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Matter of Jaime Enrique Valenzuela-Felix

The respondent in this case was a long-time LPR indicted by a federal grand jury on charges of bulk cash smuggling.  Post-indictment but pre-conviction, he returned to the United States from a trip abroad and was paroled into the country for prosecution.  He was convicted the following year.

DHS then initiated removal proceedings, charging him with inadmissibility under section 212(a)(2)(A)(i)(I), as an alien convicted of a crime involving moral turpitude.  The IJ terminated the proceedings, reasoning that the DHS had not met its burden of establishing that the respondent was seeking admission because, at the time he sought entry into the US, he had not yet been convicted of the crime.

The Board reversed.  Under section 101(a)(13)(C) of the Act, an LPR shall only be considered an applicant for admission if he falls within one of six enumerated categories, including aliens who have committed an offense under section 212(a)(2).  The Board held that because the respondent in this case was paroled into the country for prosecution, DHS could rely on his subsequent conviction to sustain its burden of proving that he was properly charged as an arriving alien.  In reaching this conclusion the Board reasoned that an application for admission is a continuing application and admissibility is determined at the time the application is considered before the IJ, not at the time the alien first presents himself for inspection.  Thus, following this case, when DHS is confronted with a returning LPR who is suspected of criminal activity but has not yet been convicted, it may parole him into the country for purposes of prosecution and rely on the results of the prosecution for purposes of applying section 101(a)(13)(C) in future removal proceedings.

Board member Patricia Cole dissented from the opinion, reasoning that the plain language of section 101(a)(13)(C) demands that the determination of whether a returning LPR is seeking admission must be made at the time he presents himself at a port of entry based on the information then available to DHS.