FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

R O G E L I O V AZ Q UE Z R O M E RO , Petitioner
,

v

.

M E R R I C K B. G AR

L A ND , Attorney General, Respondent. No. 15-72947

Agency No. A091-783-214

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals

Argued and Subm itted May 22, 2020 San Francisco, California

Filed May 28, 2021

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

Opinion by Judge Ikuta

* The Honorable Ivan L.R. Lem elle, U nited States District Judge f o r the Eastern District of Louisiana, sitting by designation.V AZ Q UE Z R O ME RO V

. G A R L A ND 2

SUMMARY * *

Immigration

Denying Rogelio Vazquez Rom ero’s petition for review of a decision of the Board of Imm igration Appeals, the panel held tha t t h e governm ent m ay parole a returning lawful
perma n e n t resident (LPR) into the United States for
p rosecution without proving at the border that the LPR wa s seeking an adm ission under 8 U.S.C. § 1101(a)(13)(C), when such a determ ination depends o n f acts that are n ot practically ascertainable at the bor d er ; but at subsequent rem oval proceedings, the governm ent m ust p r o ve by clear and convincing evidence that the returning LPR falls within o ne of the exceptions under § 1101(a)(13)(C).

An alien attem

pting to reenter the Un it ed States is generally deem ed to be seeking an adm ission a n d is thus subject to cha r g e s of inadm issibility. However, under § 1101(a)(13)(C), a returning LPR shall not be regarded as seeking an adm ission unless o n e o f six exceptions applies. One such exception applies if the LPR h as comm itted a crim e involving m oral turpitude.

Vazquez Rom ero, an LPR, traveled to Me x ico in 2018. Upon his return, Custom s and B o rder Protection (CBP) discovered that he h a d an o utstanding warrant that was possibly for a crim e involving m oral 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 summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.V AZ Q UE Z R O ME RO V

. G A R L A ND 3

the discretion to parole into the U nite d States any alien applying for adm ission, and a grant of p arole does not affect the alien’s im m igration status.

After Vazquez Rom ero pleaded guilty to petty theft, t he
governm ent comm enced rem oval proceedings, charging him with inadm issibility based o n a crim e involving m oral turpitude. Vazquez Rom ero m oved to term inate proceedings, arguing that he should n ot h ave been charged as an inadm issible alien. The BIA rejected this contention, relying

on its published decision in Matter of Valenzuela-Felix
, 26 I. & N. Dec. 53 (BIA 2012), whic h held that, when the
governm ent p aroles a re turning 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 adm ission, but m ay ordinarily rely on the results of a subsequ e n t prosecution to m eet that b urden in later rem oval proceedings.

The panel explained tha t t h e q uestion at issue was whether the governm ent m ust carry its burden of proving that

a returning LPR m eets an exception under § 1101(a)(13)(C) (and therefore m ay be regarded as seeking an adm ission), before it can parole the returning LPR into the United States under § 1182(d)(5) (albeit with LPR status intact). Applying the Chevron fram ework, the panel first concluded that Congress has not spoken to this issue.

The p anel next concluded that the BIA reasonably interpreted § 1182(d)(5) and § 1 101(a)(13)(C) as allowing the
governm ent to exe r cise its discretion to parole a returning LPR into the United States for p rosecution b efore satisfying its burden o f proof. G iven that the governm ent m ust p rove by clear and convincing evidence that a returning LPR is seeking

an adm ission, the panel explained it would be im practical andV AZ Q UE Z R O ME RO V

. G A R L A ND 4

inefficient to require it to m eet t hi s b urden at the border. M o r e o v e r , t h e p a n e l e x p l a i n e d t h a t t h e t e x t o f § 1101(a)(13)(C) does not preclude a d elayed determ ination of whether a returning LPR m eets the except i on, and that second-guessing whether imm igration authorities p roperly paroled a returning LPR w ould in t e rfere with the
governm ent’s exercise of its parole discretion. The panel further explained that the BIA’s conclusi o n t hat it lacked authority to review the g ov ernm ent’s discretionary decision
to parole a returning L PR into the United States is consistent with congress ional intent to shield d iscretionary d ecisions from ju d icial review. Finally, the panel observed that the Fifth Circuit had already adopted the BIA’s interpretation.

The panel also deferred to the BIA and join e d t h e Fifth Circuit in holding that, to m e e t its burden of proving that a returning LPR is seeking an adm ission, the governm ent m ay rely on a conviction o btained after the LPR is paroled into the Un i ted States but before the LPR is placed in rem oval proceedings. The panel agreed with the Fifth Circuit that the rule m akes good practical sense.

Applying this f

ram ework here, the panel c o n cluded that the governm ent properly relied on Vazquez Rom ero’s conviction to carry its burden of proving by clear and convincing evidence that he coul d b e regarded as an alien seeking an ad mi ss i o n into the United States, pursuant to § 1101(a)(13)(C)(v), and that he was therefore properly subjected to a charge of inadm issibility.V AZ Q UE Z R O ME RO V

. G A R L A ND 5

C OUNSEL

Bria A. Colem an (argued) and Emma D. McBride (argued), Certified Law Students; Kari E. Hong (argue d )
, Associate Professor; B oston C o lleg e La w School, Ninth Circuit Ap p ellate P ro

ject, N ew to n , Massach

u setts; J u l i a n a G a r c i a an d Raul Gom ez, Gom ez & Associates, Los Angeles, C alifornia; for Petitioner.

