Justia Trademark Opinion Summaries

Lau, a native and citizen of China, was charged with third-degree trademark counterfeiting in New Jersey. While awaiting trial, he left the United States and upon his return, he was paroled for deferred inspection by immigration authorities. Lau was later convicted and sentenced to probation. The Department of Homeland Security (DHS) initiated removal proceedings against him, asserting he was inadmissible due to his conviction for a crime involving moral turpitude (CIMT).An Immigration Judge (IJ) 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). The IJ concluded that Lau’s conviction constituted a CIMT, did not qualify as a petty offense, and that he was properly classified as an applicant for admission upon his return. The IJ also determined that Lau did not meet the continuous residency requirement for a 212(h) waiver. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision, agreeing with the findings and dismissing Lau’s appeal.The United States Court of Appeals for the Second Circuit reviewed the case. The court held that DHS improperly classified Lau as an applicant for admission when he returned to the United States while his criminal charge was pending. The court found that a pending charge does not provide clear and convincing evidence of a CIMT necessary for DHS to consider an LPR an applicant for admission. Consequently, the court granted Lau’s petition for review, vacated the final order of removal, and remanded the case to the agency with instructions to terminate removal proceedings against Lau based on his inadmissibility under section 1182(a), without prejudice to any future deportation proceedings. View "Lau v. Bondi" on Justia Law

Petitioner, a native and citizen of Mexico, petitioned for review of the BIA's decision dismissing his appeal from an IJ's order finding him removable and denying his application for cancellation of removal. Petitioner challenged the BIA's finding that his six convictions for "willfully manufacturing, intentionally selling, and knowingly possessing for sale more than 1,000 articles bearing a counterfeit trademark," in violation of California Penal Code 350(a)(2), constituted an aggravated felony as an "offense relating to... counterfeiting." Petitioner also maintained that the generic offense of counterfeiting referred only to the imitation of currency and that this conviction under section 350 did not require proof of his intent. The court held that the definition of aggravated felony extended to convictions for the unauthorized imitation of trademarks. The court also rejected petitioner's remaining argument that section 350 did not incorporate "an intent to defraud" as an essential element of the offense because "[t]he commission of the crime necessarily defrauds the owner of the mark, or an innocent purchaser of the counterfeit items, or both," and the court had "difficulty distinguishing such intent from a general intent to defraud[.]" Accordingly, the petition for review was denied. View "Rodriguez-Valencia v. Holder, Jr." on Justia Law