We will hear argument this morning in Case 25-429, Blanche versus Lau. Mr. Joshi. ORAL ARGUMENT OF SOPAN JOSHI ON BEHALF OF THE PETITIONER
“This is a purely procedural, administrative statement announcing the case and inviting counsel to begin oral argument. It contains no emotional valence, questioning, or evaluative content whatsoever.”
Mr. Chief Justice, and may it please the Court: When Respondent arrived in the United States in June of 2012, he had, in fact, already committed a crime involving moral turpitude. That meant, under the INA, he was, in fact, seeking an admission and thus was, in fact, eligible for parole and correctly charged with inadmissibility. And what's more, the government proved everything I just said by clear and convincing evidence in Respondent's removal proceedings. Yet Respondent now seeks to vacate his removal order on the ground that immigration officers at the airport in June of 2012 did not themselves in that moment possess that clear and convincing evidence. 1 That makes no sense. Burdens of proof and evidentiary burdens are things that apply in adversarial proceedings before a decisionmaker, not at the airport, where non-lawyer immigration officers are processing hundreds, maybe thousands, of arrivals a day. Unsurprisingly, Respondent has identified no text, no historical practice, and no precedent imposing an at-the-border clear-and-convincing evidentiary requirement. Instead, Respondent largely focuses on a distraction. He says that DHS immigration officers can't parole him without first determining that he's seeking an admission. We agree, and officers did that here, just not with the clear and convincing evidence that he prefers. So Respondent's argument really just begs the question in this case. Similarly, he says the clear and convincing evidence that DHS presented in the removal proceedings amounts to post hoc justification. But, again, that assumes the conclusion that the border officers needed clear and convincing evidence in the first place. 1 Now we have other arguments that parole decisions are not reviewable and that even an incorrect parole can't be treated as an admission. You don't have to reach those. Respondent's failure to establish his at-the-border clear-and-convincing evidentiary requirement dooms his case and is sufficient on its own to reverse the judgment below. I welcome the Court's questions.
I know you -- you're making a distinction between the clear and convincing at the border as opposed to at the hearing, but where does clear and convincing come from? Is it in the INA?
“The Justice acknowledges understanding the distinction being made but then probes the legal source of the 'clear and convincing' standard, asking directly whether it appears in the INA. This is primarily a clarifying question seeking the statutory basis for counsel's argument, with some skepticism as it implicitly challenges whether the standard has a firm textual foundation.”
No. It is a board decision that has determined that because the INA requires an applicant for admission to establish admissibility by clear and convincing evidence but, on the other hand, requires the government to establish deportability by clear and convincing evidence, the board has sort of looked at those and decided that the threshold question about which one of those two paths it should go down is the government's burden and said clear and convincing seems to be the right 1 standard. And we've accepted that for purposes of this case.
But it's not in the statute itself?
“The 'But' opener signals mild skepticism or pushback, suggesting the Justice is probing whether counsel's argument relies on something outside the statutory text. The question is also partly clarifying, seeking confirmation of a factual point about the statute's content, but the 'But' framing implies doubt about the argument's textual basis.”
The -- it's not directly in the statute.
So has the board applied that standard at the border?
“The question probes whether the board has actually applied the argued standard in border cases, suggesting both a genuine inquiry into factual application and mild skepticism about whether the standard has been consistently used in practice.”
No, never. In fact, the board was quite clear in Valenzuela-Felix that it does not apply at the border. It rejected the precise argument that Respondent is making here today.
Counsel, the statute says an alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the U.S. unless the alien has done one of six things, okay? So it's not an alien seeking admission unless it's done one of those six things. So the question becomes if the U.S. meets -- decides that there's a possibility that any group of aliens might have a conviction or might be -- have committed a 1 crime of moral turpitude. The basis for that? Well, for any reason the government can think of, okay, and just willy-nilly paroles LPRs, people with green cards, into the U.S. and says we're just not going to let you be admitted. We're going to take away your green card, you're going to get it stamped -- a stamped card with temporary admission. Is that reviewable?
“The Justice is constructing a troubling hypothetical scenario about the government arbitrarily paroling LPRs and stripping them of their green card status, expressing clear concern about the implications of the legal framework. The 'willy-nilly' language and the rhetorical buildup to 'Is that reviewable?' signals both concern about government overreach and skepticism about where the statutory interpretation might lead.”
Eventually, if removal proceedings are initiated, the -- it is -- the government will have to show by clear and convincing evidence that, in fact, one of those six criteria applied.
So this statutory command is meaningless at the border?
“The rhetorical question directly challenges petitioner's argument by implying an absurd or unacceptable consequence — that a statutory command would be rendered meaningless — which is a classic skeptical probe. The sharp, compressed phrasing carries a slightly hostile edge but is primarily aimed at exposing a logical weakness in counsel's position.”
Aliens who possess a green card will be considered applicants for admission at the whim of the government?
“The phrase 'at the whim of the government' signals strong concern about unchecked executive discretion and its implications for green card holders, while the rhetorical framing also reflects skepticism toward the government's position, suggesting the Justice finds the consequence troubling and legally suspect.”
I don't think that's quite correct. First of all --
Why? Because, if what you're saying to me is that the law saying that they're entitled to come in and be removed 1 under 1227 as opposed to 1182 doesn't apply, why bother with the statutory assumption?
“The Justice is pressing counsel on a logical inconsistency in their argument — specifically challenging why the statutory assumption matters if the distinction between 1227 and 1182 doesn't apply. The 'Why bother?' framing signals skepticism about the coherence of the argument, though there is also some clarifying intent in unpacking the reasoning.”
So I don't think that it's just at the whim. First of all, there's a --
No, no, I don't think it's at the whim. But my point is, still remains, if it's not reviewable, it can be.
“The Justice is pushing back on counsel's framing ('No, no') while maintaining a core concern about the consequences of unreviewability — specifically that without judicial review, arbitrary action becomes possible. This combines mild hostility in the dismissal with substantive concern about systemic implications.”
It -- and what I'm saying is that that -- the determination about whether the LPR, in fact, satisfied one of those six criteria in the -- in the statute is decided afresh by the immigration judge --
-- in removal proceedings --
What's the difference between 1184 and 1227? You can remove an LPR who has been convicted of a crime of moral turpitude under 1227. So why do you need 1184?
“The Justice is probing the logical necessity of §1184 given that §1227 already provides removal authority for LPRs convicted of crimes of moral turpitude, suggesting the petitioner's argument may be redundant or flawed. This is primarily skeptical questioning challenging the utility of the statutory provision being argued, with some clarifying intent to understand the distinction.”
No, I -- I understood. Respondent happens to be removable 1 under both. But there is an important difference in not just crimes involving moral turpitude but others. But, for the crimes involving moral turpitude in particular, an alien is inadmissible if he commits such a crime at any time after admission but is deportable only if he commits such a crime within five years after his admission. Now the happenstance is Respondent happened to have committed his crime four years and six months after admission. So it turns out, by happenstance, we're lucky in Respondent's case that it doesn't matter. But that's not going to be true of other LPRs. In addition, there are many other differences between admissibility and deportability. Let me give you one example that doesn't apply here but applies to a lot of cases, and that is drug-trafficking offenses. To be deportable under 1227, there's got to be a conviction. It's only commission under 1182 for inadmissibility. And I know what you're thinking, the -- the difference between commission and conviction, but that's not the reason it's so 1 important to us, because, generally, we wait for the conviction before trying to remove them. The reason it's important is the categorical approach. Because 1227 requires the conviction, there are a lot of state offenses where their list of controlled substances is slightly broader than the federal list of controlled substances. So convictions we can't rely on. But commission we can because we can say, oh, it was actually cocaine, not this, like, esoteric --
Well, I guess the problem I'm having is LPRs have a legal right to be here. They have a legal right to come back into the country. And Congress is the one who deems the situations in which that right should be taken away from them. So why should it matter? Meaning, why should a temporary removal take away their constitutional right to have that judgment decided under 1227 as opposed to under 1182?
“The Justice is probing the petitioner's argument by highlighting the legal rights of LPRs and questioning why a temporary removal should strip them of constitutional protections under a different statutory framework. The phrase 'the problem I'm having' signals skepticism toward the petitioner's position, while the underlying worry about constitutional rights being diminished suggests concern about the implications.”
So, first, it is not a constitutional right to be deported rather than deemed inadmissible.
It is -- you're 1 right. It's a statutory right.
“The Justice is explicitly agreeing with counsel's characterization ('you're right'), confirming that the right in question is statutory. This is a direct affirmation of counsel's point, though the brief and somewhat procedural nature of the statement tempers the approval rating.”
