does not

remove the alien’s status as a lawful permanent resident.” Id.

(citing Matter of Lok, 18 I. & N. Dec. at 101). An LPR’s

status remains unchanged until a final determination under
VAZQUEZ ROMERO V. GARLAND 15

§ 1101(a)(13)(C) is made in removal proceedings. See id. In

sum, the BIA held that there is “no need to create a two-stage

process whereby first probable cause, and later clear and

convincing evidence, of [an LPR’s] commission of a

turpitudinous crime must be demonstrated.” Id. at 62 n.10.5

B

“We apply the Chevron framework where, as here, there

is ‘binding agency precedent on point’ in the form of a

published BIA opinion.” Valenzuela Gallardo v. Lynch,

818 F.3d 808, 815 (9th Cir. 2016) (citation omitted). We

begin by determining, using traditional tools of statutory

construction, whether Congress has “directly spoken to the

precise question at issue.” Perez-Guzman v. Lynch, 835 F.3d

1066, 1073 (9th Cir. 2016) (citation omitted). If the statute is

silent or ambiguous with respect to that specific issue, then

“we may consider the responsible agency’s interpretation of

the statutory scheme.” Id. If the agency’s interpretation is

reasonable, “Chevron requires a federal court to accept the

agency’s construction of the statute, even if the agency’s

reading differs from what the court believes is the best

statutory interpretation.” Id. (quoting Brand X, 545 U.S.

at 980). In considering whether an agency interpretation is

reasonable, we may look at the statutory language in context,

as well as to decisions by other circuits. See

5 The Third Circuit adopted the “probable cause” standard before

Matter of Rivens determined that the government must prove by clear and

convincing evidence that a returning LPR is an alien seeking an admission

under § 1101(a)(13)(C). The Third Circuit’s adoption of the probablecause standard was therefore superseded by Rivens and Valenzuela-Felix. 

See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 980 (2005)).
16 VAZQUEZ ROMERO V. GARLAND

Garfias-Rodriguez v. Holder, 702 F.3d 504, 513–14 (9th Cir.

2012).

Here, the precise question at issue is 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 into the

United States), before it can parole the returning LPR into the

United States under § 1182(d)(5) (albeit with LPR status

intact). We first conclude that Congress has not spoken to

this issue. Section 1182(d)(5) states that the parole decision

with regard to aliens seeking admission is at the

government’s discretion, but does not address when the

alien’s admissibility should be decided. See 8 U.S.C.

§ 1182(d)(5)(A). Nor does § 1101(a)(13)(C) address when

the government must prove that an LPR qualifies as an alien

seeking an admission. “Chevron’s premise is that it is for

agencies, not courts, to fill statutory gaps.” Brand X,

545 U.S. at 982. Thus, we turn to whether the BIA

permissibly filled this statutory gap in Valenzuela-Felix.

Reading § 1182(d)(5) and § 1101(a)(13)(C) together, we

conclude that the BIA could reasonably interpret the statutes

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. We rely on the language of

both § 1182(d)(5)(A) and § 1101(a)(13)(C). Section

1182(d)(5)(A) gives the government broad parole discretion,

without mentioning any threshold standard that the

government must meet or the timing of when a decision as to

admissibility must be made. See 8 U.S.C. § 1182(d)(5)(A). 

Section 1101(a)(13)(C), in turn, provides limitations on the

scope of the Attorney General’s discretion, but also does not

set any time when a decision must be made.
VAZQUEZ ROMERO V. GARLAND 17

Given that the government must prove by clear and

convincing evidence that a returning LPR is seeking an

admission into the United States under § 1101(a)(13)(C), it

would be impractical and inefficient to require it to meet this

burden at the border. Cf. Munoz v. Holder, 755 F.3d 366, 372

(5th Cir. 2014). As the BIA noted, at the border the

government “is rightly devoting its resources to carrying out

its law enforcement responsibilities involving control of the

flow of aliens into this country, rather than to ensuring that it

already has enough evidence to sustain its ultimate burden of

proof.” Valenzuela Felix, 26 I. & N. Dec. at 64. We have

previously acknowledged that immigration officers must

make quick judgments at the border, including whether a

returning LPR should be treated as an applicant for

admission. Gonzaga-Ortega, 736 F.3d at 802.