Robert D

. Tennyson (argued), Trial A ttorney; Jesse M. Bless and Jeffrey R. Le ist, Senior Litigation Counsel; Anthony C. Payne, Assistant Director; Office of Imm igration L itigation, Civil Division, United States D epartm ent of J us t i ce, W ashington, D.C.; for Respondent.

OPINION

IKUTA, Circuit Judge:

The Imm igration and Naturalization Act (INA) p rovides that “[t]he Attorney General m ay

. . . in his discretion parole into the United States

. . . any alien applying for adm ission to the United States.” 8 U.S.C. § 1182(d)(5)(A). The INA also provides that a lawful perm anent resident (LPR) is not considered to be “seeking an adm ission into the United States” unless one of six ex c e pt i ons applies. Id. § 1101(a)(13)(C). One exception is for an LPR who has

comm itted a crim e i nvolving m oral 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 adm ission into the United States if he has comm itted a crim e involving

m oral turpitude.V AZ Q UE Z R O ME RO V

. G A R L A ND 6

This case raises the q uestion whether the g o v e rnm ent

m ust carry its burden of proving that a returning LPR m eets

one of the six exceptions under § 1101(a)(13)(C) be fo re it paroles that L PR into the U nited S tates under § 1182(d) ( 5 ). Deferring to a precedential opinion issued by t h e Bo a r d o f Imm igration Appeals (BIA), see Matter of Valenzuela-Felix
, 26 I. & N

. Dec. 53 (BIA 2012), we hold that the governm ent

m ay exercise its discretion to parole a returning LPR into the United States f

or prosecution without carrying its b urden o f
pro v in g t hat the LPR falls w ithin one o f the six exceptions. The governm ent m

ust, however, carry its burden of proof in subsequent rem oval proceedings if any ensue.

I

W e begin w ith som e background. Aliens who have been lawfully a d m i tted to the country generally receive m ore protection under imm igration law than aliens who are seeking adm ission to the United States. 1 In rem oval proceedings, for instance, an alien who i s a n applicant for adm ission has the burden of pro v i n g t h at he “is clearly and beyond doubt entitled to be adm itted and is n ot inadm issible” under § 1182. 8 U.S.C. § 1 229a(c)(2)(A). But if the alien has already been lawfully adm itted to the United States, the burden shifts to the
g ov er n m ent, which m

ust establish b y clear and convincing evide n c e t h a t t h e a l i e n i s de p o r t ab l e

. S e e id. § 1229a(c)(3)(A); Gonzaga-Ortega v. Holder
, 736 F.3d 795, 802 & n.2 (9th Cir. 2 013). Although the rem oval procedure is the sam e, “the list o f crim inal o f fenses that subj e c t aliens
to exclusion rem ains separate from the list of o ffenses that render an alien deportable.” Vartelas v. Holder
, 566 U. S.

1 For purposes of the INA, “ [t]he term ‘alien’ m eans any person not a citizen or national of the United States.” 8 U.S.C. § 1101(a)(3).V AZ Q UE Z R O ME RO V

. G A R L A ND 7

257, 263 n.3 (2012). For instanc e , “ a l though a single crim e involving m oral turpitude m ay render an alien inadm issible, it would not render her deportable.” Id. (first citing 8 U.S.C. § 1 1 82(a)(2), which lists excludable crim es; then citing 8 U.S.C. § 1227(a)(2), which lists deportable crim es).

An alien who has traveled abroad and seeks to reenter the country upo n r e turn is generally deem ed to be seeking an admi ssion into the United States, and therefore is subject to

a charge o f being inadm issible. There is an exc e p tion, ho we v e r , when the returning alien is an LPR. Imm igration law provides that “[a]n alien lawfully adm itted for perm anent residence in the United S tates shall not be regarded as seeking

an adm ission into the United Stat e s fo r purposes of the imm igration laws unless” one of six excepti o ns applies. 8 U.S.C. § 1 101(a)(13)(C). 2 One such exception applies if the

2 8 U.S.C. § 1101(a)(13)(C) provides:

(C) An alien lawfully adm itted f or perm anent residence in the United States shall not be regarded as seeking an adm i ssion into t

he United S tate s fo r purposes of the im m igration laws unless the alien—

(i) has abandoned or relinquished that status,

(i i ) h as been absent from the United States fo r a continuous period in excess of 180 days,

(iii) has engaged in i llegal activity afte r having departed the United States,

(i v ) has departed from t

he United States while unde r legal p rocess seeking rem oval o f t he alien f rom the United States, i n cl u d i n g r em o v al p r o ceedi n g s un d er t h is chapter and extradition proceedings,V AZ Q UE Z R O ME RO V

. G A R L A ND 8

retu r n in g L P R “h as comm itted an offense identified in sectio n 1182(a)( 2 ).” Id

. § 1 101(a)(13)(C)(v). One of the offenses

enum erated in § 1182(a)(2) is a crim e involving m oral
turp i tud e

. Id. § 1182(a)(2)(A)(i)(I). Thus, an LPR who has

comm itted a crim e involving m oral turpitude for purposes o f § 1182(a)(2)(A)(i)(I), and seeks to reenter t h e c ountry, is “regarded as seeking an adm ission into the United States for purposes of the im m igration laws.” Id. § 1101(a)(13)(C).

