130 F.4th 42
2d Cir.2025Background
- Muk Choi Lau, a native of China, became a lawful permanent resident (LPR) of the U.S. in 2007 after multiple prior visits on a nonimmigrant visa.
- In 2012, Lau was charged with third-degree trademark counterfeiting in New Jersey and left the U.S. temporarily while charges were pending.
- Upon return, Lau was paroled into the U.S. for deferred inspection by immigration officers, who treated him as an applicant for admission rather than as a returning LPR due to his pending criminal charge.
- Lau was later convicted of trademark counterfeiting and sentenced to probation.
- Removal proceedings were initiated against Lau on grounds of inadmissibility due to a crime involving moral turpitude (CIMT), and he was found ineligible for a discretionary waiver due to insufficient residency.
- Both the Immigration Judge (IJ) and Board of Immigration Appeals (BIA) upheld Lau’s removal; Lau then petitioned for review, contesting his classification as an arriving alien and his ineligibility for relief.
Issues
| Issue | Lau's Argument | Government's Argument | Held |
|---|---|---|---|
| Was Lau properly classified as an applicant for admission on return? | He should be treated as a returning LPR absent conviction | DHS could treat him as applicant for admission due to pending charge | Court held he could not be classified as applicant for admission absent proof he had committed a CIMT at time of entry |
| Did his trademark counterfeiting conviction constitute a CIMT? | (Did not reach this issue) | Conviction is a CIMT | Not addressed—court resolved case on admission status grounds |
| Did he qualify for the petty offense exception? | (Did not reach this issue) | Offense did not meet exception requirements | Not addressed—court resolved case on admission status grounds |
| Was he eligible for a 212(h) waiver? | Nonimmigrant visa time counts toward residency | Only LPR time counts, not nonimmigrant visa time | Not addressed—court resolved case on admission status grounds |
Key Cases Cited
- Centurion v. Sessions, 860 F.3d 69 (2d Cir. 2017) (addressed when legal consequences attach to commission vs. conviction of a CIMT for LPR readmission)
- Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013) (clarifies de novo judicial review of BIA statutory interpretation)
- Lin Zhong v. U.S. Dep't of Just., 480 F.3d 104 (2d Cir. 2007) (limits review to issues forming the basis of final agency determination)
- Obeya v. Sessions, 884 F.3d 442 (2d Cir. 2018) (court may grant petition on one ground without deciding alternative arguments)