Blanche v. Lau · ¶78

My view of §1101(a)(13)(C) would not require the border officer and the LPR to litigate the merits of any pending criminal charges at the border. Often, as here, an LPR will not challenge a border officer’s decision to deem him to be “seeking an admission” until the removal hearing. In such circumstances, the dispute regarding whether the LPR satisfied the exception at the time he was paroled will unfold in front of the immigration judge, whose task will be to determine, in retrospect, whether the border officer’s decision was lawful. The practical delta between my view and the majority’s is that I do not agree that the Government can proffer post hoc evidence—such as the LPR’s subsequent conviction—to support the determination the border officer made when the LPR returned from his travels. Keeping to the most natural reading of §1101(a)(13)(C) would not cause a breakdown in border…

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