But -- but they have that statutory right. So why should that right be taken away?
“The Justice is pushing back on the petitioner's argument by emphasizing that a statutory right exists and challenging why it should be overridden, signaling skepticism toward the petitioner's position. The rhetorical framing ('why should that right be taken away?') also reflects concern about the implications of removing an established legal protection.”
So I just want to be clear, if there -- if -- when removal proceedings are initiated and the government says we can remove under 1182 as opposed to 1227, the government will have to prove that that is, in fact, the correct choice by clear and convincing evidence.
But, Mr. Joshi, I guess --
“This is an incomplete utterance that appears to be an interruption or interjection mid-argument. The 'I guess' phrasing suggests a tentative, clarifying or transitional nature rather than strong sentiment, making neutral and clarifying the most likely classifications with some engagement possible.”
Mr. Joshi, what happens in the meantime then? Because this really, as -- as I understand, allows Mr. Lau's argument. It is about timing, whether it has to happen at the border or whether it would happen in the removal proceeding, this threshold determination. What is the consequence for an LPR that is paroled? Do they lose some sort of rights because they have this flag on their status until the removal proceeding begins?
“The Justice is probing the practical consequences for LPRs during the interim period, showing genuine concern about the real-world impact of the timing distinction while also seeking clarification on how the procedural mechanism would work. The question acknowledges both sides' arguments and explores potential harm to affected parties.”
No. Parole maintains the alien's status. The LPR remains in LPR status. I know that some of Respondent's amici say that, you know, the -- the temporary I-551, which is the temporary green card, is not as convincing to employers as a permanent green card. But, in the eyes of the law, it's identical status. In fact, even the temporary green cards, they -- they tend to say expires after one year, we don't think that expiration means anything. They're still an LPR all the same.
So why -- why are their green cards --
“This appears to be an interrupted question seeking clarification about green cards, likely mid-thought. The fragmented nature suggests a genuine inquiry or clarifying question rather than skepticism or hostility.”
So -- I'm sorry, I'm not quite finished. So you think there's practical consequences, but, as a matter of law, there's no legal consequence. The determination is still going to happen. What -- what is the length of time typically between paroling and then the initiation of removal proceedings?
“The Justice is seeking factual clarification about procedural timelines while also probing the legal/practical distinction the counsel made. The interruption recovery ('I'm sorry, I'm not quite finished') suggests the Justice is actively working through the argument, combining genuine clarification about the length of time between parole and removal proceedings with mild skepticism about the claimed legal consequences.”
It -- it depends. So, typically, what happens -- and as a matter of 1 practice, I think this is pretty uniform -- is when an LPR is paroled for a deferred inspection or prosecution --
-- as in this case, they're instructed to report to a deferred inspection station, which is a different location, in 30 days. And then, when they -- just to evaluate what's going on, and then there will be periodic check-ins, rarely if ever longer than 90 days. But it'll basically be tied to the pending criminal proceedings, and they'll just check in and say, okay, we're at pretrial discovery, we're at -- you know, now trial is expected to be at this time or the other, and we'll typically just wait until the proceedings have finished. I think this case is probably fairly typical. They tend to close out within about a year if there's a pending charge, you know, speedy trial and all of that. But that's fairly typical.
Mr. Joshi, you suggest that there's no difference, but I'm -- 1 I'm wondering then why is the green card removed from the person if they are paroled?
“The Justice is directly challenging counsel's claim that there is 'no difference,' using a specific factual observation (green card removal upon parole) to probe the weakness in the argument. This is primarily skeptical in nature, though it also carries a genuine clarifying element as the Justice seeks an explanation for the apparent inconsistency.”
I don't know the answer to that.
All right. So, obviously, the government is doing something to parolees. They're giving them a different card than the one they had. And we have amici that say that without the permanent card, which the person previously had, there is real uncertainty about their status as a practical matter, that their employment becomes tenuous, that their schooling, there's -- I'm referring to the brief of the Asian American Legal Defense and Education Fund. So we have those practical difficulties. And then I'm wondering, doesn't parole status then put the person in a category that they are eligible for removal, whereas, if they had been admitted, then, based on a subsequent conviction, the government would have had to deport them, and the burdens are different with respect to removability versus deportability, isn't that right?
“The Justice expresses clear concern about the practical difficulties parolees face—citing amici briefs about employment and schooling—and raises a substantive legal distinction between removability and deportability, suggesting worry about the real-world and legal consequences of the government's treatment of parolees. There is also some intellectual engagement in exploring the legal framework.”
Yes. So if I could answer 1 both of those questions.
I mean, that's a legal consequence that does -- it does matter whether you're brought back in as a parolee or you're admitted as a legal -- a lawful permanent resident.
“The Justice is pushing back on the petitioner's argument by emphasizing that the legal distinction between parole status and lawful permanent resident status carries real consequences, suggesting skepticism toward any argument that would collapse or minimize that distinction. There is also a clarifying element as the Justice is articulating the legal framework to ensure the issue is properly framed.”
If you're paroled, it's as if you're still standing at the border. So, yes, it keeps open the possibility of removal on inadmissibility grounds, in addition to deportability grounds.
Okay. So it does make a difference. And so the question then becomes, looking at the statutes that Justice Sotomayor pointed out, if a lawful permanent resident under the statute is supposed to be brought in or let in as admitted unless six different possibilities for turning that person into a parolee rather than an admitee, I'm wondering why the government's position is that the determination of any of those six categories doesn't have to happen at the time in which the border person is making a determination about this person's admissibility. 1 I think your argument is, at some point later in the future, we can decide whether or not the person fits into one of those six categories. But it would seem to me that that would -- that's a prerequisite to the initial assessment as to whether or not they come in as admitted or they come in as a parolee, which we've determined makes a difference.
“The Justice is probing a significant weakness in the government's position by pointing out that the six statutory categories appear to be prerequisites to the initial admissibility determination, directly challenging the government's argument that such determinations can happen later. The structured, logical dismantling of the government's position and the phrase 'I'm wondering why' signals skepticism, though the Justice also engages substantively with the statutory framework.”
Yes. So I want to tease out two concepts here. You said we can decide at a later time whether he fits into one of those six categories. That's not quite right. We decide in the removal proceedings -- rather, the immigration judge decides in the removal proceeding as the government burden to prove that the alien in the past fit, past tense, into one of those six categories, so we're --
I understand, but -- but timing matters because, at the border, you're making the determination as to whether or not this person comes in under the lawful permanent resident admitted status or whether they're coming in as a parolee. And if that decision turns on the 1 assessment of the six categories, I would think it would have to be done at that time.
“The Justice is pushing back on counsel's timing argument with a logical counter-reasoning ('timing matters because...'), indicating skepticism about when the assessment must occur. The phrase 'I would think it would have to be done at that time' signals the Justice is testing the argument's coherence while also genuinely working through the procedural implications, blending skepticism with intellectual engagement.”
Yes, but not with clear and convincing evidence. That's a thing that applies in removal proceedings before a neutral decisionmaker.
So what is the standard at the time?
“This is a straightforward request for factual or legal information about what standard applied at a given time. The phrasing 'what is the standard' is a direct, neutral inquiry seeking clarification rather than challenging or probing the argument's weaknesses.”
So let me give you three -- a three-part answer to that. The first is I'm going to tell you that we don't think there is a standard. The second is I'm going to say, if you insist on one, what it is, and it's going to involve satisfaction of -- satisfactory evidence to the border officer. And then the third, I'm going to try and respond to what I anticipate will be your response to my first two answers. (Laughter.)
Because -- because -- that would be because the first two won't sound very good? (Laughter.)
“The laughter response indicates this is a witty, playful remark suggesting the Justice is engaging with some irony or humor about the counsel's argumentation strategy—implying the first two arguments are weak—but delivered in a light, engaging rather than hostile manner.”
No, they'll -- they'll -- they'll sound fine. They'll just lead to a 1 point that some of the amici, Respondent's amici, make. So my first point is that burdens of proof are just not something we think about as applicable in a border environment where an officer -- as I -- as I said, it's typically an adversarial proceeding with the decisionmakers where you have burdens of proof. If you take away one of the adversaries, we typically don't talk about burdens of proof. We say, like, prima facie case or something, and if you --
Can I just -- can I stop you for a second, though, because you're -- you're -- you're caught up in assessing whether or not there's a burden of proof. I'm just trying to understand how the border officer is to make the determination that this person is let in as a lawful permanent resident versus a parolee.
“The Justice interrupts to redirect counsel away from their current argument track, explicitly stating they are 'just trying to understand' the practical mechanism for border officers — a genuine clarifying question about how the procedure works. The interruption adds mild skepticism that counsel is not addressing the core practical question, but the dominant intent is clarification.”