The answer to the question whether a returning LPR

meets one of the six exceptions in 8 U.S.C. § 1101(a)(13)(C)

may not be self-evident, because the pertinent facts may not

be practically ascertainable. Section 1101(a)(13)(C)(v)

applies when an LPR at the border “has committed an

offense identified in section 1182(a)(2).” 8 U.S.C.

§ 1101(a)(13)(C)(v). Where the LPR has not yet been

convicted and has not admitted to committing such an

offense, the answer to the relevant question will most often be

resolved in a prosecution that has not yet taken place. The

text of § 1101(a)(13)(C)(v) therefore does not preclude a

delayed determination of whether a returning LPR meets the

statutory exception.

Where immigration officers are not able to carry their

burden of proof at the border, exercise of their discretion

under the parole statute may be a sensible solution. Given

Congress’s grant of discretion to the government in
18 VAZQUEZ ROMERO V. GARLAND

§ 1182(d)(5), the government may exercise its parole

authority to permit an admissibility determination to be made

after a criminal prosecution. See Valenzuela-Felix, 26 I. & N.

Dec. at 64. Second-guessing whether the immigration

authorities properly paroled a returning LPR into the country

would entail not only scrutinizing immigration authorities’

evidence at the border but also interfering with the

government’s exercise of its parole discretion. Id. at 62–63.

The BIA’s interpretation of § 1182(d)(5) is consistent

with Congress’s expressed intent in other portions of the INA. 

Specifically, in the same subchapter containing § 1182(d)(5),

Congress expressed its intent to shield the Attorney General’s

discretionary decisions from judicial review. See 8 U.S.C.

§ 1252(a)(2)(B). Most pertinent here, 8 U.S.C.

§ 1252(a)(2)(B)(ii) provides that with certain exceptions, “no

court shall have jurisdiction to review” any “decision or

action of the Attorney General . . . the authority for which is

specified under this subchapter to be in the discretion of the

Attorney General.” We have previously concluded that the

jurisdiction-stripping provision of § 1252(a)(2)(B)(ii) applies

to discretionary parole decisions under § 1182(d)(5). See

Hasan v. Chertoff, 593 F.3d 785, 790 (9th Cir. 2010). 

Accordingly, the BIA’s conclusion that it lacked authority to

review the government’s discretionary decision to parole a

returning LPR into the United States in this case is consistent

with congressional intent.

Finally, in determining whether an agency’s interpretation

is reasonable, we may consider the views of our sister

circuits. See Garfias-Rodriguez, 702 F.3d at 513. 

Valenzuela-Felix’s approach has already been adopted by the

Fifth Circuit. See Munoz, 755 F.3d at 372. In Munoz, an

LPR committed assault and aggravated assault with a deadly
VAZQUEZ ROMERO V. GARLAND 19

weapon, traveled to Mexico for surgery, and then returned to

the United States. Id. at 368. When the LPR tried to reenter

the United States, the CBP determined that the LPR had an

outstanding warrant for the assault charges. Id. The CBP

arrested the LPR at the border and paroled her into the United

States, where she subsequently pleaded guilty to one of the

charges. Id. at 368. The government later issued a notice to

appear charging the LPR as an alien applying for admission

who had been convicted of a crime involving moral turpitude. 

Id. The LPR argued, among other things, that the CBP had to

prove by clear and convincing evidence at the border that she

was an applicant for admission when she sought to reenter the

country from Mexico. Id. at 369. The Fifth Circuit rejected

this argument and held that the government could meet its

burden in subsequent removal proceedings. Id. at 370. The

Fifth Circuit reasoned that the “border patrol must make

quick judgments on the spot” and that 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.” Id. at 371.

