Matter of Jaime Enrique VALENZUELA-FELI

Posted by Attorney Norka M. Schell 
www.lawschell.com

Decided November 16, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

When the Department of Homeland Security (DHS) paroles a returning lawful permanent resident 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. 

Jaime Enrique is a native and citizen of Mexico and a lawful permanent resident (LPR) of the United States. In June 2009, Jaime Enrique was indicted by a grand jury on charges including bulk cash smuggling in violation of 31 U.S.C.§ 5332 (2006). In August 2009, Jaime Enrique travel outside the United States. Upon returning from his trip, he was paroled into the United States for prosecution. In July 2010, Jaime Enrique was convicted of that offense in the United States District Court for the Central District of California and was sentenced to 27 months' imprisonment. 


On May 23, 2011, the DHS served Jaime Enrique with a notice to appear (NTA), charging him as inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006), as an alien who has been convicted  of a crime involving moral turpitude. On July 11, the DHS lodged an additional charge that Jaime Enrique is inadmissible under section 212(a)(2)(A)(i)(II) of the INA as an alien convicted of a controlled substance violation, based on his July 8, 1991, conviction for possession for sale of cocaine in California. 

The Immigration Judge (IJ) found that "the proper time for the government to make its determination as to whether Jaime Enrique was an arriving alien was at the time he sought entry into the United States." In this regard the IJ noted that Jaime Enrique had not then been convicted and that the DHS had, at most, probable cause from an outstanding arrest warrant that he had committed a crime involving moral turpitude based on cash smuggling. Since DHS was likewise unaware of Jaime Enrique's 1991 drug conviction at that time, the IJ concluded that it did not establish by clear and convincing evidence that  LPR Jaime Enrique was seeking admission. IJ therefore ordered that the proceeding be terminated.