Facts of the Case
Muk Choi Lau, a native and citizen of China, was admitted to the United States as a lawful permanent resident on September 7, 2007, after several years of traveling to the country as a nonimmigrant. On May 7, 2012, Lau was charged in New Jersey with third-degree trademark counterfeiting. While awaiting trial, he left the United States for a brief period. Upon returning on June 15, 2012, he presented himself at John F. Kennedy International Airport as a returning lawful permanent resident. However, because of his pending charge, immigration authorities declined to admit him outright and instead paroled him into the country pursuant to 8 U.S.C. § 1182(d)(5)(A). Over a year later, in June 2013, Lau pleaded guilty to the counterfeiting charge and was sentenced to two years’ probation.
The Department of Homeland Security initiated removal proceedings against Lau in March 2014, charging him with inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude (CIMT). Lau argued that he should not have been treated as an arriving alien at the time of reentry and that he was eligible for a discretionary waiver under 8 U.S.C. § 1182(h). The immigration judge rejected both claims, and the Board of Immigration Appeals affirmed. Lau petitioned for review, arguing primarily that DHS lacked clear and convincing evidence to treat him as an applicant for admission on reentry merely due to a then-pending charge. The U.S. Court of Appeals for the Second Circuit agreed, holding that DHS erred in treating Lau as inadmissible based solely on unproven allegations at the time of reentry and granted his petition.
The immigration judge ordered removal in 2018, and the Board of Immigration Appeals upheld that decision in 2021. The Second Circuit vacated the removal order in 2025 and remanded the case to terminate proceedings under the inadmissibility ground, reserving the possibility of future removal under a deportability provision.
Questions
To remove a lawful permanent resident who committed an offense listed in Section 1182(a)(2) and was subsequently paroled into the United States, must the government prove that it possessed clear and convincing evidence of the offense at the time of the lawful permanent resident’s last reentry into the United States?
Conclusions
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The Immigration and Nationality Act (INA) does not require a border officer to possess clear and convincing evidence that a lawful permanent resident has committed a crime involving moral turpitude before treating that resident as an applicant for admission rather than someone already admitted to the country. Justice Thomas authored the 6-3 majority opinion of the Court.
Removing a lawful permanent resident on inadmissibility grounds involves two distinct steps. At step one, the government needs only to show the resident "committed" a qualifying crime — such as a crime involving moral turpitude (a legal term for offenses considered fundamentally dishonest or depraved) — to treat that person as seeking admission rather than already admitted. At step two, the government must show the resident is inadmissible, which requires a conviction or admission of the crime. The INA specifies burdens of proof in various other immigration contexts — requiring applicants to prove admissibility and the government to prove deportability of admitted aliens — but it nowhere places a clear-and-convincing-evidence burden on border officers making the threshold step-one classification. The Second Circuit invented that border-level requirement not from the statutory text but from inapplicable Board of Immigration Appeals precedent, which itself applies the clear-and-convincing standard only at the removal hearing, not at the border.
Because that evidentiary standard applies at the removal hearing rather than at the border, the government satisfied it in this case: the guilty plea entered before removal proceedings constituted clear and convincing evidence that the resident had committed the qualifying crime before he attempted to reenter the country. Separately, the statute's use of the phrase "has committed" an offense — rather than "has been convicted of" — means the commission of the crime, not a formal conviction, triggers step-one classification. A conviction is required to establish inadmissibility at step two, but section 1101(a)(13)(C)(v) incorporates only the crimes identified elsewhere in the statute, not the separate conviction requirement those other provisions contain.
Justice Ketanji Brown Jackson dissented, joined by Justices Sonia Sotomayor and Elena Kagan, arguing that the statute's mandatory "shall not" language requires border officers to make the threshold determination that an exception applies at the border before stripping a lawful permanent resident of already-admitted status, and that allowing the government to backfill that justification with a later conviction undermines both the statutory scheme and the significant legal protections Congress afforded to green card holders.
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