We therefore conclude that Valenzuela-Felix offered

a permissible interpretation of § 1182(d)(5) and

§ 1101(a)(13)(C)(v), read together. See Garfias-Rodriguez,

702 F.3d at 514. Deferring to that interpretation, we hold that

the government may parole a returning LPR into the United

States for prosecution under § 1182(d)(5) without proving at

the border that the LPR falls within an exception under

§ 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
20 VAZQUEZ ROMERO V. GARLAND

LPR was seeking an admission into the United States under

§ 1101(a)(13)(C).

Vazquez Romero argues that we should not defer to the

BIA’s interpretation, because it deprives LPRs of due process

at the border. We reject this argument. Due process is

violated when there is a “deprivation of a constitutionally

protected liberty or property interest and denial of adequate

procedural protection.” Krainski v. Nevada ex rel. Bd. of

Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th

Cir. 2010). Congress has not mandated any procedure at the

border for determining the applicability of the exceptions

under § 1101(a)(13)(C), but has given the Attorney General

discretion to exercise broad parole authority under

§ 1182(d)(5). Therefore, because the parole of aliens into the

United States does not affect the aliens’ immigration status,

aliens are not deprived of any right to have their status

determined at the border. Although the Supreme Court has

held that LPRs are “entitled to a fair hearing when threatened

with deportation,” Landon v. Plasencia, 459 U.S. 21, 32

(1982), it has not held they are entitled to a hearing at the

moment they seek to enter the country.6 Moreover, a

returning LPR who is paroled into the United States receives

full procedural protections before a final determination under

§ 1101(a)(13)(C) is made in subsequent removal proceedings. 

At an LPR’s removal proceeding, the government must carry

its burden of proving by clear and convincing evidence that

the LPR is an alien seeking admission who is therefore

subject to a charge of inadmissibility. If the government

6 Agency regulations also do not grant an alien the right to have an

admission determination made at the border; to the contrary, they

expressly permit delay of the decision through “deferred inspection.” See

8 C.F.R. § 1235.2.
VAZQUEZ ROMERO V. GARLAND 21

cannot carry its burden, then it will have to prove grounds of

deportability. An LPR does not lose any rights at subsequent

removal proceedings by being paroled into the United States

rather than being treated as a returning LPR at the border.

Vazquez Romero also argues that the BIA’s interpretation

of § 1182(d)(5) is inconsistent with Vartelas. Again, we

disagree. Vartelas involved an LPR who pleaded guilty to a

felony crime involving moral turpitude in 1994 (two years

before § 1101(a)(13)(C) was enacted) and then traveled

abroad for one week in 2003 (seven years after

§ 1101(a)(13)(C) was enacted). 566 U.S. at 260. When the

LPR sought reentry into the United States, immigration

authorities became aware of his conviction for a crime

involving moral turpitude, treated him as an inadmissible

alien, and placed him in removal proceedings. Id. The

Supreme Court addressed a narrow question: “As to a lawful

permanent resident convicted of a crime before the effective

date of IIRIRA, which regime governs, the one in force at the

time of the conviction, or IIRIRA?” Id. at 261. The Court

held that because IIRIRA “attached a new disability (denial

of reentry) in respect to past events ([the alien’s] pre-IIRIRA

offense, plea, and conviction),” the “deeply rooted

presumption against retroactive legislation” led to the

conclusion that § 1101(a)(13)(C) cannot be applied to

criminal convictions that occurred before IIRIRA was

enacted. Id. at 261.

In reaching this conclusion, Vartelas rejected the Second

Circuit’s view that IIRIRA could be applied to the alien

retroactively because he “had not relied on the prior legal

regime at the time he committed the disqualifying crime.” Id.

at 265. The Second Circuit reasoned that while the alien may

have relied on pre-IIRIRA immigration law when he pleaded
22 VAZQUEZ ROMERO V. GARLAND

guilty to a disqualifying offense, the alien cannot reasonably

argue he relied on immigration law when he committed the

offense, and § 1101(a)(13)(C)(v) provides that an alien is not

treated as a returning LPR at the border if the alien has

“committed an offense” identified in § 1182(a)(2). Id. at 272

(citing 8 U.S.C. § 1101(a)(13)(C)(v)) (emphasis added).