And whether we call it burdens of proof or what -- you know, fine, and we don't think about it in those terms, but they have to have some standard, and what is it?
“The Justice is pressing counsel to articulate a clear standard, showing mild skepticism that one hasn't been provided while also genuinely seeking clarification. The phrasing 'fine, and we don't think about it in those terms' suggests some dismissiveness toward the framing while still probing for a workable answer.”
Okay. So I'll jump to my second point then, which is the standard is we think, because the INA doesn't speak directly to this issue or impose any kind of burden, the standard would be the same standard that is longstanding and traditional in immigration law, even predating the INA, going back a century or more, which is, when the sovereign controls who enters the country at the border, it's the person arriving has to establish to the satisfaction of the officer that they're entitled to be let in. This Court in Sing Tuck, I think it's a 1904 case, used the word "satisfactory." The INA codifies this principle in places, I think Section 1361 it says "establish to the satisfaction of the border officer." Our regulations, 235.1, that we cite --
Okay. And this person --
“This is a very brief, interrupted utterance ('Okay. And this person --') that appears to be mid-question, suggesting the Justice is following along and about to ask a clarifying or exploratory question. The 'Okay' acknowledgment is procedural/neutral, and the truncated follow-up indicates standard engagement in dialogue.”
Well, Mr. Joshi, you're --
“This is a very brief, incomplete utterance that appears to be an interruption or interjection directed at counsel. The truncation suggests the Justice is cutting in, which can signal mild hostility or redirection, but without more content it is largely neutral and procedural in nature.”
-- the person at the --
“This appears to be a mid-sentence fragment, likely an interruption or incomplete utterance with no discernible emotional valence. The dashes indicate it is cut off, making sentiment classification nearly impossible beyond a default neutral assessment.”
-- you're -- you're 1 swinging for the fences here. In this case, the Respondent was charged with a criminal offense at the time when he tried to reenter -- come back to the United States, is that correct?
“The phrase 'swinging for the fences' signals mild skepticism that the argument is overreaching, while the follow-up question seeking factual confirmation about the charge is genuinely clarifying. The combination suggests the Justice is probing whether the broad argument is warranted given the specific facts of the case.”
And the question that is before us is whether that had to be shown at the border by clear and convincing evidence.
“The Justice is restating or crystallizing the core legal question before the Court, which serves primarily as a clarifying function to frame the issue precisely. There is mild engagement as the Justice explores the contours of the evidentiary standard question, but no strong emotional valence is present.”
Whether the commission of the offense, yes.
Now the statute says "has committed." It doesn't say "may have committed." It also doesn't say "has been convicted," which is language that appears in a -- in the provision to which a cross-reference is made. But something has to be determined at the border, right? Now the Third Circuit said it's probable cause. You think that's too high?
“The Justice is carefully parsing statutory language ('has committed' vs 'may have committed' vs 'has been convicted') while acknowledging a middle ground must exist, then directly testing whether the petitioner's position on the Third Circuit's probable cause standard is too high. This reflects both genuine intellectual engagement with the statutory interpretation problem and probing skepticism about the petitioner's argument.”
I -- I don't -- I understand that the Third Circuit has said that and it has derived it from kind of due process avoidance. I don't know that it really makes sense to just pull probable cause out of the 1 air and import it. I think you just decided a case earlier this term in which you refused to just blindly impose probable cause on, I think it was warrantless searches for emergency aid. And -- and I think, you know, it -- that would certainly be better than the Second Circuit's rule, and we could, you know, certainly try and live with that. But I think the right answer is the background immigration rule of to the satisfaction. And let me, like, spell out --
Well, I mean, what -- so what if the immigration officer just says, you look very shifty, I think that you have committed a criminal offense, and, therefore, you -- you cannot be admitted, you're going to be paroled?
“The Justice is posing a hypothetical about an immigration officer making an arbitrary, pretextual determination ('you look very shifty'), which probes the weakness of the petitioner's argument by suggesting it could lead to unchecked discretion or abuse. This combines skepticism about the argument's logical limits with concern about its potential consequences if taken to an extreme.”
Yeah, that -- that would -- that would be wrong. That would be an officer acting in bad faith. But let me try and reassure you that you shouldn't have your interpretation of the INA turn on that kind of assumption, number one. Parole -- immigration officers, line officers, are not authorized to 1 grant parole. It has to be granted by the head of the port or a supervisor of a certain GS level. Second, as I was mentioning to Justice Barrett, parole -- this kind of parole requires a check-in at 30 days and periodic. Those are at separate stations manned by different officers. My understanding is it's usually rotating officers. So you would have to think that if this is going to be long-lasting or anything other than a very temporary defeasible decision made by one rogue officer, that's just not true, and you would have to think the entire agency is acting in bad faith. And more than that, you would have to think they're acting in bad faith in a way that imposes more work on themselves. I mean, if the LPR is clearly -- you know, clearly ought to be let in, DHS is not going to keep paroling him in bad faith --
-- when it requires their officers to do more work.
-- can I just ask you 1 a -- a practical question? And you may well not have this information, but, in practice, are -- are people treated the way Respondent was treated if they have not already been charged with a criminal offense? How would the immigration officer know that, let's say, someone is under investigation someplace?
“The Justice is asking a practical, real-world question about how the immigration system operates, acknowledging they may not get an answer. The question probes the practical implications of the rule at issue—how officers would know someone is under investigation without charges—blending genuine curiosity (engagement) with a desire for factual clarification about implementation.”
Yeah, as a practical matter, no, at -- at least not in clause 5, which is the one we've been talking about. You know, I can imagine a circumstance in clause 3 which says -- that's the one that says, if the LPR is engaged in criminal activity overseas, I think if there's, like, an Interpol alert, I think that's a circumstance where that's not even a charge; that's just law enforcement saying we think this LPR might have committed -- might have engaged in criminal activity overseas. We think that would be an adequate basis for the border officer to determine that the LPR engaged in criminal activity and therefore to parole him. If and when removal proceedings are launched, DHS, the government, is going to have to prove by clear and convincing evidence that, 1 in fact, at that time, the LPR did engage in the criminal activity overseas.
I guess what seems a little mysterious is that once you admit that much, that there is a clear and convincing evidence standard and that that standard is what applies not to the removal, right, it's what applies to the reentry so that the -- the -- the IJ at the removal proceeding is going to be thinking about this past question about how the person should have been classified at the reentry, once that becomes the appropriate inquiry or the -- the inquiry that's relevant in this case, why the standard shouldn't apply at the time that inquiry is, like, right in front of you when the person has reentered?
“The Justice admits something is 'mysterious' and probes the logical inconsistency in the petitioner's argument about when the clear and convincing evidence standard applies, suggesting skepticism about why the standard shouldn't apply at reentry itself. The hedging language ('I guess') and exploratory phrasing add some clarifying and engagement elements, but the core thrust challenges the internal logic of counsel's position.”
For the same reason that you don't apply the beyond a reasonable doubt standard at the indictment or at the filing of a criminal information. That's a standard that applies in the ultimate proceeding to determine ultimate innocence or guilt in the criminal case. And in the removal proceeding, the reason the IJ looks at it is --
Well, that would be true -- I -- I understand that, that if -- if that's the way you look at it, this is kind of the charging stage and that's the adjudication stage. But it does seem like the questions -- it -- it seems bizarre that the adjudication stage would sort of look back and ask the question about reentry. It's -- it's -- it's --
“The Justice uses the word 'bizarre' to signal doubt about the logical coherence of the argument's structure, indicating skepticism about how the adjudication stage would look back at reentry questions. The hesitant, trailing-off speech pattern ('It's -- it's -- it's --') suggests the Justice is working through a concern or objection, mixing skepticism with engaged intellectual wrestling.”
Usually, when we're talking about charging and adjudication, the ultimate question is the one that's decided at adjudication. You're not looking back to some prior question. Once you have to look back to some prior question, why aren't you just applying the standard there?
“The Justice is probing a tension in the petitioner's argument by pointing out that standard practice focuses on adjudication rather than looking backward to prior questions, suggesting the petitioner's framework may be internally inconsistent. The rhetorical structure ('why aren't you just applying the standard there?') signals skepticism about the logical coherence of the argument, though there is also some genuine intellectual engagement in working through the doctrinal framework.”
