Blanche v. Lau

    Issues

    Does the government need clear and convincing evidence that a lawful permanent resident committed a crime to parole them into the United States when they reenter the country?

    Oral argument:
    April 22, 2026
    Court below:
    United States Court of Appeals for the Second Circuit

    This case asks whether the government must show that it had clear and convincing evidence that a Lawful Permanent Resident committed a crime of moral turpitude at the time that the Lawful Permanent Resident was temporarily paroled by the Department of Homeland Security. Petitioner former Attorney General Pamela Bondi argues that the government only needs to present clear and convincing evidence that the Lawful Permanent Resident committed a crime at removal proceedings and not before. Bondi also argues that a court cannot review the discretionary decisions of the Department of Homeland Security. In response, Respondent Muk Choi Lau argues that Lawful Permanent Residents cannot be paroled unless the government can prove the noncitizen committed a crime at the time of their reentry. Lau also asserts that the decision to parole him was a mixed question of law and fact and therefore can be reviewed. The outcome of this case has implications for screening procedures at the border, the rights of noncitizens, and public safety.

    Questions as Framed for the Court by the Parties

    Whether, to remove a lawful permanent resident who committed an offense listed in Section 1182(a)(2) and was subsequently paroled into the United States, the government must 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.
     

    Facts

    The Immigration and Nationality Act (“INA”) governs how the U.S. government may remove noncitizens from the United States. When the Department of Homeland Security (“DHS”) initiates removal proceedings, it either does so under 8 U.S.C. § 1182 (where the noncitizen is “inadmissible”) or under 8 U.S.C. § 1227 (where the noncitizen is “deportable”). When a noncitizen seeks admission into the U.S., DHS may admit or deny them entry into the United States. DHS may also “parole” an entering noncitizen, allowing an alien “applying for admission” to enter the United States temporarily without having been formally admitted to the U.S. Once a noncitizen is admitted into the U.S., the government can no longer remove them under 8 U.S.C. § 1182 and instead must deport them under 8 U.S.C. § 1227. When a noncitizen is a lawful permanent resident (“LPR”) who has left the U.S. temporarily, they are considered already admitted when returning to the U.S. and therefore are not “applying for admission.” However, there are exceptions to this rule under 8 U.S.C. § 1101(a)(13)(C), including where an LPR has committed a crime involving “moral turpitude.” Where an LPR has committed such a crime, they may still be considered to be “applying for admission.” It is significant whether an LPR is admitted or seeking admission because the burden of proof shifts regarding removal proceedings. Where an LPR is admitted, the government carries the burden of proving that the LPR is deportable. Where an LPR is seeking admission, however, the burden of proof lies on the LPR to show that they are admissible.

    In September 2007, Muk Choi Lau, a Chinese national, was admitted to the U.S. as an LPR. In May 2012, Lau was charged with third-degree trademark counterfeiting in New Jersey. Before he went to trial, Lau temporarily left the country. Upon his return to the U.S. in June 2012, Lau was not admitted to the U.S. but instead was paroled due to his pending charge. Later, Lau pled guilty to the counterfeiting charge and was sentenced to two years’ probation. In 2014, DHS sought to remove Lau, alleging that since Lau had committed a crime of moral turpitude, he was ineligible to be admitted into the United States upon his return to the country. Lau challenged DHS’s removal efforts, claiming that as an LPR, he was presumptively already admitted into the United States when arriving from his time abroad.

    In 2018, an immigration judge (“IJ”) found that Lau had committed a crime involving moral turpitude when he arrived in the United States and was properly designated as inadmissible. Lau appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”). In 2021, the BIA affirmed the IJ’s decision. Lau then appealed to the United States Court of Appeals for the Second Circuit, which reversed the BIA’s decision, vacated the final order of removal, and remanded the case back to DHS. In the Second Circuit’s decision, the court found that Lau was improperly classified as an “applicant for admission” when he returned to the U.S. because, at the time of his reentry, DHS did not possess clear and convincing evidence that Lau had committed the crime he was charged with and therefore Lau did not fall into an exception under 8 U.S.C. § 1101(a)(13)(C). 

    On October 8, 2025, former Attorney General Pamela Bondi petitioned the Supreme Court of the United States for a writ of certiorari, which was granted on January 9, 2026. In the time since Bondi petitioned and submitted merits briefing to the Supreme Court, President Trump removed Bondi from her position, leaving Deputy Attorney General Todd Blanche as Acting Attorney General. To remain consistent with court filings, this Preview refers to Bondi as Petitioner. 

