Justia Trademark Opinion Summaries

A Chinese citizen was admitted to the United States as a lawful permanent resident in 2007. In 2012, New Jersey charged him with trademark counterfeiting. While awaiting trial, he traveled temporarily to China. Upon his return to the U.S., a border officer, aware of his pending criminal charge, declined to treat him as already admitted and instead paroled him into the country pending the outcome of his case. After he pleaded guilty to the state charge in 2013, the government initiated removal proceedings, charging him as an applicant for admission who was inadmissible because of his conviction for a crime involving moral turpitude.An Immigration Judge found him removable on these grounds, and the Board of Immigration Appeals affirmed. The respondent sought review in the United States Court of Appeals for the Second Circuit. That court vacated the removal order, holding that unless border officers had “clear and convincing” evidence at the time of entry that the lawful permanent resident had committed the crime, the individual must be treated as already admitted. The Second Circuit concluded that the pending criminal charge did not constitute clear and convincing evidence, so the individual should not have been paroled but deemed admitted, and thus could not be removed on inadmissibility grounds.The Supreme Court of the United States reviewed the case and vacated the Second Circuit’s judgment. The Court held that the Immigration and Nationality Act does not require border officers to have clear and convincing evidence that a lawful permanent resident has committed a crime involving moral turpitude before treating the resident as an applicant for admission. The Court remanded the case for further proceedings, without deciding whether the underlying crime involved moral turpitude. View "Blanche v. Lau" on Justia Law

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