So two things. The first thing I'll say is you're not -- I -- I just want to be clear about this. The IJ is not reviewing the immigration officer's decision. The IJ is taking a fresh look at the evidence and determining whether, in fact, the LPR fit one of those six categories. So that -- that's number one. 1 Number two, the reason for that oddity is actually just, once you stare at the INA long enough, you realize that that has to be how it is because, number one, the INA says -- and this is 1229(a)(3) -- it's at page 5a of our opening brief -- that the removal proceedings, setting aside expedited removal, are the sole and exclusive procedure for determining admissibility or removability. And then later, it says -- and -- and earlier in (a)(1), it says that the immigration judge is determining whether he can be deported or removed. And then later, in (e)(2) -- this is at page 6a to 7a of our opening brief -- it defines "removable" in terms of in the case of an alien not admitted and in the case of an alien admitted. And it's that threshold thing which is actually part of the removability determination is what the IJ is doing. It just so happens in the case of an LPR in this circumstance that when the LPR comes in, he is admitted or not admitted depending on whether he satisfies one of these six exceptions. And parole, in that case, when the LPR is paroled, it's like 1 hitting a pause button and saying let's pause things. It's as if the line at Newark Airport took a year for him to get to the front of the line. And so it's just this weird confluence of things is why the IJ is looking backward in point of time, but it is not at all to, like, review the DHS immigration officer's decision. And that's why you don't apply the burden of proof at the airport. And it just really would be weird to do that because Congress, in IIRIRA, clearly wanted LPRs to be treated just like any other alien in these six circumstances. Congress surely knew that the border environment, where there are just hundreds, thousands of people a day -- I mean, to give you a sense of perspective, every year, approximately, actually, a little over, 8 million LPRs enter the United States, and those 8 million LPRs effect 40 million separate entries, so an average of five apiece. And it would sort of be unthinkable for Congress to think that the border officer in the moment, just with people coming through 1 the line, is going to have clear and convincing evidence without doing, in Justice Ginsburg's memorial phrase, you know, convening a -- a piepowder court.
Well, you would, though, wouldn't you? Because you could just check conviction records, and -- and -- and that's the way it would work. If somebody has already been convicted, you would be put in one pipeline. If the person had not already been convicted, you would be put in another pipeline. And, yes, would that miss some people maybe like the Respondent here, but, you know, close enough for government work.
“The Justice is actively working through the logical mechanics of how a conviction-record system would function, using a somewhat sardonic 'close enough for government work' phrase that signals mild skepticism about perfect coverage while also engaging constructively with the petitioner's framework. The tone is exploratory and intellectually curious but carries an undercurrent of skepticism about whether the proposed system adequately handles edge cases like the respondent.”
So I -- I don't think that's right because it would really undermine Congress's pretty considered choice to partially abrogate and expand upon the -- the -- and pull back, curtail, I should say, the Fleuti doctrine because Congress very clearly chose to say "committed an offense," not "is inadmissible under the provision." What's more, it happens that crimes involving moral turpitude and I think some 1 controlled substances offenses require a conviction or admission of guilt for inadmissibility, but most of the crimes do not. Drug trafficking, human trafficking, prostitution, they don't require a conviction. So too with the overseas criminal activity. You would really be gutting all six of these provisions and really just not giving effect to what Congress seemed to want to do really, really strongly in IIRIRA.
Thank you, counsel. Justice Thomas?
“This is a purely procedural statement — thanking counsel and yielding the floor to another Justice. It contains no emotional valence, questioning, or evaluative content whatsoever.”
Mr. Joshi, how was this -- the offense here determined at the border?
“This is a straightforward factual question seeking to understand the procedural mechanics of how the offense was determined at the border. The tone is purely clarifying, with mild engagement as the Justice seeks foundational information to frame further inquiry.”
At the border, it was because of the pending charge and --
No. Where was -- where was that? I mean, what did the border patrol have before him or her?
“The Justice is asking a factual question about what information the border patrol agent had, suggesting genuine curiosity about the evidentiary record. The 'No' at the start may indicate mild pushback or simply redirecting focus, but the core question is clarifying in nature, seeking to understand the factual basis of the argument.”
The immigration officer, searching a -- a -- a -- a federal database in which states can put in their criminal charges and things like that, searched that and found 1 the arrest and pending charge that Respondent was facing at that time.
And that basically said the offense had been committed by this person?
“The Justice is seeking to confirm their understanding of what a document or statement established, using confirmatory language ('basically said') to verify the factual record. This is a straightforward clarifying question aimed at ensuring accurate comprehension of the case facts.”
The border officer in good faith concluded that that was the answer, yes, in the same way that the prosecutor who filed the charge -- I mean, we always think this when prosecutors file charges or seek --
-- indictments, that the prosecutor in good faith believes I think you did it and I think I'm going to be able to prove to a jury that you did it. And the border officer is making exactly those same conclusions, and he's entitled to credit the prosecutor's --
Well, the only point I'm making is that it wasn't arbitrary. It came from a database. And that seems to somehow be lost here.
“The Justice appears to be pushing back on the petitioner's framing by emphasizing that the action 'wasn't arbitrary' because it came from a database, suggesting mild disagreement with counsel's characterization. The phrase 'that seems to somehow be lost here' carries a slightly corrective tone, indicating the Justice is trying to clarify what they see as a key point being overlooked, blending skepticism toward the argument with an element of clarification.”
Yes. That's entirely correct. And, indeed, Respondent and his amici have had every incentive to go find examples of 1 bad-faith paroles where we're willy-nilly paroling LPRs, and they just haven't found any because we don't do that. It's not in our interest to do that.
So was this ever -- was this process challenged before the removal hearing?
“The Justice is asking a straightforward factual question about the procedural history of the case, seeking to clarify whether a challenge was raised at an earlier stage. This is primarily a clarifying inquiry with some engagement as the Justice explores the timeline of events.”
No. This was -- this was raised at the removal hearing, where we concededly --
So whatever burdens that the parole imposed were not challenged before the removal?
“The question appears to be seeking clarification about the procedural posture of the case—specifically whether the burdens of parole were challenged prior to removal. The phrasing 'So whatever burdens' suggests the Justice is confirming or restating a factual point to ensure understanding, with mild skepticism about the scope of what was preserved for review.”
That's right. In fairness, I'm -- I'm not sure there is a path to --
-- judicial review for it, but that is correct.
Justice Alito? Justice Sotomayor?
You're presuming something I can't. You're presuming -- well, let me start with you didn't have proof at the 1 moment he presented himself that he had committed a crime of moral turpitude, right? You had just a charge.
“The Justice directly challenges counsel's presumption ('You're presuming something I can't'), signaling skepticism about the argument's logical foundation, while also clarifying the factual distinction between a charge and proof of a crime of moral turpitude. The self-correction ('well, let me start with') adds a clarifying dimension as the Justice reformulates the challenge.”
So I think the charge is enough to -- for an officer to conclude that.
But you -- do you -- could you have excluded him --
“The fragmented, interrupted nature of this utterance ('But you -- do you -- could you have...') suggests an interruption mid-thought, which signals some hostility or urgency, but the core question 'could you have excluded him' appears to be seeking clarification about the limits of the petitioner's position. The stuttering structure indicates the Justice is pressing quickly on a specific point.”
-- with the charge alone?
“This appears to be a mid-sentence interruption or follow-up fragment, likely seeking clarification about whether something applies to 'the charge alone.' The truncated nature suggests the Justice is refining or completing a question for clarity rather than expressing a particular sentiment.”
I see. Because it's a crime involving moral turpitude, no, but that's just -- but there are many other offenses listed in 1182(a)(2) for which we could have. The vast majority of them don't require a conviction to be removable as inadmissible. So, for example, if the pending charge had been --
I -- I don't -- I want to go just with this one because that's --
“This appears to be a procedural/redirecting statement where the Justice is narrowing focus to a specific point, indicated by 'I want to go just with this one.' The hesitant phrasing ('I -- I don't --') suggests the Justice is mid-thought, likely steering the conversation rather than expressing strong sentiment, making it largely neutral with some clarifying intent.”
Could you have at the time -- at the time that he was at the 1 border, could you statutorily have excluded him for having committed a crime of moral turpitude on the basis of the charge alone?
“The Justice is asking a precise factual/legal question about the statutory framework at the time of the border encounter, specifically whether exclusion based on a charge alone (rather than conviction) was possible. This is primarily a clarifying question seeking to understand the legal landscape, with some engagement as the Justice probes the implications of the statutory scheme.”
The border officer -- as a practical matter, they don't do this, but nothing would have -- nothing forecloses the officer --
I -- I -- I --
“The repeated 'I' stuttering suggests an interruption or an attempt to interject, which can signal mild hostility or urgency, but the extremely limited content makes it nearly impossible to assign meaningful sentiment. The neutral category dominates given the lack of substantive content.”
