21-6623 Muk Choi Lau v. Bondi
United States Court of Appeals For the Second Circuit
August Term 2022
Submitted: May 5, 2023 Decided: March 4, 2025
No. 21-6623
MUK CHOI LAU,
Petitioner,
v.
PAMELA BONDI, United States Attorney General,
Respondent. *
Before: JACOBS, SULLIVAN, and KAHN, Circuit Judges.
Muk Choi Lau, a native and citizen of China, petitions for review of a final order of removal by the Board of Immigration Appeals (the “BIA”) affirming a decision of an Immigration Judge that found Lau inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) and ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h) (a “212(h) waiver”). In ordering that Lau be removed, the agency concluded – among other things – that Lau’s conviction for trademark counterfeiting constituted a crime involving moral turpitude (a “CIMT”), that this
* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. crime did not qualify as an excepted “petty offense,” that Lau was properly classified as an applicant for admission when he returned to the United States from abroad while this criminal charge was pending, and that he was not entitled to a 212(h) waiver. On appeal, Lau argues that the agency erroneously concluded that (1) his conviction for trademark counterfeiting constituted a CIMT, (2) the Department of Homeland Security (“DHS”) properly treated him as an applicant for admission at the time of his reentry, and (3) he did not qualify for a 212(h) waiver. Because we agree with Lau that DHS improperly classified him as an applicant for admission under 8 U.S.C. § 1182(d)(5)(A) by paroling him into the United States upon his return from abroad, we need not address Lau’s other claims of error. We therefore GRANT Lau’s petition for review, VACATE the final order of removal, and REMAND this case to the agency with instructions to terminate removal proceedings against Lau on the basis of his inadmissibility under section 1182(a), without prejudice to any future deportation proceeding, such as one brought pursuant to 8 U.S.C. § 1227(a).
Mike P. Gao, Law Offices of Mike P. Gao, P.C., Flushing, NY, for Petitioner.
Kiley Kane, Senior Litigation Counsel; Stefanie A. Svoren-Jay, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, for Respondent.
RICHARD J. SULLIVAN, Circuit Judge:
Muk Choi Lau, a native and citizen of China, petitions for review of a final
order of removal by the Board of Immigration Appeals (the “BIA”) affirming a
decision of an Immigration Judge (“IJ”) that found Lau inadmissible under 8
U.S.C. § 1182(a)(2)(A)(i)(I) and ineligible for a waiver of inadmissibility under 8
U.S.C. § 1182(h) (a “212(h) waiver”). In ordering that Lau be removed, the agency
2 concluded – among other things – that Lau’s conviction for trademark
counterfeiting constituted a crime involving moral turpitude (a “CIMT”), that this
crime did not qualify as an excepted “petty offense,” that Lau was properly
classified as an applicant for admission when he returned to the United States from
abroad while this criminal charge was pending, and that he was not entitled to a
212(h) waiver. On appeal, Lau argues that the agency erroneously concluded that
(1) his conviction for trademark counterfeiting constituted a CIMT, (2) the
Department of Homeland Security (“DHS”) properly treated him as an applicant
for admission at the time of his reentry, and (3) he did not qualify for a 212(h)
waiver. Because we agree with Lau that DHS improperly classified him as an
applicant for admission under 8 U.S.C. § 1182(d)(5)(A) by paroling him into the
United States upon his return from abroad, we need not address Lau’s other claims
of error. We therefore GRANT Lau’s petition for review, VACATE the final order
of removal, and REMAND this case to the agency with instructions to terminate
removal proceedings against Lau on the basis of his inadmissibility under section
3 1182(a), without prejudice to any future deportation proceeding, such as one
brought pursuant to 8 U.S.C. § 1227(a).
I. BACKGROUND
A. Facts
Between 2001 and 2004, Lau, a Chinese national, made several short trips to
the United States. Over the next three years, Lau’s trips to the United States
became longer and more frequent. When Lau temporarily visited the United
States during this period, he did so pursuant to a nonimmigrant visa. Lau was
finally admitted to the United States as a lawful permanent resident (an “LPR”) on
September 7, 2007.
On May 7, 2012, Lau was charged with third-degree trademark
counterfeiting in violation of New Jersey law. While awaiting trial, he temporarily
left the United States. Upon his return on June 15, 2012, he presented himself to
the immigration authorities at John F. Kennedy International Airport as a
returning LPR. In light of Lau’s pending charge, the immigration officer declined
to admit him to the United States and instead paroled him for deferred inspection
pursuant to 8 U.S.C. § 1182(d)(5)(A), which permits the Secretary of Homeland
4 Security “in his discretion [to] parole into the United States temporarily . . . any
alien applying for admission to the United States” under certain conditions.