Imm igration authorities at ports of entry have historically exercised the authority to parole aliens into the United States for various lim ited purposes, including for prosecution. See,
e.g. , Kaplan v. Tod
, 2 67 U.S. 228, 229 (1925); Ekiu v. United States
, 142 U.S. 651, 6 61 (1892). For exam ple, parole is “a device through which needless confinem ent is avoided while adm inistrative proceedings are conducted.” Leng May Ma v. Barber
, 3 57 U.S. 185, 190 (1958). The gover n ment’s historical parole authority has been codified in § 1182(d)(5), which gives the Attorney General the discretion to parole into the United States “ a ny alien applying for adm ission to the United States.” 3 8 U.S.C. § 1182(d)(5)(A).

(v) has comm itted an o ffe n se identified in section 1182(a)(2) of this title, unless since such offen s e the alien has been g ra nted relief under section 1182(h) o r 1229b(a) of this title, or

(vi) is attem

pting to enter at a tim e or place other than

as designated by i m

m i gration officers o r h a s not b een adm i tted t o t he United States after inspection and authorization by an im m igration officer.

3 The entire provision provides:

The Attorn e y G e neral m ay, except as provided in subparagraph (B) or in section 1184(f) of t his title, inV AZ Q UE Z R O ME RO V

. G A R L A ND 9

The p a ro le of an alien into the United States does not affect the alien’s imm igration status. See Shaughnes s y v. United States ex rel. Mezei
, 3 4 5 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 rem oval

are treated for due process purposes as if stoppe d at the border.” Dep’t of

Homeland S

ec. v. Thuraissigiam
, 140 S. Ct. 1959, 1982 ( 2 0 2 0) (citation om itted) (cleaned up). This

m eans that LPRs paroled in t o t h e United States retain their i mmigration status until “entry of a final adm inistrative order” of rem oval. 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 Rom ero is a native an d citizen of Mexico w ho

was granted LPR status in 1990. Vazquez Rom ero h as been convicted of several crim es sinc e re c eiving LPR status. In 2004, he was convic te d
, u nder section 11350(a) of the California Health & Safety Code, o f possessing cocaine. He

his discretion parole into t he U nited States tem

porarily under s u c h c onditions as he m ay prescribe only on a case-by-case basis for urgent hum anitarian reasons o r significant public benefit any alie n applying f o r adm i ssion to the United States, but such parole of such alien shall not b e regarded as an adm ission o f the alien and when the purposes of suc h parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith r eturn or b e returned to the custody from which he w as paroled and thereafter his case shall continue to b e dealt with in the sam e m anner as that o f
any other applicant for adm ission to the United S tates.

8 U.S.C § 1182(d)(5)(A).V AZ Q UE Z R O ME RO V

. G A R L A ND 10

was sentenced to m ore than one year of i n c arceration. In 2005, he was convicted of petty theft under section 484 of the California Penal Code, and was subject to enhanced penalties

res erved for repeat theft offenders under section 666 of the California Penal Code. Later that year, he was convicted of second-degree burglary in violation o f section 460(b) of the California Penal Code.

In August 2008, Vazquez Rom ero was charged a second tim e for petty theft under section 484 of the California Penal Co de. His arraignm ent was scheduled for August 22, 2008. When he fa i l ed to appear, the sheriff’s departm ent issued a warrant for his arrest.

While the warrant was outstanding, Vazquez R om ero traveled to M e x i c o

. On Decem ber 3, 2008, he flew back to the United Sta t e s a n d landed at Los Angeles International Airport (LAX), where he presented h im self for inspection to

an agent from the U.S. Cu s tom s and Border Protection (CBP). The CBP dir ected him to secondary inspection, where it discovered hi s o utstanding warrant. Because the
warrant w as p o ssibly for a crim e involving m oral turpitude under 8 U.S.C. § 118 2(a)(2)(A)(i)(I), the CBP paroled Va z qu ez Rom ero into the country and handed him over to California authorities for prosecution.

Vazquez Rom ero later pleaded guilty to comm itting petty theft in v iolation of section 484 o f the California Penal Code. He w as sentenced to a t h r e e-year term of probation conditioned upon his serving 365 days in county jail.