I'm going to answer you directly.
Nothing would have foreclosed DHS at that moment from initiating removal proceedings, potentially detaining him under 1226, and by the time of the hearing before the IJ, we would have to prove that, in fact, he was seeking an admission when he arrived at the airport and --
I'm sorry. What you're saying is yes, that you had enough proof to bar his admission?
“The 'I'm sorry' opener and the direct restatement of the counsel's position indicates the Justice is seeking to confirm their understanding of the argument. This is primarily a clarifying question to ensure accurate comprehension of the petitioner's claim about the sufficiency of proof.”
I'm not saying that we would have won in front of the immigration judge. What I'm saying is --
I -- just answer 1 the question.
“The interruption ('I --') followed by a directive command to 'just answer the question' signals mild hostility or impatience, suggesting counsel is evading or being unresponsive. However, it could also be read as a neutral procedural correction to keep the argument on track.”
Well, that -- that is my answer.
Did you have a right at the border -- did you have enough proof that he had -- that he had committed a crime of moral turpitude?
“The Justice is probing whether the government had sufficient evidentiary basis to act at the border, which combines genuine clarification about the factual record with mild skepticism about whether the legal standard was met. The self-correction mid-question ('did you have -- that he had') suggests the Justice is working through the legal elements carefully rather than making a hostile challenge.”
The border officer made a conclusion that he had.
That he had probable cause to believe?
“This short, direct question appears to be a clarifying restatement or echo of what counsel just said, seeking confirmation about the probable cause standard being applied. The phrasing suggests the Justice is checking their understanding of counsel's argument rather than challenging it.”
That he -- the border officer concluded that Respondent had --
Could he have gone to a hearing at that time and won?
“This short, direct question appears to be genuinely probing the practical or legal possibility of an alternative procedural path, suggesting clarification-seeking about the facts or legal options available. There is mild skepticism embedded in exploring whether the petitioner had a viable remedy at the time.”
I don't know. By the time of a hearing, we would have probably gathered additional evidence.
No, no. At that moment, if he had gone to a hearing, could he have won?
“The 'No, no' opening signals a correction or redirect, suggesting mild hostility or impatience with the counsel's previous answer, while the follow-up question is genuinely clarifying as the Justice pins down a specific factual/legal point about whether the petitioner could have prevailed at a hearing at that specific moment.”
In a -- in a removal hearing, we would have a clear --
Counsel, at that moment --
“This is a very brief, incomplete utterance that appears to be an interruption mid-sentence ('at that moment --'). The dash suggests the Justice cut off counsel to interject, which can signal mild hostility or impatience, but the fragment is too short to determine clear intent. It could be a clarifying interjection or a neutral procedural interruption seeking to focus the argument on a specific moment.”
-- and this is the decision at issue --
“This is a short, procedural interjection where the Justice appears to be identifying or referencing the specific decision under review. The dashes suggest it is an aside or clarifying parenthetical mid-question, carrying almost no emotional valence—primarily neutral with a slight clarifying element.”
-- at that moment, could he prove it?
“This short, pointed question interrupts or follows a hypothetical scenario, probing whether a legal standard or evidentiary burden can be met. It combines clarifying intent (seeking to pin down a specific factual/legal point) with skeptical probing about the feasibility of proof.”
I don't know what hearing you're referring to.
I'm not -- at the moment he made the decision.
“This fragment appears to be a Justice mid-sentence correcting or clarifying a temporal point ('at the moment he made the decision'), suggesting they are seeking precision about timing rather than expressing skepticism or approval. The incomplete nature and focus on a specific moment indicates a clarifying or engaging intent.”
At the moment he made the decision, the border officer --
Did he have enough proof?
“This brief question appears to be genuinely seeking clarification about the sufficiency of evidence presented, with some skeptical undertone questioning whether the evidentiary threshold was met. The direct, concise phrasing suggests the Justice is probing a factual point rather than expressing strong disagreement.”
Did he have enough proof at that moment? Forget --
“The Justice appears to be seeking clarification about the sufficiency of proof at a specific moment, with 'Forget --' suggesting an attempt to focus or redirect the inquiry. The question is probing but primarily clarifying in nature, with some skeptical undertone about whether the evidentiary standard was met.”
Yes, the border officer had enough proof for himself.
To do what? Parole him --
“This appears to be a mid-sentence clarifying interruption where the Justice is seeking to understand what action is being requested, likely completing or probing the petitioner's statement about a specific remedy or outcome.”
-- or to exclude 1 him?
“This appears to be a brief clarifying question, likely a follow-up seeking to confirm or distinguish between two alternatives (include or exclude 'him'). The fragmentary nature suggests it is part of an ongoing exchange where the Justice is seeking precise clarification about the scope of an argument.”
I -- I'm not sure what you mean by "exclude." With -- I'm sorry.
He could have just said you're not admissible, bye --
“The colloquial, informal phrasing ('bye --') suggests the Justice is actively engaging with and exploring a hypothetical scenario about what an official could have done, testing the boundaries of the argument. There is mild skepticism embedded in the hypothetical, but the tone is more exploratory and intellectually engaged than hostile or deeply critical.”
Yes. But then that would require --
-- and not parole him.
“This appears to be a sentence fragment, likely completing or continuing a thought mid-discussion about parole decisions. Without more context it reads as either a clarifying restatement or an engaged exploration of a hypothetical scenario involving parole denial.”
That would require initiating removal proceedings. And as I said earlier --
And so, at that moment, if there was an IJ there, sitting there, he could not have won that removal, correct?
“The Justice is pinning down a specific factual or legal concession by asking a confirmatory question ('correct?'), which blends clarification with mild skepticism — testing whether counsel agrees with a logical consequence of their position. The phrasing suggests the Justice is working through the argument's implications rather than expressing hostility.”
-- because we have a clear and convincing burden.
I'm sorry. Maybe if you -- would you like to finish that answer?
“This is a procedural, courteous interjection allowing counsel to complete their answer, likely after an interruption. It carries no substantive judicial sentiment and is essentially administrative in nature.”
Thank you. In a removal 1 proceeding, which is where this would be adjudicated, so if the officer thought he was inadmissible, he would hand him a notice to appear and say you are being charged as inadmissible because you have, you know, committed a crime involving moral turpitude. And the IJ is sitting right there and the IJ would say, great, we're now in removal proceedings. Government, you have to prove that, in fact, he was seeking an admission by clear and convincing evidence. Do you have it? And the answer is no, which is the whole reason we're fighting this case, is because border officers are rarely going to be able to collect clear and convincing evidence.
What Justice Sullivan said is allowing DHS to defer a parole eligibility determination and take a wait-and-see approach, contingent on whether a conviction eventually materializes, effectively nullifies the clear command that LPRs should be admitted. That's the clear command of the statute. You've got to admit them unless they've done these six things. 1 And you're admitting that at that moment, he may have had reason to believe he committed these things, but you didn't have proof that he had committed those things yet.
“The Justice is challenging the government's position by forcefully articulating the statutory command that LPRs must be admitted absent proof of the enumerated exceptions, questioning how deferring eligibility without actual proof squares with the statute's clear mandate. The tone reflects strong skepticism toward the opposing argument, with some hostility in the pointed assertion that 'you're admitting' the lack of proof, and underlying concern about the implications of nullifying statutory protections for LPRs.”
With all respect to Judge Sullivan, he jumbled two things. He conflated the deferral of a decision on inadmissibility with a parole eligibility determination. He did not --
All right. Could I just ask you one final question? In what other administrative context when an agency -- and the agent is the agency here -- makes a determination do we permit them to develop new evidence after the decision they're charged with making is made? I thought that we only review the evidence they had at the time they made the decision.
“The Justice is probing a significant weakness in the petitioner's argument by challenging the procedural claim that new evidence can be developed post-decision, invoking the standard administrative law principle of record review. The rhetorical framing 'I thought that we only review the evidence they had at the time' signals skepticism toward the petitioner's position while also genuinely seeking a legal distinction.”
Removal proceedings are themselves administrative proceedings. So, yes, a court would review only the evidence presented at the removal proceeding.
Assuming that the parole was valid.
“The phrase 'assuming that the parole was valid' suggests the Justice is setting a conditional premise, likely to clarify the scope of the argument or probe its logic. It has a mild skeptical undertone by flagging the validity of parole as a potential issue, but is primarily a clarifying move to establish the basis for further questioning.”
Whether or not it's valid. Even if the parole's invalid, we would have to show that, in fact, in reality, Respondent was seeking an admission on June 15, 2012, when he landed at Newark Airport. We would have to prove that by clear and convincing evidence to an immigration judge, and we did.
