Background
Muk Choi Lau, a Chinese citizen, became a lawful permanent resident (LPR) of the United States in 2007. In May 2012, New Jersey charged him with trademark counterfeiting. While awaiting trial, Lau traveled to China, and on June 15, 2012, he attempted to reenter the United States at John F. Kennedy International Airport. Under the Immigration and Nationality Act (INA), LPRs returning from temporary overseas travel are generally to be regarded as already admitted and need not reapply for admission. However, one of six statutory exceptions allows the Government to treat an LPR as “seeking an admission” if he “has committed an offense” involving moral turpitude. 8 U.S.C. §1101(a)(13)(C)(v).
Because of the pending criminal charge, the border officer declined to regard Lau as already admitted and instead paroled him into the country pending resolution of the case. In June 2013, Lau pleaded guilty to trademark counterfeiting. The Government then initiated removal proceedings, charging Lau as an applicant for admission who was inadmissible for having been convicted of a crime involving moral turpitude. Lau contested the charge, arguing he should have been treated as already admitted upon return and could only be removed on deportability grounds—which would have required the crime to have been committed within five years of admission.
The Immigration Judge and the Board of Immigration Appeals both upheld the removal order. The Second Circuit vacated it, holding that border officers must have “clear and convincing evidence” that an LPR actually committed the relevant crime before treating him as seeking admission rather than already admitted. Finding that a pending criminal charge alone did not satisfy that evidentiary standard, the Second Circuit concluded the initial parole decision was improper and that Lau could not be charged with inadmissibility. The ruling created a circuit split with the Fifth and Ninth Circuits, prompting the Supreme Court to grant certiorari.
The Court’s Holding
In a 6-3 opinion authored by Justice Thomas, the Supreme Court vacated the Second Circuit’s judgment and remanded. The Court held that the INA does not require a border officer to have clear and convincing evidence that a returning LPR committed a crime involving moral turpitude before deeming the LPR an applicant for admission. The Court explained that removing an LPR on inadmissibility grounds involves two distinct steps: at step one, only commission of the crime is required to show that the LPR may be regarded as seeking admission; at step two, conviction (or admission) is required to show that the alien seeking admission is actually inadmissible. Here, the Government satisfied both steps — it treated Lau as seeking admission based on his pre-reentry crime, and it established inadmissibility at the removal hearing via his subsequent guilty plea, which itself constituted clear and convincing evidence that he had committed the crime before attempting to reenter.
The Court rejected the Second Circuit’s reasoning that the Board of Immigration Appeals’ clear-and-convincing-evidence standard — which applies at the removal hearing — must also apply to border officers making real-time entry determinations. The Court noted that the BIA’s own precedent in Matter of Valenzuela-Felix imposes that burden only at the time of the removal hearing, not at the border. Extending that standard to front-line border officers making “quick judgments on the spot” found no support in the statutory text, and the Court declined to read such a requirement into the INA.
The Court also rejected Lau’s alternative argument that an LPR may be treated as seeking admission only after a conviction, not merely upon commission of a qualifying crime. The statutory text of §1101(a)(13)(C)(v) uses the phrase “has committed” a crime, which refers to the act itself — not its conviction. Section 1101(a)(13)(C)(v) incorporates by reference only the crimes identified in §1182(a)(2), not that section’s separate conviction requirement. The Court did not resolve whether Lau’s trademark-counterfeiting offense constituted a crime involving moral turpitude, remanding that question to the Second Circuit.
Key Takeaways
- Border officers are not required by the INA to have clear and convincing evidence that a returning LPR committed a qualifying crime before treating that LPR as “seeking an admission” rather than already admitted.
- The two-step inadmissibility framework is sequential: commission of the crime (step one) authorizes treating an LPR as seeking admission; conviction or admission of the crime (step two) establishes inadmissibility — these are separate evidentiary requirements applied at different stages.
- The clear-and-convincing-evidence standard that the BIA applies in removal proceedings does not automatically extend to border-entry determinations; it applies at the hearing, not the port of entry.
- The statutory phrase “has committed” in §1101(a)(13)(C)(v) triggers the admission-seeking exception upon the act of committing the crime, not upon conviction — the conviction requirement in §1182(a)(2) is not incorporated by reference into the exception.
- Justice Jackson, joined by Justices Sotomayor and Kagan, dissented, arguing that the statute’s mandatory “shall not” language requires border officers to make a threshold determination that an exception actually applies before divesting an LPR of already-admitted status.
Why It Matters
This decision resolves a three-way circuit split and clarifies the evidentiary framework governing one of the most consequential decisions border officers make: whether to treat a returning green-card holder as already admitted or as a fresh applicant for admission. The distinction is not merely procedural — it determines which removal grounds apply, how the burden of proof is allocated, and whether the five-year clock on deportability for crimes of moral turpitude runs at all. By rejecting a heightened evidentiary threshold at the border, the Court gives immigration officers broader operational latitude to parole returning LPRs pending resolution of outstanding criminal matters without risk that the resulting inadmissibility charge will later be invalidated.
For practitioners, the ruling confirms that a guilty plea entered after a client’s return to the United States can retroactively validate a border officer’s step-one determination, even when that determination was made based only on a pending charge. Defense counsel and immigration attorneys should note that challenging the “seeking admission” classification in removal proceedings — arguing the border officer lacked sufficient evidence at the time — will not succeed under this framework. The Court’s remand leaves open the moral-turpitude characterization of trademark counterfeiting, which may still provide Lau a path to relief and will be significant for similarly situated noncitizens.