While Vazquez Rom ero was serving his jail sentence, the
governm ent comm enced rem oval proceedings. The
govern me nt alleged that Vazquez Rom ero was seeking anV AZ Q UE Z R O ME RO V

. G A R L A ND 11

adm ission into the United States when h e returned from h is trip to Mexico because he h ad comm itted a c ri me involving

m oral turpitude under § 1182(a) ( 2) (A)(i)(I). Vazquez R o m ero m o v ed to term in ate th e rem o v al proceedings, argu in g that he should not have been charged as an inadm issible alien. Th e I J denied Vazquez Rom ero’s m otion to term inate. Th e BIA d ism issed Vazquez Rom ero’s appeal, holding that under Valenzuela-Felix
, 26 I. & N. D ec. at 53, when the
g ov er nm ent paroles a returning LPR into the United Stat e s for prosecution, it “need not have all the evidence to sustain its burden o f proving that th e al i e n is an applicant for adm ission, but m ay ordinarily rely on the results o f a subsequent prosecution to m eet that burden in later rem oval proceedings.”

On appeal, Vazquez Rom ero argues that because he was

a returning LPR, t he governm ent could not p arole him into the country rather than allowing him to ent e r t h e country as

a returning LPR unless it first m et its burden of proving that h e w a s “ a n a l i e n s e e k i n g a n a d mi s s i o n ” u n d e r § 1101(a)(13)(C). To carry that burden, Vazquez Ro me ro argues, the governm ent h a d t o prove that he had comm itted

a crim e involving m oral turpitude for purpose s of § 1182(a)(2)(A)(i)(1). Because the only evidence ava ilable
at the border was his outstanding w arrant, which, according
to Vazqu e z Ro m ero, was insufficient to prove that he h ad

comm itted a crim e involving m oral tu rp itu d e , th e g o v ernm ent shou l d h ave treated him as a returning LPR subject to grounds of deportability rather than inadm issibility.

III

W e have jurisdiction to review the BIA’s final order o f

rem oval under 8 U.S.C. § 1252(a)(1). W e review qu e s ti onsV AZ Q UE Z R O ME RO V

. G A R L A ND 12

of law and constitutional claim s de novo. S e e Negrete-Ramirez v. Holder
, 741 F .3d 1047, 1050 (9th Cir. 2014); Liu v. Holder , 640 F.3d 918, 930 (9th Cir. 2011).

A

W e begin b y considering the governm ent’s obligation at the border when it paroles a returning LPR into the country. Under § 1182(d)(5), the “Attorney G ener a l m ay

. . . in his discretion parole into the U nited Sta t e s tem porarily under such conditions as he m ay prescribe only on a case-by-case basis for urgent hum anitarian reasons or significant public benefit a n y alien applying for adm ission to the United States.” 8 U.S.C. § 1182(d)(5)(A).

In Valenzuela-Felix
, a precedential opinion, the B IA considered the question w hether the governm ent m ust prove that an alien who is a returning LPR me e t s o ne of the exceptions in § 1101(a)(13)(C) at the b order before paroling the alien into the Un i t e d States. 26 I. & N

. Dec. at 54. Valenzuela-Felix involved an LPR who had been fe d e r ally indicted on charges of b u l k cash sm uggling, which the B IA h eld to be a crim e involving m oral turpitude. Id. at 53

. A
warrant was issued for the L P R’s arre s t

. S e e i d

. at 54. The LPR subsequently left the country and, w hen h e attem p ted to reenter, was paroled into the U nited Stat e s for prosecution and then tried for and convicted of the cas h s m uggling offe n s e

. Id. at 53. In subsequent rem oval proceedings, the LPR was charged with grounds o f inadm issibility. Id.
at 53–54. The IJ term inated th e p r o c e edings because the
governm ent had failed to prove at the tim e the LPR sought to reenter the United States that the LPR was an alien seeking adm ission. Id. at 54.V AZ Q UE Z R O ME RO V

. G A R L A ND 13

The BIA reversed. It first reaffirm ed its prior ruling, see Matter of Rivens , 25 I. & N. Dec. 623, 625 (BIA 2011), that the governm ent m

ust prove by clear and convincing evidence that a return in g L PR m eets one of the exceptions in § 110 1 ( a ) (13)(C)(v). 4 Id. Then, n o ting that Rivens did not address “the time at w hich the determ ination m ust be m ade by clear and convincing evidence,” i d

. a t 54 (em

phasis in original), Valenzuela-Felix held that the governm ent does not have to carry this burden at the border. Id. at 65. As the B IA explained, the governm ent d oes not have to m eet “a threshold standard before it m ay p arole a retu rning lawful perm anent resident into the United States for prosecution,” id. at 62, o r “possess all of the evidence pertinent to sustaining its burden
at the tim e the lawful perm anent resident first seeks to com e back into the United States,” id. a t 64. Rather, the
g ov ernm ent m

ust carry its burden of proof in subseque n t

rem oval proceedings. Id. at 64. In other words, adm issibility is “authoritativ e l y determ ined” not w hen “the alien first presents him self at the p o rt of entry” but rather when “the application for a d mi ssion is finally considered d uring the proceedings before the Imm igration Judge.” Id. at 56. Thus, according to Valenzuela-Felix
, the governm ent m ay “treat[]

a returning [LPR] as an arriving alien” a nd parole the returning LPR into the U nited States for prosecution “until an ultim ate determ ination is m ade b y an Imm igration Judge, in
any rem oval p roceedings the DHS m ay initiate, whether o ne

or m ore of the [§ 1101(a)(13)(C)] criteria, i n fact, pertain.” Id. at 57–58.

