Tag Archive for: Clear and Convincing Evidence

Cyrus Mehta & Kaitlyn Box*

Blanche v. Lau: Will the Supreme Court Degrade the Rights of Lawful Permanent Residents?

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By Cyrus D. Mehta and Kaitlyn Box*

On April 23, 2025, the Supreme Court heard oral argument in Blanche v. Lau, a case that confronts the issue of whether the government, in seeking to remove a lawful permanent resident (LPR) who was paroled into the United States on the basis that he committed a crime involving moral turpitude (CIMT) under INA 212(a)(2) must prove that it possessed clear and convincing evidence of the crime at the time of the LPR’s most recent reentry. Mr. Lau, an LPR who had traveled outside the U.S. with a pending charge of third-degree trademark counterfeiting in New Jersey before being paroled into the country in 2012, argued that there is a presumption LPRs are already admitted when they reenter the U.S. after travel abroad. The government, on the other hand, asserted that Lau falls within an exemption to this presumption because he had already committed a crime at the time of his reentry, although he had not yet been convicted.  Under INA 101(a)(13)(C) an LPR shall not be regarded as seeking admission in the US if they have inter alia committed an offense identified in section 212(a)(2), which includes crimes involving moral turpitude or drug offenses. 

The conservative justices seemed to largely agree with the government’s position, although Justice Jackson expressed concern about the implications of this position, stating: 

“And my concern is that I could actually see a world in which [bad-faith paroling] would be in the government’s interest. And it’s a situation in which people who are lawful permanent residents who have green cards leave the country and, when they return, based on a suspicion or even an indictment that’s in the government’s control, they flag this person as being returning under parole as opposed to lawful admission. They take this person’s green card, which then makes it much, much harder for this person to actually live and work and continue in their life here in the United States, perhaps so much so that this person self-deports because it’s really, really difficult without a green card to operate in this country. So you could imagine a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration.”

If the Supreme Court sides with the government in Blanche v. Lau and decides that an LPR who is accused of committing a crime and paroled into the U.S. has not already been admitted, this power could be abused by the Trump administration, which has already evidenced an intent to erode the rights of LPRs. This is exactly the sort of abuse that Justice Jackson appeared troubled by in her colloquy during oral argument. By taking the position that an LPR is seeking admission rather than arguing that the individual is deportable, the government can more easily pursue removal. In order to remove an LPR who was admitted, the government would have to show that the individual had been “convicted of a crime involving moral turpitude committed within five years” of the admission. The government must have clear and convincing evidence in order to determine that an LPR is seeking admission after having committed a crime under INA 212(a)(2), and that burden should only be met if the LPR has actually been convicted of the crime involving moral turpitude, or has admitted to the elements of the crime. 

An LPR can voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K–, 7 I&N Dec. 594 (BIA 1957).  The Board of Immigration Appeals also held in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the  standard in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. This has also been more recently affirmed by the Board of Immigration Appeals in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). 

As the late Justice Ginsburg observed in Vartelas v. Holder, 566 U.S. 257 (2012), “[o]rdinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.” Piepowder, or “dusty feet courts”, as Justice Ginsburg’s decision notes, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in medieval Europe while the merchants’ feet were still dusty. 

Justice Ginsburg’s observation appears to restrict a CBP officer’s ability to try to suspect that an LPR has committed a crime rather than been convicted or one or admitted to the elements of the crime. The CBP officer should also not be able to extract a confession.  The U.S. Court of Appeals for the 2nd Circuit’s holding in Blanche v. Lau was much more in line with Justice Ginsburg’s reasoning. The 2nd Circuit held that the INA does not permit “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 2nd Circuit reasoned that 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…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.” Unlike the merchants of old, a CBP officer cannot set up a piepowder court at the airport to bludgeon a weary LPR traveler into admitting to having committed the elements of a CIMT absent clear and convincing evidence. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

The Inappropriateness of Finding Abandonment of Lawful Permanent Residency During Naturalization

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On November 18, 2020, U.S. Citizenship and Immigration Services (USCIS) updated policy guidance to clarify the circumstances when the agency would find applicants ineligible for naturalization because they were not lawfully admitted for permanent residence. “Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law,” USCIS said.