Just over a year later, on June 24, 2013, Lau entered a guilty plea and was
subsequently convicted of trademark counterfeiting in violation of N.J. Rev. Stat.
§ 2C:21-32(c). He was sentenced to two years’ probation.
On March 13, 2014, DHS initiated removal proceedings against Lau,
asserting that he was removable pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), which
provides that an alien is “ineligible to be admitted to the United States” if he has
been “convicted of . . . a crime involving moral turpitude.” Lau sought to
terminate these removal proceedings, arguing that DHS improperly classified him
as “seeking admission . . . as an arriving alien” when he returned from his brief
trip abroad, instead of admitting him as an LPR. Certified Admin. Rec. at 389–90.
Lau also asserted that his conviction for trademark counterfeiting fell within the
“petty offense” exception to section 1182(a)(2)(A)(ii)(II). Id. at 390. 1
On April 20, 2016, Lau applied for a 212(h) waiver, which allows the
Attorney General to waive grounds of inadmissibility in certain circumstances. To
1The “petty offense” exception provides that an alien shall not be deemed inadmissible if the maximum possible penalty for the crime did not exceed imprisonment for one year and the alien was sentenced to a term of imprisonment of six months or less. See 8 U.S.C. § 1182(a)(2)(A)(ii)(II).
5 be eligible for such a waiver, the alien must have “lawfully resided continuously
in the United States for a period of not less than [seven] years immediately
preceding the date of initiation of proceedings to remove the alien.” 8 U.S.C.
§ 1182(h). In applying for this waiver, Lau acknowledged that he had only been
an LPR for approximately six years and seven months at the time his removal
proceedings were initiated. He nevertheless argued that the time he spent in the
United States prior to September 7, 2007, pursuant to a nonimmigrant visa, should
be counted toward his period of continuous residency.
B. Procedural History
On March 20, 2018, the IJ issued an oral decision in which he determined
that Lau’s conviction for trademark counterfeiting constituted a CIMT and that
Lau’s conviction did not fall within the petty offense exception because the
maximum sentence for trademark counterfeiting was more than one year. The IJ
also concluded that, because Lau had already committed the crime of trademark
counterfeiting when he sought reentry into the United States, he was properly
6 classified as “inadmissible” upon his arrival and was appropriately paroled even
though he had not yet been convicted of trademark counterfeiting.
As to Lau’s request for a 212(h) waiver, the IJ concluded that Lau was
ineligible for such a waiver because he had not “resided continuously” in the
United States for a period of seven years prior to the initiation of his removal
proceedings. Certified Admin. Rec. at 64–65. In particular, the IJ determined that
Lau was still a resident of China during the periods in which he was in the United
States on a nonimmigrant visa and concluded that these periods could not be
counted towards the residency requirement for a 212(h) waiver. The IJ further
found that such trips to the United States were intermittent and did not constitute
a period of “continuous” residency. Id. at 68.
On November 23, 2021, the BIA affirmed the IJ’s decision and dismissed
Lau’s appeal. The BIA concluded that the IJ properly determined that Lau
committed a CIMT, noting that Lau’s conviction for trademark counterfeiting
“conclusively establishe[d] that his conduct corresponded to the elements of that
crime, including the intent and knowledge elements.” Id. at 4–5. The BIA also
rejected Lau’s contention that his conviction was covered by the petty offense
7 exception, agreeing with the IJ that the exception was inapplicable because Lau’s
crime of conviction carried a maximum sentence of five years’ imprisonment.
The BIA additionally rejected Lau’s argument that he was improperly
classified as an applicant for admission when he returned to the United States from
abroad while a criminal charge was pending against him. On this point, the BIA
concluded that Lau’s argument was foreclosed by Matter of Valenzuela-Felix, in
which the BIA held that the Immigration and Nationality Act (the “INA”) “does
not purport to restrict the DHS’s law enforcement authority to parole a returning
[LPR] until pending criminal charges potentially giving rise to inadmissibility can
be resolved” or “prevent the DHS from treating a returning resident as an arriving
alien until an ultimate determination is made.” 26 I. & N. Dec. 53, 57 (B.I.A. 2012).