In reach in g this co n clu sio n , V a lenz u ela -F

elix relied o n th e longstanding principle that the BIA la c k s authority “to

4 W e adopted t h e clear and convincing evidence standard in Gonzaga-Ortega , 736 F.3d at 802.V AZ Q UE Z R O ME RO V

. G A R L A ND 14

oversee and regulate the DHS’s ex e rcise of its law enforcem ent duties and prerogatives at the ports of entry.” Id.
at 62. At ports o f entry, the pa ro l e power belongs to imm igration authorities, not the BIA. See id. at 63. The B IA

c o u l d “discern no indication that when Congress enact e d [§ 1101(a)(13)(C)], it intended to alter the we l l-established restrictions on [the BIA’s] ability to intrude into parole determ inations.” Id. at 63.

V a lenzu ela -F

e lix also exp lained that th e T h i rd C ircu it w a s

m istaken when it took a contrary approach in Doe v. A ttorney General of the United States
, 659 F.3d 266 (3rd Cir. 2011). Id. at 61–62. Doe held, in the course of upholding a rem oval order fo r an LPR paroled into the United States, that the
g ov ernm ent cannot parole a returning LPR into the Uni t e d States unless there is probable cause to believe that the alien has comm itted an o f

fense enumerated in § 1182(a)(2). 659 F.3d at 272. Valenzu ela Felix d isagreed with this
ap p roach. It explained that requiring the governm ent to prove it had m et a “threshold test for parole” within the context o f

a rem o val proceeding was unprecedented and w ould “create tensio n with principles” relating to the BIA’s authority to review the governm ent’s exercise of p rosecutorial d iscretion. Valenzuela-Felix
, 26 I. & N

. Dec. at 62. The BIA also noted that Doe was “based in part on an apparent m isapprehension” that treating a returning LPR as an appli c ant for adm ission

wo u l d strip the alien of L PR status. Id. at 61 n.9. Th e BI A explained that contrary to D oe ’s erroneous view, “treating a returning lawful p e rm anent resident as an applicant for adm ission, paroling such an alien, or even convicting such an alien of a crim e identified in se c tion [1182(a)(2)] does not

rem ove the alien’s status as a lawful perm anent resident.” Id. (citing Matter of Lok
, 18 I. & N. Dec. at 101)

. An LPR’s
status rem ains unchanged until a final determ in a t ion underV AZ Q UE Z R O ME RO V

. G A R L A ND 15

§ 1101(a)(13)(C) is m ade in rem o val proceedings. See id. In

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

irst probable cause, and l a ter clear and convincing evidence, of [a n LPR’s] comm ission of a turpitudinous crim e m

u st be dem onstrated.” Id. at 62 n.10. 5

B

“W e apply the Chevron fram ework w here, as here, there i s ‘binding agency p recedent on point’ in the fo rm o f a published BIA opinion.” Valenzuela Gallardo v. Lynch
, 818 F.3d 808, 815 (9th Cir. 2016) (citation om itted). W e begin b y d eterm ining, using tra d i t i onal tools of statutory construction, w hether Congres s ha s “directly spoken to the precise question at issue.” Perez-Guzman v. Lynch
, 8 35 F.3d 1066, 1073 (9th Cir. 2016) (citation om itted). If the statute is silent or am

bi g u o u s with respect to that specific issue, then “we m ay consider the responsible agency’s interpretation o f
t h e statutory schem e.” Id. If the agency’s interpretation is reasonable, “ C

hevr o n requires a federal court to accept the agency’s constru c t i o n of the statute, even if the agency’s reading differs from what the court bel i e ves is the best statutory i nt e r

p r etation.” Id. (quoting Brand X
, 545 U.S.
at 9 80). In considering whether an agency i n t er p retation is reasonable, we m ay look at the statutory language in context,

as we l l a s to decisions by other circuits. See

5 The Third Circuit adopted the “probable cause” standard before Matter of Rivens determ i ned that t

he g overnm ent m

ust prove by clear and convincing evidence that a r eturning LPR is an alien seeking an adm ission

un d e r § 1 1 01(a)(13)(C). The Third Circuit’s adoption of t he 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)).V AZ Q UE Z R O ME RO V

. G A R L A ND 16

Garfias-Rodriguez v. Holder
, 702 F.3d 504, 513–14 (9th Cir. 2012).

