Supreme Court Rules CBP Does Not Need Clear and Convincing Evidence to Find Alien Inadmissible

Today, the Supreme Court ruled 6-3 in Blanche v. Lau that U.S. Customs and Border Protection (CBP) can decline to admit a lawful permanent resident (LPR) into the U.S. based on an ongoing criminal proceeding; a CBP agent is not required to have clear and convincing evidence that the alien committed the crime.

When Muk Choi Lau, a Chinese national who had LPR status since 2007, returned to the U.S. from an overseas trip at John F. Kennedy Airport in June 2012, CBP found him to be inadmissible for a crime involving moral turpitude, based on an ongoing criminal proceeding. Two months earlier, New Jersey had charged him with third-degree trademark counterfeiting.

The CBP agent inspecting Lau did not formally admit him into the U.S., but the agent did allow him into the U.S. under deferred parole, pending the outcome of his criminal case. Parole allows CBP to pause the inspection at the port and defer it to a later time without having to detain the alien pending a final admissibility decision. Lau subsequently pleaded guilty to the trademark counterfeit charge.

In March 2014, the Department of Homeland Security began removal proceedings against Lau, charging him as inadmissible for having been convicted of a crime involving moral turpitude.

The Immigration and Nationality Act (INA) differentiates between grounds of inadmissibility and removability with which DHS can charge an alien. An alien is inadmissible if he has been convicted of a crime involving moral turpitude at any time. By contrast, DHS can charge an already admitted alien as removable if he has been convicted of a crime involving moral turpitude only if that crime was committed within five years after the date of admission.

Lawful permanent residents are generally regarded as already admitted to the country, so they usually do not have to reapply for admission when returning from a temporary trip overseas. However, a key exception exists in the INA: DHS may regard an LPR as seeking admission if he has committed an offense including a crime involving moral turpitude.

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Lau sought to terminate the removal proceedings, claiming DHS improperly classified him as an applicant “seeking admission” when he returned from his trip to China instead of deeming him already admitted as an LPR and subject to removal only on removability grounds.  The immigration judge found Lau removable as charged, based on his conviction. Lau appealed to the Board of Immigration Appeals, which affirmed the immigration judge’s removal order. Lau appealed again to the U.S. Court of Appeals for the Second Circuit, which vacated the removal order.  

The Second Circuit ruled that CBP needed clear and convincing evidence at the port that Lau committed the crime of trademark counterfeiting. In the court’s view, the criminal charge alone did not give the CBP agent clear and convincing evidence that Lau committed the crime. Without it, the Second Circuit ruled that CBP should have regarded Lau as already admitted, and thus that he was improperly charged with inadmissibility by DHS.

The U.S. Department of Justice appealed the decision, and the Supreme Court granted certiorari because the Second Circuit’s decision conflicted with others of the Fifth and Ninth Circuits.

The Supreme Court majority wrote a short, straightforward opinion because the analysis of the immigration statute is straightforward. The majority stated that removing a lawful permanent resident on a charge of inadmissibility involves two steps.

At step one, to show that the alien could be regarded as seeking to be admitted, only commission of a crime is required. At step two, to show that the alien seeking to be admitted is inadmissible, conviction or admission is required. “Under these rules,” the majority wrote:

Lau was correctly charged with inadmissibility.  At step one, the Government properly regarded him as an alien seeking admission because he had committed a crime involving moral turpitude before attempting to reenter the country. … So, at step two, he was inadmissible and therefore removable if he satisfied any statutory ground for inadmissibility, including that he had been convicted of a crime involving moral turpitude.

The majority stated that “[t]he Second Circuit resisted that straightforward analysis.” It added that nothing in the INA imposes upon the Government “the burden to prove by clear and convincing evidence that Lau actually committed the crime in question at the time of reentry.”

Finally, the majority wrote that it declined “to read into the INA an additional clear-and-convincing evidence burden on border officers entrusted with making ‘quick judgments on the spot.’” CBP agents must inspect planeloads of passengers in very short periods of time. In addition to not having the legal burden, as a practical matter, CBP agents have neither the resources nor the time to judge during airport inspection whether an alien has met each element of a charged crime.

The inspecting CBP agent decided to parole Lau into the U.S., pending his criminal case, rather than outright deny his admission or detain him during his criminal proceedings. Lau benefited from such parole, but the Supreme Court ruled that Lau was not owed readmission following his criminal conviction.