Mr. Joshi, am I right that your theory depends on the ability to parole the -- the person coming in? You know, in other words, you're saying, if you parole that person, everything is suspended until the IJ can get their hands on this determination. So everything really depends on the parole, is that correct?
“The Justice is primarily seeking to confirm their understanding of the petitioner's legal theory by distilling it to its core dependency on parole, using 'am I right that' and 'is that correct' as genuine clarifying phrases. There is a mild skeptical undertone in isolating and testing the foundational premise of the argument.”
Yes and no. Our view is that once the immigration officer determines that he -- he's satisfied -- or he is not satisfied that none of the six exceptions applies, so he says, I think you're seeking an admission, so I'm going to treat you just like any other arriving alien even though you're an LPR. You still have your LPR status, but you're going to be inspected and have to prove 1 your admissibility just like every other arriving alien. At that point, typically, there are three options. One is admit. Two is removal proceedings. And then the third, which is entirely in DHS's discretion, is parole because I'm not sure if you actually are inadmissible, the final thing, or if you should be admitted, and so I'm going to parole to hit the pause button. We can both develop our evidence.
Okay. So that's -- that's close enough to a yes that I'm going to ask you --
“The Justice is parsing the counsel's response as a near-affirmative and pressing forward with a follow-up question, indicating active engagement and a clarifying intent. The phrase 'close enough to a yes' shows the Justice is interpreting an evasive or indirect answer and pushing for more precision, reflecting mild skepticism but primarily clarifying and engaged behavior.”
-- my second question because the parole is the pressing of the pause button in this case.
“The Justice appears to be refining or redirecting their own questioning using a metaphor ('pause button') to clarify how they conceptualize parole in this context. This suggests active intellectual engagement and clarification of their own line of reasoning rather than hostility or strong skepticism.”
And the question is, what entitles you to press that pause button? In other words, what entitles you to give parole before you've made the determination? Because, as I understand it, you're only parole eligible if you've committed these various crimes, which sounds like a strange 1 thing to say, like, that you've committed the crimes and so you're parole eligible, but that's the truth of the matter.
“The Justice is probing the legal basis for granting parole before a determination is made, questioning the logical structure of parole eligibility. The phrase 'what entitles you' signals skeptical probing, while the self-correction ('which sounds like a strange thing to say') suggests genuine clarification-seeking about how the system works.”
And so -- so don't you have to make the determination before you give parole? And -- and -- and -- and then, since the determination is the trigger for the parole, which is what suspends the proceedings, it would seem as though you need to satisfy your burden before you give the parole.
“The Justice is pressing the petitioner's counsel on a logical sequence — that the determination must precede parole, and that the burden must be satisfied before granting parole — which challenges the petitioner's procedural argument. The repetitive 'and -- and -- and' stuttering suggests the Justice is working through the logic while probing a weakness in the argument, indicating primarily skepticism with some clarifying and engagement elements.”
I was with you until that very last point. So, yes, there is a determination made, but it's not clear and convincing evidence. It is something lower than that by the nature of the border environment. And -- and that's our critical submission here. And -- and so --
Yeah. Even though, I mean, it's -- it's -- then you're -- you're -- you've lost your kind of this is the charging stage and that's the adjudication stage because now what's critical is whether you've made the appropriate showing in order to grant parole, which is a different question than anything 1 that the IG is going to have to face. And you're saying that in order to grant parole, all you need is kind of to the satisfaction of.
“The Justice is probing a tension in the petitioner's argument—pointing out that the distinction between charging and adjudication stages seems to collapse under their framework, and questioning what standard applies for granting parole. The hesitant, fragmented phrasing suggests the Justice is working through the logic while simultaneously challenging it, indicating skepticism mixed with engaged exploration.”
Correct. That -- that is right. And -- and that is how the rest of the INA works. If you're a citizen and you walk in and you say, I'm a citizen, you have to show that you are, in fact, a citizen to the border officer's satisfaction. And if you don't, you can be detained. That's the Sing Tuck case. This Court held you can be detained and there's no problem with that. So that's a standard feature of the immigration laws, is that someone coming in has to establish to the satisfaction of the officer that he's allowed in. And the way that eventually gets litigated is in the removal proceeding, when the government will bear the burden to show that historical fact was correct or incorrect. But that's where things get litigated. There's not a clear and convincing standard at the border.
Well, one last -- just to pick up on -- on something that you were saying with Justice Sotomayor. You were going 1 to explain what you think Judge Sullivan got wrong. So tell me what you think Judge Sullivan got wrong.
“The justice is genuinely seeking to understand the petitioner's position by inviting them to articulate what they believe the lower court judge got wrong. The phrasing 'tell me what you think' is an open, neutral invitation for explanation, building on a prior exchange with another justice, indicating clarifying intent with engaged curiosity.”
So Judge Sullivan, in the passage that I think Justice Sotomayor was reading, said the government's not allowed to defer the parole eligibility determination, and I think you and I were just talking about that. We're not deferring that determination. It's just the border officer makes it with a certain level of confidence, and then, in removal proceedings, the government has to prove that the alien -- that the LPR was, in fact, seeking admission by a higher evidentiary standard in that adversarial proceeding and convince the immigration judge of it. So we're not deferring the parole eligibility. And I think he was jumbling deferral of the admissibility determination with the -- with the threshold question.
Just a couple quick 1 questions. Do we have to decide what the standard for parole is in this case? I mean, couldn't one simply say, whether he was paroled lawfully or not, he was paroled, and did you meet your burden in the removal proceedings? Answer that yes or no.
“The Justice is probing whether the case can be resolved on narrower grounds without deciding the parole standard, suggesting an attempt to simplify the legal question. The 'yes or no' framing indicates some skepticism about the necessity of addressing the broader issue, but the overall tone is more clarifying/exploratory as the Justice seeks to narrow the dispositive question.”
Okay. And then, with respect to the parole decision, you say you're not sure whether that would be reviewable independently. Your friend on the other side, on page 34 of his brief, says that it would be reviewable under 1252(a)(2)(B) as a question of law involving any decision or action in the discretion of the government. I can also see an argument perhaps that it might be reviewable under 704 of the APA for questions that are otherwise unreachable, final agency actions. Thoughts?
“The Justice is actively engaging with the legal arguments, presenting the opposing brief's position and offering their own alternative legal theories (APA 704) for the counsel to consider. The phrase 'Thoughts?' signals intellectual curiosity and collaborative exploration rather than skepticism or hostility.”
So our longstanding position of the government, as you might expect, is that parole decisions are not reviewable either in a petition for review from a removal order or under the APA.
No, I'm not talk -- 1 I'm not talking about through a petition through -- involving the removal proceedings. I'm talking about could he have brought a -- a distinct challenge under 1252, could he have brought a distinct challenge under 704 to challenge the -- the parole decision at the time or shortly after he came into the country.
“The Justice is correcting a misunderstanding by counsel ('No, I'm not talking about...') and redirecting to clarify the specific legal question about distinct challenges under §1252 and §704. The correction signals mild frustration or skepticism, but the primary thrust is clarifying the precise scope of the question being asked.”
So -- so our -- our longstanding position is no.
Okay. I -- I got that. What do you say about those two statutory provisions?
“The Justice acknowledges the counsel's prior point ('I got that') and redirects to specific statutory provisions, indicating a neutral-to-clarifying intent focused on obtaining a direct response to particular legal questions rather than expressing skepticism or approval.”
Do you have any reasons for no? (Laughter.)
“The laughter indicates this is a lighthearted, witty remark rather than a hostile challenge. The Justice appears to be playfully pressing counsel for reasoning, suggesting an engaged but good-humored exchange rather than serious skepticism or hostility.”
Yeah. So the -- the reason -- the reason is that under 1252, in the zipper clause, we think everything coming out of a -- a removal proceeding has to be channeled to the removal proceeding. And -- and this parole determination was. So then the question is, well, can he just bring a stand-alone APA action or an ultra vires action while he's on parole? And I'm not 1 aware of that ever happening. This is the very odd case in which an alien doesn't want to be paroled. Usually, they complain when we terminate their parole. And you've seen those cases. But it's very rare that an alien says, I don't want to be paroled.
So we've never faced that situation. So --
All right. Okay. Thank you.
“This is a brief, procedural closing acknowledgment with no substantive content, indicating standard judicial demeanor. The polite 'thank you' carries minimal emotional valence beyond basic courtesy.”
-- we'll have to deal with it --
Justice Kavanaugh? Justice Barrett?