Here, the precise quest i on a t issue is whether the
governm ent m

ust carry its burden of proving that a returning LPR m eets an exception under § 11 0 1 (a)(13)(C) (and therefore m ay be regarded as seeking an admi s s ion into the United States), before it can parole the returning LPR into the United States und e r § 1182(d)(5) (albeit with LPR status intact). W e first c o nclude that Congress has not spoken to this issue. S ection 1182(d)(5) states that the parole decision with regard to aliens seeking adm ission is at the
governm en t’s discretion, but does not address when the alien’s adm issibility s ho u ld be decided. See 8 U.S.C. § 1182(d)(5)(A). Nor does § 1101(a)(13)(C) address wh e n the governm ent m

ust prove that an LPR qualifies as an alien seeking an adm ission. “ Chevron ’s pr e mi se i s that it is for agencies, not c ou r ts, to fill statutory gaps.” Brand X
, 545 U.S. at 982. Thus, we turn to whether the B IA
perm issibly 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 governm ent to exercise its discretion to parole

a returning LPR into the U nited States f or prosecution before satisfying its burden o f proof. W e rely on the language o f b o th § 1182(d)(5)(A) and § 1101(a)(13)(C). Secti o n 1182(d)(5)(A) gives the governm ent broad parole d iscretion, without m entioning any t h reshold standard that the
governm ent m

ust m eet or the tim ing of when a decision as to

a d missibility m

ust be m ade. See 8 U.S.C. § 1182(d)(5 )( A)

. Section 1101(a)(13)(C), i n turn, provides lim itations on the
scope of the Attorney G eneral’s discretion, but also does not set any tim e when a decision must be m ade.V AZ Q UE Z R O ME RO V

. G A R L A ND 17

Given that the governm ent m ust p r o ve by clear and convincing eviden c e that a returning LPR is seeking an ad m ission into the United States under § 1101(a)(13)(C), it would be im

practical and inefficient to require it to m eet this burden at the border. Cf. Munoz v. Holder
, 755 F.3d 366, 372 (5th Cir. 2014). As the BIA not e d, at the border the
governm ent “is rightly devoting its resources to carrying out its law enforcem e n t responsibilities involving control of the flow of aliens into this country, rather than to ensuring that it already has enough evidence to sustain its ultim ate burden o f proof.” Valenzuela F

elix
, 26 I. & N. De c

. at 64. W e have previously acknowledged that imm igration officers m ust

m ake quick judgm ents at t h e border, including w hether a returning LPR sho uld be treated as an applicant for adm ission. Gonzaga-Ortega
, 736 F.3d at 802.

The answer to t he question whether a returning LPR

m eets o ne of the six exceptions in 8 U .S.C. § 1101(a)(13)(C)

m ay not be self-evident, because the pertinent facts m ay not be practically ascertainabl e

. Section 1101(a)(13)(C)(v) applies w hen an LPR at the border “has comm itt e d a n offense identified in section 1182( a)(2).” 8 U.S.C. § 110 1 ( a)(13)(C)(v). Where the LPR has not yet been convicted and has not adm it t e d to comm itting such an offense, the answer to the relevant question will m ost often be resolved in a prosecuti o n t hat has not yet taken place. The
text of § 1101(a)(13)(C)(v) therefo re d oes not preclude a delayed determ ination of whether a returning LPR m eets the statutory exception.

Where imm igration officers are not able to ca rry t heir burde n o f proof at the border, exercise of their discretion

u n der the p arole statute m ay be a sensible solution. Give n Congress’s grant of discretion to the governm ent inV AZ Q UE Z R O ME RO V

. G A R L A ND 18

§ 1182(d)(5), the governm ent m ay exercise its parole authority to perm it an adm issibility d eterm ination to be m ade after a crim inal prosecution. See Valenzuela-Felix
, 2 6 I. & N

. Dec. at 64. Second-guessing whether the imm igration authorities properly p aroled a returning LPR into the country would entail not only scrutinizing imm igrat i o n authorities’ evidence at the b o r d e r but also interfering with the
governm ent’s exercise of its parole d iscretion. Id. at 62–63.

The BIA’s interpretat i on of § 1182(d)(5) is consistent with Congress’s expressed intent in other portions of the INA. Specifically, in the sam e 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 h a v e jurisdiction to review” any “decision o r action of the Attorney G eneral

. . . the authority for w hich is

s pe c i fied under this subchapter to b e in the discretion of the Attorney General.” We h a ve previously concluded that the jurisdiction-stripping provision of § 12 5 2 (a)(2)(B)(ii) applies
to discretion a ry p arole decisions under § 1182(d)(5). See Hasan v. Chertoff

, 5 93 F.3d 785, 790 (9th Cir. 2010). Accordingly, the BIA’s conclusion that it lacked authority to review the governm ent’s discretionary decision to parole a returning LPR into the United States in this case is consistent with congressional intent.

F in ally
, i n d etermin in g w h eth er an ag en cy ’s int erp retatio n is reasonable, we m ay consider t h e v i e ws o f o ur sister circuits. See Garfias-Rodriguez
, 7 0 2 F .3d at 513. Valenzuela-Felix ’s approach has already been adopted by the Fifth Circuit. See Munoz
, 755 F.3d at 372. I n M u no z , an LPR comm itted assault and aggravated assault w ith a deadlyV AZ Q UE Z R O ME RO V

. G A R L A ND 19

weapon, traveled to Mexico f or surgery, and then returned to the United S tates. Id. at 368. When the LPR tried to reenter the U nited States, the C BP determ ined that th e LPR had an outstanding warrant f

or the assault charges. Id. The CBP arrested the L PR at the b order and paroled her into the United States, where she subsequently pleaded guilty to one of the charges. Id. at 368. The governm ent later issued a notice to appear charging the LPR as an alien apply i n g for adm ission who h ad been convicted of a crim e involving m oral turpitude. Id. The LPR argued, am ong o ther things, that the CBP had to prove by clear and convincing evidence at the border that she

was an applicant for adm ission w hen she sought to reenter the country from Mexico. Id. at 3 69. The Fifth C ircuit rejected this arg u ment and held that the governm ent could m eet its burden in subsequent rem oval proceedings. Id. at 370. The Fifth Circuit reasoned that the “border patrol m ust m ake quick judgm ents on the spot” and that i t would be “im practicable to require the b order patrol a g ents to gather and consider all t he evidence and reach the sam e judgm ent that the imm igration judge m akes after m ore t h or ough consideration.” Id. at 371.