    Analysis

    ADMISSIBILITY AND TEMPORAL REQUIREMENTS FOR EVIDENCE 

    Bondi argues that the government properly identified Lau as seeking admission to the United States when he returned to the country and appropriately paroled him. Bondi notes that immigration authorities at ports of entry determine whether aliens arriving in the U.S. are “clearly and beyond a doubt entitled to be admitted,” and if not, the government may either detain them or parole them to await removal proceedings. Bondi acknowledges that LPRs are usually understood to be admitted to the U.S. when they return from abroad, but Bondi asserts that Lau’s counterfeiting offense fits him into the INA’s exception to the presumption that returning LPRs need not seek admission into the United States. According to Bondi, Lau fits into the exception because he had committed his counterfeiting offense at the time of his return, even though he had not yet been convicted. Bondi further asserts that the Second Circuit erred in requiring the government to prove that they had clear and convincing evidence of Lau’s criminal offense at the time of Lau’s reentry into the United States. Bondi argues that the government only needs to show that it has clear and convincing evidence that an alien is inadmissible during removal proceedings, not at the time the alien seeks admittance. Bondi contends that the plain language of the INA does not limit the government to using evidence available at the time of an LPR’s reentry in removal hearings. Instead, Bondi argues, the congressional intent of the INA was to determine removability using only the evidence produced at a removal hearing. Bondi analogizes the use of evidence not available before removal hearings to granting diversity jurisdiction in a civil trial, which is established by citizenship at the time of the complaint’s filing. Bondi stresses that the government does not need to show that it had clear and convincing evidence that an LPR was inadmissible at the time he returned to the county, as long as it can present clear and convincing evidence at the time of removal proceedings. 

    Lau argues that DHS did not prove that Lau fell into an exception to the presumption that LPRs are already admitted at the time of reentry, and therefore the government should not have considered him to be seeking admission to the United States when he reentered. According to Lau, the government’s inability to prove Lau’s offense by clear and convincing evidence at the moment he reentered the country means that any immigration proceedings must proceed through a deportation avenue rather than through removal. Lau argues that the language of the statute refers to aliens “seeking an admission” in the present tense, indicating that the determination that an LPR is not admitted but instead seeking admission needs to happen when the LPR is at a port of entry. Lau maintains that this necessitates that the government have clear and convincing evidence that an exception applies at the time an LPR reenters, and if the evidence does not meet that threshold, the exception cannot apply. Lau argues that in cases where an exception cannot apply due to lack of evidence, the LPR must be admitted, and the government may only remove them through deportation. Lau further argues that historical practice of the government supports the view that DHS must fully assess whether noncitizens arriving at the border have committed a crime of moral turpitude. Lau asserts that when he reentered the United States, DHS only knew he was charged with a crime, for which he was presumed innocent until his guilty plea. Lau contends that since his charge was an unproven allegation, the government did not yet have clear and convincing evidence that Lau had actually committed a crime of moral turpitude. Therefore, Lau argues, the government had not met the evidentiary threshold to apply an exception to him and deny admission. Lau further contends that the government’s argument is circular, reasoning that the government paroled Lau for committing a crime before they showed that the crime was one for which a noncitizen could be paroled. Lau argues that by the government’s framework, immigration officials paroled Lau to give the government time to see if it had enough evidence to parole Lau, which is nonsensical. 

    JUDICIAL REVIEW

    Bondi argues that the Second Circuit lacked the authority to review DHS’s decision to parole Lau upon reentry. Bondi contends that regardless of whether Lau should have been paroled, he was in fact paroled and therefore was not admitted prior to removal proceedings. According to Bondi, the INA expressly states that DHS’s parole decisions are nonreviewable by the courts. Bondi asserts that the Second Circuit only had jurisdiction over the final removal order. Bondi argues whether DHS’s allowance of reentry was an admission or a parole is not a legal question available for review. Instead, Bondi asserts that Lau’s status as seeking admission at the time of reentry should have been treated as an established fact of the case, not as a question for review. Bondi points out that Lau has acknowledged that he was in fact paroled in his own filings. Bondi compares this situation to a hypothetical situation where an LPR was erroneously deemed admitted when they reentered the country. Bondi contends that in that hypothetical, a court would consider the admittance an established fact of the case, allowing the LPR to benefit from the mistake. 