The update also clarifies that USCIS reviews whether an applicant has abandoned LPR status when it adjudicates a naturalization application. If an applicant does not meet the burden of establishing maintenance of LPR status, USCIS said it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA). The update also provides that USCIS generally denies a naturalization application “filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.”

The updated policy guidance does not break new ground.  USCIS has always rendered applicants ineligible for naturalization after it finds that they were not lawfully admitted for permanent residence. One example is if the applicant made a misrepresentation while applying for a tourist visa many years ago and failed to disclose this fact when filing the I-485 application for adjustment of status along with the submission of a waiver to overcome this ground of inadmissibility under INA 212(a)(6)(C)(1).

What is more troubling about this new guidance is that it incentivizes USCIS to find that lawful permanent residents may have abandoned that status previously even though Customs and Border Protection (CBP) may have admitted them into the United States. A naturalization applicant may have  at some point in the past been outside the US for more than 180 days, and then admitted by CBP into the US. Even if the LPR remained outside the US for over a year, as a result of inability to return to the US due to Covid-19, the LPR may still be admitted into the US.  The new guidance now encourages naturalization officers to investigate whether the applicant may have abandoned LPR status regardless of the length of prior trips abroad, even if the trips abroad were for less than 180 days. Indeed, the guidance encourages naturalization examiners to overrule a determination that CBP made at the time of the LPRs admission into the US. At that point in time, the government had a very heavy burden to establish that the LPR had abandoned permanent residence.

Under INA 101(a)(13)(C), LPRs shall not be regarded as seeking admission into the United States unless, inter alia, they have abandoned or relinquished that status or have been absent from the US for a continuous period in excess of 180 days.

It has historically been the case that when an applicant for admission has a colorable claim to lawful permanent resident status, the burden is on the government to show that they are not entitled to that status by clear, unequivocal and convincing evidence. This standard was established by the Supreme Court in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. Subsequent to Woodby, in Landon v. Plasencia, the Supreme Court held that a returning resident be accorded due process in exclusion proceedings and that the Woodby standard be applied equally to a permanent resident in exclusion proceedings.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) introduced the notion of “admission” in INA §101(a)(13)(C).  “Admission” replaced the pre-IIRIRA “entry” doctrine as enunciated in Rosenberg v. Fleuti,  which held that a permanent resident was not considered making an entry into the US if his or her departure was “brief, innocent or casual.” Under §101(a)(13)(C), an LPR shall not be regarded as seeking admission “unless” he or she meets six specific criteria, which include the permanent abandoning or relinquishing of that status or having been absent for a continuous period in excess of 180 days. Fleuti has been partially restored in Vartelas v. Holder with respect to grounds of inadmissibility that got triggered prior to the enactment of IIRIRA.  Moreover, the returning permanent resident who returns from a trip abroad that was more than 180 days would be treated as an applicant for admission under INA 101(a)(13)(C)(ii), and thus vulnerable to being considered inadmissible. INA 240(c)(2), also enacted by IIRIRA, requires an applicant for admission to demonstrate by “clear and convincing evidence” that he or she is “lawfully present in the US pursuant to a prior admission.”   INA 240(c)(2) places the burden on an applicant for admission to prove “clearly and beyond doubt” that he or she is not inadmissible.  On the other hand, with respect to non-citizens being placed in removal proceedings, INA 240(c)(3), also enacted by IIRIRA, keeps the burden on the government to establish deportability by “clear and convincing” evidence.