W e therefore conclude that Valenzuela-Felix offered

a p e r mi s s i b l e i n t e rp r e t a t i o n o f § 1 1 8 2 ( d ) ( 5 ) a n d § 1101(a)(13)(C)(v), read together. See Garfia s

- Rodriguez
, 702 F.3d at 514. Deferring to that interpretation, we h old that the governm ent m ay parole a return i n g L PR into the United States for prosecution under § 1182(d)(5) without proving at the border that th e LPR falls within an exception under § 1101(a)(13)(C), when such a de term ination depends on facts that are not practically ascertainable at the border. B ut at subsequent rem oval p roceedings, the governm ent m ust prove b y clear and convincing evidence that th e re turningV AZ Q UE Z R O ME RO V

. G A R L A ND 20

LPR was seeking an adm ission into the Un i t e d States under § 1101(a)(13)(C).

Vazquez Rom ero argues that we should not defer to t he BIA’s interpretation, because it deprives LPRs of due process

a t t h e border. W e reject this argum ent. D ue p rocess i s violated when there is a “deprivation of a constitutionally protected liberty o r property interest and denial of adequate procedural protection.” K rainski v. Ne v a d

a ex rel. Bd. of Regents o f Nev. Sys. o

f Higher Educ.
, 616 F.3d 963, 9 70 (9th Cir. 2 010). Congress has not m andated any procedure at the border f o r determ ining the applic ability of the exceptions under § 1101(a)(13)(C), but has g iven the Attorney General discretion to exe r c ise broad p arole authority under § 1182(d)(5). Therefore, because the parole of aliens into the United States d oes not affe c t t h e aliens’ imm igration status, aliens are not d e p r i ved of any right to have their status determ ined at th e b o r d er. Although the Suprem e Court has held that LPRs are “entitled to a fair h earing when threatened with deportation,” Landon v. Plasencia
, 459 U.S. 21, 32 (1982), it has not h e ld they are entitled to a hearing at the

m om ent they seek to enter t he country. 6 Moreover, a returning LPR who is paroled into the United States receives full procedural protections b efore a final determ ination under § 1 1 0 1 (a)(13)(C) is m ade in subsequent rem oval p ro ceed in g s. At an L PR’s rem oval proceeding, the governm ent m ust carry its burden of proving by clear and c o n v incing evidence that the LPR is an alien seeking adm ission who is therefore

s u bject to a charge of inadm issibility. If the governm en t

6 Agency regulations also do not grant an alien the right to have an adm i ssion determ ination m ade at t h e b o rder; to the contrary, they expressly perm it delay of the d ecision through “deferred inspection.” See 8 C.F.R. § 1235.2.V AZ Q UE Z R O ME RO V

. G A R L A ND 21

cannot carry its burden, then it will have to prove grounds o f deportability. An LPR d oes not lose any rights at subsequent

rem oval proceedings by b eing paroled into the United States rather than being treated as a returning LPR at the border.

V azq u ez R o m ero also argues that the BIA’s interpretatio n of § 1182(d)(5) is inconsistent with Vartelas

. Aga i n, we disagree. Vartelas involved an LPR who pleaded guilty to a felony crim e involving m oral turpitude in 1994 (two yea rs before § 1 101(a)(13)( C) was enacted) and then traveled abroad for one week in 2003 (seven years a fter § 1101(a)(13)(C) was enacted). 5 6 6 U.S. at 260. When the LPR sough t r e e ntry into the United States, imm igration authorities b ecam e awar e o f his conviction for a crim e involving m oral turpitude, treated h im as an inadm issible alien, and placed h im in rem oval proceedings. Id. The Suprem e Court addressed a narrow q uestion: “As to a lawful
perm anent resident convicted of a crim e before the effective date of IIRIRA, which regim e governs, the one in force at the tim e of the convic t i o n , or IIRIRA? ” Id. at 261. The Court held that be c ause IIRIRA “attached a new disability (denial of reentry) in respect to past events ([the alien’s] pre-IIRIRA offense, p lea, and conviction),” the “deeply ro oted
presum ption against ret r o a c tive legislation” led to the

con c l u s ion that § 1101(a)(13)(C) cannot be applied to crim inal convictions that o ccurred before IIRIRA was enacted. Id. at 261.