Because Lau failed to acknowledge or distinguish this case in his brief, the BIA
deemed this decision controlling. Having concluded that Lau was properly
removable, the BIA then considered whether Lau was eligible for a 212(h) waiver.
The BIA rejected Lau’s arguments that the time he spent in the United States
pursuant to a nonimmigrant visa counted toward his continuous residence and
8 that his Notice to Appear was defective such that he actually met the residency
requirement.
On December 6, 2021, Lau filed the instant petition for review of the BIA’s
decision. Before us, Lau argues only that the agency erred in concluding that (1)
DHS properly treated him as an applicant for admission when he reentered the
United States while his trademark-counterfeiting charge was pending; (2) his
conviction for trademark counterfeiting constituted a CIMT; and (3) he was
ineligible for a 212(h) waiver.
We agree with Lau that a pending criminal charge does not provide the clear
and convincing evidence of a CIMT necessary for DHS to consider an LPR an
applicant for admission at the time of reentry and then parole him under section
1182. We therefore grant his petition, without reaching his alternative arguments
that his subsequent conviction for trademark counterfeiting does not constitute a
CIMT or that he was improperly denied a 212(h) waiver of inadmissibility. See
Obeya v. Sessions, 884 F.3d 442, 445 n.1 (2d Cir. 2018) (granting petition for review
of BIA order affirming an IJ’s removal order on one ground; acknowledging
without deciding “alternative arguments” for granting petition).
9 II. STANDARD OF REVIEW
“When, as here, the BIA adopts and expands upon an IJ’s decision, we
review both the IJ and BIA decisions.” Jung Hee Jang v. Garland, 42 F.4th 56, 59 (2d
Cir. 2022); see also Wala v. Mukasey, 511 F.3d 102, 105 (2d Cir. 2007). We review an
IJ’s legal conclusions – including whether a petitioner was properly treated as an
arriving alien applying for admission – de novo. See Ibragimov v. Gonzales, 476 F.3d
125, 132 (2d Cir. 2007). We also review “BIA determinations of law de novo.”
Nwozuzu v. Holder, 726 F.3d 323, 326 (2d Cir. 2013). Of course, courts may give
“[c]areful attention to the judgment of the Executive Branch” when interpreting a
statute, but such careful attention must not prohibit courts from exercising “their
independent judgment.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412-13
(2024).
III. DISCUSSION
Lau contends that we must vacate the BIA’s order of removal because DHS
improperly classified him as an applicant for admission and paroled him when he
returned to the United States from a trip abroad, when it should have admitted
him. We begin our analysis with the statutory text. See Nwozuzu, 726 F.3d at 327.
Section 1182 of the INA, titled “[i]nadmissible aliens,” discusses the circumstances
10 in which aliens are “ineligible to be admitted to the United States.” 8 U.S.C.
§ 1182(a). 2 Section 1182 grants DHS discretion to “parole into the United States
temporarily . . . any alien applying for admission to the United States” “for urgent
humanitarian reasons or significant public benefit.” Id. § 1182(d)(5)(A) (emphasis
added). Although an alien who is paroled is allowed to enter the country, he is
not “considered to have been admitted” for the purposes of the immigration laws.
Id. § 1101(a)(13)(B).
The INA makes clear that “alien[s] lawfully admitted for permanent
residence in the United States” – LPRs – who are returning to the United States
from visits abroad “shall not be regarded as seeking an admission into the United
States,” subject to certain enumerated exceptions. Id. § 1101(a)(13)(C). As relevant
here, LPRs may be regarded as seeking admission to the United States if they
“ha[ve] committed” certain offenses, id. § 1101(a)(13)(C)(v), including “crime[s]
involving moral turpitude,” id. § 1182(a)(2)(A)(i)(I). Accordingly, the plain
language of section 1101 makes clear that LPRs are not considered to be “seeking
. . . admission” upon reentry to the United States unless certain enumerated
2 Notably, section 1182 is distinct from another provision of the INA – section 1227, titled “[d]eportable aliens” – which addresses the circumstances in which an alien who has already been “admitted to the United States shall . . . be removed” from the country. 8 U.S.C. § 1227(a) (emphasis added).
11 circumstances – including their having committed a CIMT – are present. Id.
§ 1101(a)(13)(C).