    Lau argues that the Second Circuit had jurisdiction to review whether DHS had the authority to parole him. Lau asserts that the INA reserves the right of courts to exercise judicial review over questions of law in immigration proceedings. Lau asserts that while discretionary actions of DHS are non-reviewable, mixed questions of fact and law relevant to a discretionary decision are reviewable by the courts. Lau contends that whether the evidence satisfied the requirements of the exception to an LPR’s admitted status is a mixed question of law and fact and therefore is reviewable by the courts. Lau responds to Bondi’s argument that the decision to parole Lau was “purely factual” by asserting that, because the government had to apply the law to the facts of Lau’s criminal charges, it was not a “purely factual” decision. Lau further asserts that the final removal order is based on an admission procedure only available if he were eligible for parole, and therefore the courts must have ability to review that parole decision. Lau argues that the fact that he was paroled upon reentry cannot bind courts if that fact was based on improper procedure by DHS. 

    Discussion

    PRACTICAL CHALLENGES

    The Federation for American Immigration Reform (“FAIR”), in support of Bondi, argues that requiring immigration officers to meet a clear and convincing standard of proof at the border would prevent border agents from effectively screening people. FAIR emphasizes that the statutory framework efficiently allows immigration officers to screen entrants at the border without requiring a full criminal adjudication and conviction. FAIR further asserts that border screening usually takes place with a limited record and without reliable evidence available to immigration officers, which would generally prevent them from showing clear and convincing evidence that a lawful permanent resident has committed one of the enumerated crimes. Bondi likewise argues that immigration officers often cannot show clear and convincing evidence that an entrant has committed a crime because they do not have access to the files of state prosecutors. Bondi also points out that the volume of people seeking to enter the United States would prevent immigration officers from making thorough determinations about whether the government possesses clear and convincing evidence.

    The Asian American Legal Defense and Education Fund and several other immigration legal groups (“AALDEF et al.”), in support of Lau, argue that the determination of whether a lawful permanent resident is seeking admission based on prior criminal conduct can have extensive and life altering effects, and so should require clear evidence of criminal conduct. AALDEF et al. elaborate that the prior criminal conduct determination could result in detention in addition to revocation of their green card. AALDEF et al. point out that without a green card, a lawful permanent resident will not be able to secure a job, healthcare, housing, a bank account, or education. AALDEF et al. explain that if a lawful permanent resident is classified as seeking admission, they could be placed in detention even if charges against them are later dropped. AALDEF et al. also argue that, without requiring immigration officers to show clear and convincing evidence that a lawful permanent resident has committed a crime, entry determinations will become arbitrary and inconsistent.

    PUBLIC POLICY AND SAFETY

    Bondi argues that allowing the government to parole LPRs who are charged with a crime benefits them by allowing LPRs to prepare to defend themselves against the charges “from inside the United States,” and that upholding the lower court’s decision would prevent this practice. Bondi notes that without the possibility of parole, the government will be incentivized to initiate removal proceedings immediately and detain LPRs suspected of a crime, which would make it harder for them to organize their defense. FAIR asserts that allowing immigration officers to screen arrivals at the border without requiring clear and convincing evidence also protects safety and national security. FAIR argues that conditioning admission on conviction, rather than criminal charges, would allow aliens who pose significant public safety and national security concerns to be admitted to the U.S.

    The American Immigration Lawyers Association and the American Immigration Council (collectively “AILA et al.”), in support of Lau, argue that both admitting and paroling have the same effect on the government’s ability to prosecute the LPR on pending charges and give the LPR the same opportunity to defend themselves against such charges. AILA et al. highlight that parole was designed to allow otherwise inadmissible noncitizens into the country for prosecution, but LPRs can be prosecuted without parole. AILA et al. additionally refutes the notion that paroling LPRs like Lau actually benefits them because it delays removal hearings by pointing out that LPRs who do not fall into an exception are admitted and therefore already not at risk for removal. AILA et al. further argue that if the government is not required to show clear and convincing evidence that an LPR is eligible for parole, it would incentivize them to parole all LPRs instead of the standard admission process.

    Conclusion

    Authors

    Written by:    Matt Charles and Sam Schoenberg 

    Edited by:     Domnick Q. Raimondo

    Additional Resources