The Supreme Court rejected this analysis. It held that it

was not necessary for the alien to prove reliance in order to

invoke “the antiretroactivity principle,” and “[i]n any event,”

the alien “likely relied on then-existing immigration law.” Id.

at 273–75. The Court reasoned that there is no “practical

difference, so far as retroactivity is concerned” between

committing an offense and being convicted of the offense. Id.

at 275 (emphasis added). Rather, an LPR who committed an

offense pre-IIRIRA would likely rely on the pre-IIRIRA right

“to make trips of short duration” without “seeking an

official’s permission.” Id. at 274. Moreover, in many cases

the government will determine that the alien “committed an

offense” for purposes of § 1101(a)(13)(C) by “check[ing] the

alien’s records for a conviction” at the border. Id. at 275. 

Therefore, for purposes of the Court’s retroactivity analysis,

an alien’s reliance on pre-IIRIRA law for purposes of

traveling abroad is substantially identical whether the alien

committed or was convicted of an offense. Vartelas noted, in

dicta, that “[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. at 275 n.11.7

7 The Court’s circumspect wording effectively acknowledges that

the statutory language is ambiguous and susceptible to different

interpretations. An alternative fair reading is that the reference to
VAZQUEZ ROMERO V. GARLAND 23

Contrary to Vazquez-Romero’s argument, this dicta does not

conflict with Valenzuela-Felix’s determination regarding the

timing of the government’s obligation to prove that a

returning LPR meets the exception set forth in

§ 1101(a)(13)(C)(v).

C

We next consider the BIA’s determination that, at

subsequent removal proceedings, the governmentmay rely on

a conviction obtained after a returning LPR is paroled into the

United States but before the LPR is placed in removal

proceedings. Valenzuela Felix, 26 I. & N. Dec. at 59–60.

Faced with the same question in Munoz, the Fifth Circuit

held that the government properly relied on a subsequent

conviction because, like Vazquez Romero, the LPR there

“had already committed the act when she applied for reentry.” 

755 F.3d at 370. Like Valenzuela-Felix, Munoz found that

this rule “makes good practical sense.” Id. at 371. We agree. 

We therefore defer to the BIA and join the Fifth Circuit in

holding that, to meet its burden of proving that a returning

LPR is seeking an admission into the United States under

§ 1101(a)(13)(C), 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. See Munoz,

755 F.3d at 372; cf. Ali v. Reno, 22 F.3d 442, 448 n.3 (2d Cir.

1994); Palmer v. INS, 4 F.3d 482, 485 n.11 (7th Cir. 1993).

§ 1182(a)(2) incorporates the statute’s classification of offenses, but not

its requirement that the alien has been convicted.
24 VAZQUEZ ROMERO V. GARLAND

IV

We now apply this framework to the facts of this case. 

When Vazquez Romero arrived at LAX, the CBP exercised

its discretion to parole him into the United States for

prosecution. As we have explained, we do not second-guess

the CBP’s decision to do so. Vazquez Romero then pleaded

guilty to a crime involving moral turpitude. At subsequent

removal proceedings, the government properly relied on

Vazquez Romero’s conviction to carry its burden of proving

by clear and convincing evidence that Vazquez Romero could

be regarded as an alien seeking an admission into the United

States, pursuant to § 1101(a)(13)(C)(v).8 Vazquez Romero

was therefore properly subjected to a charge of

inadmissibility.

PETITION DENIED.

8 Vazquez Romero also argues that (1) petty theft under California

Penal Code § 484 is not a crime involving moral turpitude and (2) the IJ

denied him due process by denying his counsel’s motion to withdraw. 

Those arguments were not raised before the BIA, and thus we lack

jurisdiction to review them. Barron v. Ashcroft, 358 F.3d 674, 678 (9th

Cir. 2004).