We have already had occasion to consider the question of when an
individual is deemed to have “committed” a crime for the purposes of section
1101. In Centurion v. Sessions, we examined when the “legal consequences of
[section] 1101(a)(13)(C)(v) attach” to an alien’s criminal conduct and held that such
consequences attach “when an alien engages in criminal conduct” as opposed to
“once the offense has been adjudicated.” 860 F.3d 69, 75 (2d Cir. 2017). To that
end, we explained that section 1101(a)(13)(C)(v) does not “expressly require[] an
alien to have been convicted of an offense for specific consequences to attach.” Id.
at 76. However, we noted that – although the legal consequences of a CIMT attach
at the time of commission – “in practice, those consequences may not be
enforceable in any meaningful way until after the [LPR] is convicted of the crime.”
Id. at 77. This is because it will generally be difficult for DHS to find, by clear and
convincing evidence, that the alien has committed a qualifying crime at the time
of admission if the admission precedes the LPR’s criminal trial or admission of
guilt. See id.; see also Matter of Rivens, 25 I. & N. Dec. 623, 625 (B.I.A. 2011) (“DHS
bears the burden of proving by clear and convincing evidence that a returning
12 [LPR] is to be regarded as seeking an admission.”). The officer at the border will
ordinarily do so by “check[ing] the alien’s records for a conviction” and nothing
else. Centurion, 860 F.3d at 77.
Here, we are presented with the question of whether DHS may parole an
LPR at the border who has been charged with – but not yet convicted of – a CIMT.
In analyzing this question, we heed Centurion’s holding that an LPR becomes an
alien applying for admission for purposes of section 1101(a)(13)(C) upon the
commission, rather than the conviction, of a crime. But we are also cognizant of
the reality that, without a conviction, DHS will be hard pressed to prove by clear
and convincing evidence that the LPR actually committed the crime in question at
the time of reentry. If DHS fails to sustain its burden of proving otherwise, the
default presumption governs that an LPR is not an applicant for admission.
In Matter of Valenzuela-Felix, the BIA addressed the issue currently before us,
holding that DHS can rely on an alien’s “subsequent conviction to sustain its
burden of proving that he was properly charged as an [inadmissible] arriving
alien” at the time of reentry. 26 I. & N. Dec. at 55. In so holding, the BIA
determined that DHS’s “authority to parole for purposes of prosecution is not
limited to applicants for admission,” id., and rejected the notion that “DHS must
13 meet a threshold standard before it may parole a returning [LPR] into the United
States for prosecution and then charge him with inadmissibility on the basis of the
results,” id. at 62. Put simply, the BIA did not interpret the INA “to constrain the
DHS in its ability to prove the applicability of one of the six enumerated exceptions
in section [1101(a)(13)(C)] by limiting the DHS to using the evidence it already
possesses when a returning [LPR] presents himself at a port of entry.” Id. at 63–
64. In essence, the BIA concluded that DHS officials had the authority to parole
LPRs into the country at the time of reentry only to later reclassify their entry, nunc
pro tunc, based on the subsequent results of the criminal prosecution.
We cannot agree with Valenzuela-Felix’s interpretation of the relevant
provisions of the INA. The INA explicitly provides that an LPR “shall not be
regarded as seeking an admission into the United States,” except in certain
enumerated circumstances, 8 U.S.C. § 1101(a)(13)(C) (emphasis added) – including
when the alien “has committed,” id. § 1101(a)(13)(C)(v), a “crime involving moral
turpitude,” id. § 1182(a)(2)(A)(i)(I). Critically, the INA does not provide that an
LPR may be treated as seeking admission when he has been “charged with a
crime” or is “believed to have committed a crime;” it permits such treatment only
when an LPR “has committed” a crime. Id. § 1101(a)(13)(C)(v). And because
14 “DHS bears the burden of proving by clear and convincing evidence that a
returning [LPR] is to be regarded as seeking an admission,” Rivens, 25 I. & N. Dec.
at 625, we do not see how charging documents alone – without more – could carry
DHS’s burden of demonstrating that a crime had been committed at the time of an
LPR’s reentry. See United States v. Salerno, 829 F.2d 345, 346 (2d Cir. 1987)
(Newman, J., concurring) (acknowledging that the clear-and-convincing-evidence
standard is higher than that of probable cause).