Notwithstanding the introduction of INA 101(a)(13)(C), as well as INA 240(c)(2) and INA 240(c)(3),  the Woodby standard still prevails and nothing in 101(a)(13)(C) overrules it, and the burden of proof is still on the government through clear, convincing and unequivocal evidence that LPR has lost that status. See Matadin v. Mukasey.  This was further established in 2011 by the Board of Immigration Appeals in Matter of Rivens, which held:

Given this historical practice and the absence of any evidence that Congress intended a different allocation of standard of proof to apply in removal cases arising under current section 101(a)(13)(C) of the Act, we hold that the respondent – whose lawful permanent resident status is uncontested – cannot be found removable under the section 212(a) grounds of inadmissibility unless the DHS first proves by clear and convincing evidence [footnote omitted] that he is to be regarded as an applicant for admission in this case by having “committed an offense identified in section 212(a)(2).

Although in Matter of Rivens, the BIA acknowledged that the language in INA 240(c)(3) indicated “clear and convincing” evidence rather than “clear, convincing and unequivocal” evidence as in Woodby, the BIA has not had occasion to determine that the deletion of one word “unequivocal” has  effected a substantial change to the standard.

Additionally, in cases involving the abandonment of permanent residence, it is not the length of the absence that is determinative but whether it was a “temporary visit abroad” pursuant to INA 101(a)(27)(A). The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts that requires a searching inquiry of the purpose of the trip, thus making it harder for the government to find that the LPR abandoned that status even if the trip abroad was for an extended period of time in addition to the high burden of proof that the government is required to meet under Woodby. The Ninth Circuit’s interpretation of “temporary visit abroad”  in Singh v. Reno is generally followed:

A trip is a “temporary visit abroad” if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. If as in (b) the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

The Second Circuit in Ahmed v.Ashcroft, with respect to the second prong, has further clarified that when the visit “relies upon an event with a reasonable possibility of occurring within a short period to time…the intention of the visitor must still be to return within a period relatively short, fixed by some early event.” The Sixth Circuit in Hana v. Gonzales held that LPR status was not abandoned where LPR was compelled to return to Iraq to resume her job and be with her family while they were waiting for immigrant visas to materialize.

Although the USCIS guidance to naturalization examiners cites these and other cases regarding abandonment of LPR status, this determination was already made by the CBP at the time of the applicant’s admission when the burden was on the government to establish through clear and convincing evidence that the LPR had abandoned that status. Since presumably the government did not meet this burden then, the LPR was admitted into the US.  It is inappropriate to empower the USCIS through new policy guidance to once again meet this burden after the fact in a naturalization interview. It is one thing to investigate whether an applicant was ineligible for LPR status at the time of receiving it based on a ground of inadmissibility (e.g. fraud or misrepresentation) that was not overcome, but it is quite another to waste government resources to require USCIS to meet its heavy burden again regarding abandonment of LPR status during naturalization.  If the USCIS wants to retain guidance regarding finding abandonment in a naturalization interview, it can be narrowed, which the Biden administration may wish to consider, in circumstances where naturalization may be denied when it is readily obvious that the applicant is no longer a permanent resident. This may apply to one who was once an LPR as  the unsuccessful plaintiff in Biglar v. Attorney General, departed the US over a period of several years and then was subsequently admitted in B-2 visitor status, after which the applicant applies for naturalization. The Eleventh Circuit held that Biglar had abandoned his LPR status even though he sought to renew his green card after he was admitted into the US in B-2 status. Except for these unusual facts, the USCIS should not be investigating abandonment based on any and every absence especially when the CBP admitted the applicant as an LPR after being aware of the length of that absence from the US.

While the government will argue that the burden is on the applicant for naturalization to establish his or her eligibility, see Berenyi v. INS, the guidance also instructs the USCIS to initiate removal proceedings against LPRs who have been deemed to abandon their status. While in removal proceedings, applicants must insist that the government continue to meet its heavy burden through clear and convincing evidence to demonstrate that they abandoned LPR status, and this burden becomes doubly difficult when USICS is required to second guess a CBP officer’s determination regarding an LPRs admission several years later in a naturalization interview.

The new guidance has been introduced by the Trump administration to create a chilling effect on potential applicants on naturalization based on past travel abroad.  The Biden administration should immediately revise the guidance on January 20 or shortly thereafter.