The case centers on Muk Choi Lau, a Chinese national who became a lawful permanent resident in September 2007. In May 2012, Lau was arrested in New Jersey and charged with selling nearly $300,000 worth of knock-off Coogi shorts. While awaiting trial, Lau left the United States but returned in June 2012, where he encountered immigration officers at John F. Kennedy International Airport.
Lawful permanent residents generally have the right to reenter the United States without being treated as seeking admission. However, the Immigration and Nationality Act provides an exception for those who have committed a crime involving moral turpitude. Immigration officers determined that Lau’s pending counterfeiting charge fell under this exception. Rather than admitting him, they paroled him to temporarily enter the country to face prosecution, deferring consideration of his eligibility for admission.
In June 2013, Lau pleaded guilty to trademark counterfeiting and was sentenced to two years’ probation. The Department of Homeland Security then began removal proceedings in March 2014, arguing Lau was ineligible for admission rather than subject to deportation. This distinction required Lau to prove he was eligible for admission, shifting the burden from the government.
An immigration judge sided with the government, holding that Lau was properly classified as inadmissible because he had already committed the crime when he sought reentry. The Board of Immigration Appeals affirmed this decision.
Lau appealed to the U.S. Court of Appeals for the Second Circuit, which ruled in his favor. The court held that immigration officers improperly classified Lau and could not invoke the moral turpitude exception without clear and convincing evidence that he had committed such a crime at the time of his arrival.
Judge Richard J. Sullivan, writing for a unanimous panel, noted that charging documents alone could not carry the government’s burden of demonstrating that a crime had been committed at the time of reentry. The court vacated the removal order but noted the government could initiate new proceedings based on Lau’s conviction.
The Second Circuit acknowledged a conflict among federal courts of appeals regarding when the government must prove a lawful permanent resident committed a disqualifying offense. Other circuits would have been satisfied by Lau’s eventual conviction, which confirmed after the fact that he had committed a crime before meeting immigration officers.
U.S. Solicitor General D. John Sauer asked the Supreme Court to review the Second Circuit’s ruling, highlighting this circuit split. The justices agreed to determine whether officers need clear and convincing evidence at the time of parole or if producing that evidence during removal proceedings is sufficient.
In his merits brief, Sauer argued that the Immigration and Nationality Act does not allow courts to limit review to evidence available at the border. He contended that requiring officers to conduct mini-trials with clear and convincing evidence is inconsistent with their role in handling large inflows of travelers.
Lau countered that the government is ignoring clear textual limitations to pursue easier routes for removal. He argued that the Act permits judicial review of questions of law, including whether a noncitizen is statutorily eligible for parole. Lau also asserted that immigration officers are capable of assessing criminal history at the border.
The court’s decision in Blanche v. Lau is expected by early July.