So, Mr. Joshi, I agree with you this is a weird thing to think about at the border a clear and convincing evidence standard applying because there is no adjudicatory proceeding. And it seems to me that -- I mean, you've conceded for purposes of this case that a clear and convincing standard 1 applies to that threshold admissibility, like which track you're on. It seems to me that, I mean, either that's wrong or, when you're at the border -- I'm trying to imagine if you lose this case what happens and if it's actually more favorable to an LPR, because it seems to me that if a clear and convincing standard applies when the LPR arrives, like, you know, as Mr. Lau did, if it's a clear and convincing standard and you really do want to apply -- either you would have to gut it and say, well, we just can't show because it's impractical in the airport or at the border or otherwise to show that there's clear and convincing evidence that someone engaged in criminal conduct abroad or, you know, committed a crime -- it doesn't say convicted -- so you either just give it up and gut those provisions, or what do you do? Do you detain the LPRs and you set up some sort of adjudicatory proceeding? And how would -- would that be judicially reviewable? How would we know whether the border officer had clear and convincing evidence? There would be no administrative record.
“The Justice begins with partial approval ('I agree with you this is a weird thing'), but then launches into a complex exploration of the practical implications if petitioner loses, raising serious concerns about how a clear and convincing evidence standard would actually function at the border — including problems with gutting provisions, detaining LPRs, and lack of administrative records. This reflects a mixture of genuine intellectual engagement with the problem, concern about downstream consequences, and some skepticism about whether the legal standard can work in practice.”
Correct. That's exactly right. And that's why I think Justice Ginsburg in Vartelas, you know, memorably said you don't call into session a piepowder court. But that's essentially what we'd have to do if we were to, like, enforce the -- the seeking admission provision. The other alternative, I suppose, would just be to initiate removal proceedings, potentially detain him under 1226, and then use that time to -- to gather the right evidence. But that doesn't really benefit anyone. Parole has a significant public benefit in these circumstances. It benefits the public because it means someone facing a criminal charge can be held responsible for his crimes. It benefits in most instances the LPR because they can organize their defense from within the country while they're free and not detained and can maybe even plea bargain down to charges that don't carry immigration consequences. And it benefits the government because we don't have to have detention -- you know, fill up a detention bed with -- with someone 1 who's maybe otherwise safe, and we don't have to incur those expenses, and we can -- and both sides can gather the evidence they need for the removal proceeding.
So, if you lose this case and we say that, yes, the border patrol officer has to have clear and convincing evidence, then detention of the returning LPR is a route that you might take?
“The Justice is exploring a hypothetical scenario about what happens if the government loses, probing alternative enforcement routes. This reflects intellectual engagement with the practical consequences of a ruling, while also containing some clarifying intent to confirm the government's fallback position and mild concern about implications for LPRs.”
So, rather than being paroled, they might face detention and immediate removal proceedings?
“The Justice is seeking to clarify the practical consequences of the petitioner's position—specifically whether the alternative to parole is detention and immediate removal—while also expressing some concern about the potential harsh implications for the individuals involved.”
That is correct because --
Which would not benefit the --
“This appears to be a mid-sentence interjection or incomplete thought, likely the Justice finishing or reformulating a point about who would benefit from an argument. The fragmentary nature suggests active engagement or clarification-seeking during an exchange, with no strong emotional valence detectable.”
Right, because, by hypothesis, if we lose this case, parole would be taken off the table. So then we would be just facing the choice of admit them even though the officer in good faith thinks they shouldn't be admitted, or --
-- initiate removal proceedings, detain them, and take our chances. It's not a great choice. That's why we've been doing this for so many years.
If -- if you lose this case, are you going to challenge that the clear and convincing evidence standard applies? Because you've conceded it for purposes of this case, but the statute doesn't say it, which is another reason to think that there's not an adjudicatory proceeding contemplated.
“The Justice is probing a strategic concession made by counsel, suggesting it undermines their broader argument—implying the statute's silence on the evidentiary standard supports the view that no adjudicatory proceeding was contemplated. This is skeptical questioning that tests the logical consistency of counsel's position while also exploring future implications.”
I don't know the answer to that. Obviously, the Attorney General can himself take a BIA case and -- and issue a decision, but I don't know the answer to that.
Okay. So that's another way in which a win for Mr. Lau might not have long-term benefit for aliens or LPRs seeking to return to the country?
“The Justice is probing whether a win for the petitioner would have limited practical benefit, suggesting skepticism about the value of the petitioner's position while also expressing concern about broader implications for similarly situated individuals. The 'okay' opener and exploratory phrasing indicate some engagement, but the underlying thrust questions the real-world utility of the petitioner's argument.”
So, Mr. Joshi, I guess I am struggling to understand why parole 1 is a significant public benefit. That was the conversation that you had with Justice Barrett right now. And I -- I guess I start where the statute starts, which is the recognition that lawful permanent resident status is the gold standard in immigration law. These are people who have gone through the immigration gauntlet and have achieved what is the next closest thing to citizenship status in terms of their ability to work, to live, to do things here in the United States, and they have left the country for the requisite amount of time and they're returning, and the statute says that those people shall not be regarded as seeking an admission for the purpose of the immigration laws. That's the background, that this person has a green card and they're supposed to be let in. So I appreciate that your border officer might have some suspicions or might not want to bring them back or might think, ooh, look, there's some evidence in a database somewhere that suggests that this person might be a problem. But this person under the statute is supposed to be let in. That's the 1 beginning. So then the question becomes to what extent can the border officer decide, in good faith or not, that this person is not going to be let in, that I'm deciding right now here at the border that, despite your green card status, you have to not be admitted? And Congress was pretty clear that there are six and only six circumstances. One is that this person has committed an -- an offense. And it doesn't just say has committed an offense; Border Patrol Officer, you figure that out. It says has committed an offense identified in a particular section. And then, when we go to that section, the person who is inadmissible under that section is one who is an alien convicted of or who admits having committed this offense. So I guess my question is your busy border officer, under this statutory scheme, it seems to me he's supposed to say, I see here that you have been indicted. But the statute says a person is inadmissible if they're convicted of or admitted to. Those things don't exist. So the background rule of letting 1 this person in is supposed to be what happens right now. Now, if that's the case, first of all, let me ask you, is that the end of Mr. Lau's story? I mean, I thought he could still be deported if later he's convicted of this crime that he's been accused of. He can still be deported, right?
“The Justice is strongly challenging the petitioner's position by meticulously walking through the statutory scheme to demonstrate that the border officer's discretion appears limited and that the respondent should have been admitted under the statute. The repeated 'I guess I am struggling' framing and the detailed statutory analysis probing weaknesses in the government's argument signal substantial skepticism, with some clarifying intent at the end regarding deportation consequences.”
In his particular circumstance, yes, but that will not be true of all LPRs. In his particular circumstance, it's the happenstance that he committed that crime four months and -- four years and six months after admission rather than five years and one month.
You're saying because of the statute -- because of the statute of limitations, there may be -- right, but that's in Congress's -- that's in Congress's purview as well. They've decided that a person who is beyond the five years, that should not be a reason to deport them. So I don't understand why the border officer suddenly has so much power to deprive a person who has a green card, based on a 1 suspicion or even an indictment, when the statute seems to require conviction for this particular kind of exclusion.
“The Justice is strongly pushing back on the government's position, expressing doubt about the border officer's broad power to exclude a green card holder based on mere suspicion or indictment when the statute requires conviction. The phrase 'I don't understand why' signals skepticism about the legal reasoning, while the concern about depriving a person of their green card rights reflects worry about the implications of the opposing argument.”
Okay. So two things. First, the statute does not require a conviction. This Court -- I mean, the -- the difference between commission and conviction runs throughout the INA. This Court recognized it in Barton against Barr. That is a difference. If Congress had intended to pick up --
-- the conviction for crimes involving moral turpitude, and not all of the offenses listed require a conviction --
-- it would have just said inadmissible under 1182(a)(2). Congress didn't say that. It said committed an offense. So --
Okay. So then the question becomes who decides committed an offense and when.
“The Justice is synthesizing and reformulating the argument into its core legal question, indicating intellectual engagement and clarification of the central issue. The 'Okay. So then...' construction suggests the Justice is distilling the argument to identify what must be resolved, which is primarily clarifying with some engagement.”
And your rule is the border patrol officer gets to decide whether or 1 not he's committed an offense, but you say it's a pause. We know he can't really do it. So we'll assume that it's okay for him to treat this person as inadmissible during the period of time in which we're figuring out whether or not he actually is. Is that -- that's the government's position, right? You can parole him, meaning strip his green card, treat him as inadmissible for this period of time while we are determining whether or not he is actually inadmissible?