The INA is also explicit that the parole process is authorized only for
“alien[s] applying for admission to the United States.” 8 U.S.C. § 1182(d)(5)(A);
see also Matter of Pena, 26 I. & N. Dec. 613, 615 (B.I.A. 2015) (“[A]n alien returning
to the United States who has been granted [LPR] status cannot be regarded as
seeking admission and may not be charged with inadmissibility . . . if he does not
fall within any of the exceptions in section [1101(a)(13)(C)] of the [INA].”). Based
on this clear statutory directive, we cannot agree that the INA allows DHS to treat
a returning LPR as an applicant for admission based on the suspicion that a CIMT
has been committed, leaving open whether this suspicion will ever be confirmed
by a subsequent conviction. The parole procedure sanctioned by Valenzuela-Felix
is therefore contrary to the INA’s text, which nowhere authorizes DHS to treat
15 LPRs as having “committed” unproven, charged crimes at the time of reentry by
paroling them first and proving their guilt later.
We respectfully disagree with our sister circuits that the INA is unclear as
to when DHS must determine whether an LPR is an applicant for admission. In
Munoz v. Holder, the Fifth Circuit held that, because “[n]othing in the plain
language of [the INA] limits the timing of the [section 1101(a)(13)(C)(v)]
determination,” DHS was empowered to use “subsequent convictions . . . to
determine whether a[n] [LPR] was an applicant for admission” at the time of
reentry. 755 F.3d 366, 370–71 (5th Cir. 2014); see also Vazquez Romero v. Garland, 999
F.3d 656, 664 (9th Cir. 2021) (deferring under pre-Loper Bright framework to BIA’s
interpretation of the INA “as allowing the government to exercise its discretion to
parole a returning LPR into the United States for prosecution before satisfying its
burden of proof”). As explained above, the INA is unmistakably clear that the
default presumption is that LPRs will not be treated as seeking admission unless
certain threshold determinations have been made. See 8 U.S.C. § 1101(a)(13)(C).
Allowing DHS to defer such a determination and take a wait-and-see approach
contingent on whether a conviction eventually materializes effectively nullifies
this clear command. See id. § 1182(a)(2)(A)(i)(I) (providing that a CIMT renders an
16 alien “inadmissible”); see also Rivens, 25 I & N Dec. at 625 (requiring DHS to meet
its “burden of proving by clear and convincing evidence that a returning lawful
permanent resident is to be regarded as seeking an admission”).
Contrary to our sister circuits’ conclusion that the INA is silent on the issue
of timing, we find that the INA is definitive on the question of sequence: DHS must
determine whether an LPR is an applicant for admission as a threshold matter
before it is authorized to parole (rather than admit) that individual. See 8 U.S.C.
§ 1101(a)(13)(C) (establishing a presumption that LPRs are not to be treated as
seeking admission except upon a finding of certain specified conditions); id.
§ 1182(d)(5)(A) (authorizing parole only with regard to “alien[s] applying for
admission to the United States”). Accordingly, we see no statutory basis to
conclude that DHS is allowed to use a subsequent conviction to provide an after-
the-fact justification for its prior decision to parole an LPR upon reentry.
Our decision does not leave DHS without lawful means to remove LPRs
who have committed CIMTs. Section 1227 provides that any alien who “is
convicted of a crime involving moral turpitude committed within five years . . .
after the date of admission” is deportable. 8 U.S.C. § 1227(a)(2)(A)(i)(I); see also id.
§ 1227(a)(1)(A) (“Any alien who at the time of entry or adjustment of status was
17 within one or more of the classes of aliens inadmissible by the law existing at such
time is deportable.”). The government did not seek to remove Lau under that
section. Because the BIA’s decision in this case constitutes a final agency
determination, “we may consider only those issues that formed the basis for that
decision.” Lin Zhong v. U.S. Dep’t of Just., 480 F.3d 104, 122 (2d Cir. 2007), abrogated
on other grounds by Santos-Zacaria v. Garland, 598 U.S. 411 (2023); see also Sec. & Exch.
Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing
with a determination or judgment which an administrative agency alone is
authorized to make, must judge the propriety of such action solely by the grounds
invoked by the agency.”).
IV. CONCLUSION
For the foregoing reasons, we conclude that the agency erred in finding Lau
removable pursuant to section 1182(a)(2)(A)(i)(I). We therefore GRANT Lau’s
petition for review, VACATE the final order of removal, and REMAND this case
to the agency with instructions to terminate removal proceedings against Lau on
the basis of his inadmissibility under section 1182(a), without prejudice to any
future deportation proceeding, such as one brought pursuant to 8 U.S.C. § 1227(a).