In reaching this conclusion, Vartelas rejected the S econd Circuit’s view that IIRIRA coul d b e ap plied to the alien retroactive l y b e ca use he “had not relied on the prior legal regim e at the tim e he comm itted the d isqualifying crim e.” Id.
at 265. T he Second Circuit reasoned that while the alien m ay have relied on pre-IIRIRA imm igration law when he pleadedV AZ Q UE Z R O ME RO V

. G A R L A ND 22

guilty to a disqualifying offense, the alien cannot reasonably
argue he relied o n imm igration 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 t h e alien has

“ committed an offense” identified in § 1 182(a)(2). Id. at 272 (citing 8 U.S.C. § 1101(a)(13)(C)(v)) (em phasis added).

The Suprem e Court rejected this analysis. It held that it

was n o t n e c e ssary 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 imm igration law.” Id.
at 2 73– 7 5

. The Court reasoned that there is no “practical differ e n ce, so far as retroactivity is concerned ” between

comm itting an offense and being convicted of the offense. Id.
at 275 (em

phasis added). Rather, an LPR who comm itted an offense pre-IIRIRA would likely rely on the pre-IIRIRA right “to m ake trips of s h o rt duration” without “seeking an official’s perm ission.” Id. at 274. Moreover, in m any cases the governm ent w ill d e term ine that the alien “comm itted an offense” f or purposes of § 1101(a)(13)(C) by “check[ing] the alien’s records fo r a c onviction” at the border. Id. at 275. Therefore, for purposes of the Court’s retroactivity analysis,

an alien’s reliance o n pre-IIRIRA law for purposes o f traveling abroad is substantially ide n t ical whether the alien

comm itted or was convicted of an offense. Vartelas noted, in dicta, that “[t]he e n t i re § 1101(a)(13)(C)(v) phrase ‘comm itted an offense identified in section 1182(a)(2),’ on straightforward reading, appears to advert to a lawful
perm anent resident who has been convicted of an o ffense under § 1182(a)(2) (or adm its to one).” Id. at 275 n.11. 7

7 The Court’s circum spect wordi n g e ffectively acknowledges t hat the statutory language is am biguous and susceptible t o d ifferent interpretations

. A n alternative f air reading is that the reference toV AZ Q UE Z R O ME RO V

. G A R L A ND 23

Contrary to Vazquez-Rom ero’s argum ent, this dicta does not conflict with V

alenzuela-Felix ’s determ ination regarding the tim ing of the governm ent’s obligation to prove that a

r e tu rn i n g LPR me e t s t h e e x c ep t i o n s e t for t h i n § 1101(a)(13)(C)(v).

C

W e next co ns i der the BIA’s determ ination that, at

su b seq u ent rem oval proceedings, the g o v ernm ent m ay rely o n

a conviction obtained after a returning LPR is paroled into the United States but before the LPR i s placed in rem oval proceedings. Valenzuela Felix , 26 I. & N. Dec. at 59–60.

Faced w ith the sam e question in Munoz
, the Fifth Circuit hel d th a t the governm ent properly relied on a subsequent conviction b e c ause, like Vazquez R o m ero, the LPR there “had already comm itted the act when she applied for reentry. ” 755 F.3d at 370. Li k e Valenzuela-Felix
, Munoz found that this rule “m akes good p ractical sense.” Id. at 371. W e agree. W e therefore d e f

er to the B IA and join the Fifth Circuit in hol d i n g that, to m eet its burden of proving that a returning LPR is seeking an adm ission into the United St ates under § 1101(a)(13)(C), the govern me n t m ay rely on a conviction obtained after the LPR is paroled into the United States but before the LPR is placed in rem oval proceedings. See Munoz
, 755 F.3d at 372; cf. Ali v. R eno , 22 F.3d 442, 448 n.3 (2d Cir. 1994); Palmer v. INS , 4 F.3d 482, 485 n.11 (7th Cir. 1993).

§ 1 1 8 2 (a)(2) incorporates the statute’s classification o f offenses, but n o t its requirem ent that the alien has been convicted.V AZ Q UE Z R O ME RO V

. G A R L A ND 24

IV

W e now apply this fram ework to t h e fa ct s of this case. When Vazquez Rom ero arrived at LAX, the CBP exerc i se d i ts discretion to parole him into the United States fo r prosecution. As we have explained, we do not second-guess the CBP’s decision to do so. Vazquez Rom ero then pleaded guilty to a crim e involving m or a l turpitude. At subsequent

rem oval p roceedings, the governm ent properly relied on Vazquez Rom ero’s conviction to carry its burden of proving by clear and convincing evidence th at V azq u ez Rom ero could be regarded as an alien seeking an adm ission into the United States, p ursuant to § 1101(a)(13)(C)(v). 8 Vazquez R om ero

was therefore prop e r l y subjected to a charge o f inadm issibility.

PETITION DENIED

.

8 Vazquez Rom ero also argues t h at (1) petty theft under California Penal Code § 484 is not a crim e involving m oral turpitude and (2) the IJ denied him du e process by denying his counsel’s m otion to withdraw. Those argum ents were not raised before the BIA, and thu s w e lack jurisdiction to review them

. Barron v. As h croft
, 358 F.3d 674, 678 (9th Cir. 2004).