“The Justice is probing the government's position with pointed rhetorical questions, highlighting what appears to be a tension in their argument — that a border patrol officer can effectively strip someone's green card status based on a mere suspicion during a determination period. The phrasing 'We know he can't really do it' and the sarcastic restatement signal skepticism bordering on hostility, though the closing 'that's the government's position, right?' retains a clarifying element.”
Parole does not change his status. He's still an LPR. I understand that the amici don't like the form of the government document that proves that he is still an LPR. They -- they say that --
So will the government commit to letting the person keep their green card? You said you don't know why they take it.
“The Justice is pressing the government on a specific commitment regarding green card retention, building on a prior admission of uncertainty ('you said you don't know why they take it'). This suggests skepticism about the government's position and concern for the practical consequences to the individual, while also seeking a direct clarifying commitment.”
If that's true, then can they keep their green card?
“The 'if that's true' framing signals conditional probing of the argument's logical consequences, suggesting skepticism about where the petitioner's reasoning leads. The follow-up question about green cards tests the implications of the argument, blending skeptical probing with genuine engagement about potential consequences.”
I -- I -- I don't -- I'm 1 sure there are very good administrability reasons why we have to keep the green card. As it turns out, for example, one reason might be, I'm not saying this is the reason, but I am just aware of this fact that seems relevant, which is that of the LPRs who are paroled, approximately 25 percent are no shows. They just don't show up to their -- to their deferred inspection. We can't find them.
That's probably a pretty good reason why we hang on to that card.
All right. Let me just finally really kind of drill down on the concern that I have. You -- you said in -- in your response to Justice Thomas that it really isn't in the -- in the government's interest to engage in sort of a bad-faith paroling kind of scenario. And my concern is that I could actually see a world in which it would be, in which it would be in the government's interest. And it's a situation in which people who are lawful permanent residents who have green cards 1 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. Can you respond to that?
“The Justice explicitly frames this as a 'concern' and constructs a detailed hypothetical about potential government bad faith—using parole status to effectively force self-deportation of lawful permanent residents—signaling deep worry about real-world consequences and abuse of the government's power. The tone is probing but rooted in genuine alarm about implications rather than skepticism about the legal argument itself.”
I don't think you -- I don't think this Court should interpret the INA on the assumption that the entire executive branch is operating in bad faith.
Thank you, counsel. Mr. Dvoretzky. ORAL ARGUMENT OF SHAY DVORETZKY ON BEHALF OF THE RESPONDENT
“This is a purely procedural transition statement thanking one counsel and introducing the next. It contains no emotional valence, no questioning, and no substantive legal content — a standard administrative courtroom statement.”
Mr. Chief Justice, and may it please the Court: The Court should either affirm or DIG. The government came to this Court with a dispute about when it must meet its burden to prove that a lawful permanent resident may be treated as seeking an admission to the United States: At the border or before an IJ. Only now, in its merits reply and here today, does the government say the case is about the burden of proof, a question that it forfeited before the Second Circuit and conceded in its cert reply was not contested. The INA's text and structure plus historical practice make clear that an officer must decide at the border whether an LPR is seeking an admission. And at the cert stage, Mr. Lau argued that this case was a poor vehicle because the government had not briefed the standard for that determination and the 1 Second Circuit hadn't decided it. In response, at page 11 of the government's cert reply, it said, "the government is not challenging the clear and convincing evidence standard. This case is about when the government must carry that burden." On that understanding, the principal merits briefs focused solely on timing, until the government changed the question in its reply brief. At page 2 of the merits reply, the government says "that the timing issue is not in dispute because whether an LPR is seeking an admission must be determined at the border." The government now claims that "the requisite level of proof is the crux of the dispute in this case." What is that requisite level of proof? Something lower than clear and convincing evidence. Maybe satisfaction. Maybe probable cause. None of that has been briefed. So much for square corners in a case about square corners. Even putting aside gamesmanship, the Court shouldn't decide the 1 burden question without full briefing and a lower court decision. The Court thus should affirm on timing alone or alternatively DIG. Doing so would not be disruptive. Border agents can determine whether a returning LPR can be regarded as seeking an admission using their ordinary interview and background check techniques. And because the Second Circuit didn't decide the burden question because, again, the government failed to address it, the government could press its preferred standard in another case. The Court should hold the government to square corners. I welcome the Court's questions.
What precisely do you think the standard should be or what the officer should do at the border --
“The question directly asks counsel to specify their proposed standard, indicating a genuine effort to understand the respondent's position. The use of 'precisely' signals a clarifying intent, while the exploration of what an officer 'should do' adds an element of intellectual engagement.”
So, again, we haven't briefed --
Again, the question of what precisely the standard should be has not been briefed by either side in this case because the government disclaimed putting that 1 at issue. Nonetheless, if -- if you're asking me what I think it should be, I -- I do think it should be clear and convincing evidence, and what the officer should do at the border, consistent with what border officers have done for over a hundred years, is to check to see whether there is a conviction or whether the returning LPR will admit to the elements of the offense. That is what border officers do every day under 1182 and what they have done, as I said, for over a century because Congress has said that -- that -- that -- that -- excuse me, non-citizens at the border who have committed certain offenses are not admissible.
Counsel, but in your brief, you talk about Ellis Island and people coming on the ships and how some of these filters were applied by immigration officers at the border then. But it wasn't by clear and convincing evidence, right?
“The Justice is probing a weakness in the respondent's historical argument about Ellis Island by pointing out that the evidentiary standard used then ('clear and convincing evidence') may not match what counsel claims, suggesting skepticism toward the argument's validity while also seeking to clarify the precise historical record.”
I don't think anybody ever talked about the standard, but I think that what clear and convincing evidence means 1 in this context is do you have evidence of a conviction or --
But the statute doesn't say "conviction." It says "committed." And -- and what about the one about engaged in criminal conduct overseas? That doesn't say "conviction." And Mr. Joshi said it could be like an Interpol alert that caused someone -- I mean, I think clear and convincing evidence, if you're going to give effect to these exceptions for LPRs, I think it would contemplate clear and convincing evidence, some sort of adjudication or some sort of a trial where the border officer would have to say what the evidence was.
“The Justice is probing the statutory text ('it says committed, not conviction') and expressing concern about the implications of allowing border officers to make determinations without formal adjudication, particularly for LPRs. The reference to Interpol alerts signals worry about procedural protections, while the statutory textual challenge reflects skepticism toward the government's interpretation.”
I -- I don't think it contemplates a mini-trial at the border. I think what it contemplates, to use a phrase I think Mr. Joshi used, is a level of confidence by the officer, what information does the officer have before them, and how -- does that suffice, does that satisfy the level of confidence required to conclude that this returning LPR, who has a statutory right to 1 return to the country, should nonetheless be stripped of that right subject to an exception.
Well, but it also says --
“The phrase 'Well, but it also says --' appears to be an interruption mid-sentence, which research associates with hostility or disagreement, as the Justice is cutting off counsel to introduce a counterpoint. However, without more context, it could also be a mild counter or procedural interjection, warranting significant neutral probability.”
Is that only satisfied by a conviction?
“This short, pointed question probes whether a conviction is the only way to satisfy some legal standard, suggesting both genuine clarification-seeking and mild skepticism about a potentially narrow interpretation being advanced by counsel.”
Is that only satisfied -- you kind of suggested a moment ago that it would be satisfied only by a conviction.
“The Justice is seeking clarification on the counsel's earlier statement about what would satisfy a particular standard, specifically probing whether a conviction is the only way to meet it. The phrasing 'you kind of suggested' indicates mild skepticism about the position while primarily seeking to pin down the exact argument being made.”
No -- no. I think most commonly it would be satisfied either by a conviction or by an admission to the elements of the offense. Again, here, if you look at the --
Is that it, those two?
“This is a brief, concise clarifying question seeking confirmation of whether only two items or points have been identified. It has a neutral-to-clarifying tone with no emotional valence, simply confirming the scope of what counsel has presented.”
Are those two it? To follow up on Justice Barrett's question, you said most commonly. I just want to make sure. Is there anything else?
“The justice is explicitly following up to ensure completeness of the answer, asking whether there are additional examples beyond what was mentioned. This is straightforwardly a clarifying question seeking to establish the full scope of counsel's argument, with mild engagement in building on a colleague's inquiry.”
The reason I said 1 that, I think you could imagine a situation where perhaps -- which is not presented here, where perhaps somebody returns to the country and there's evidence in the -- in their suitcase that they had committed an offense. I don't know, you find their diary in their suitcase or something and that's what it says. You could imagine a situation like that, but the reason I say most commonly is that I think, typically, it is going to be either a record of conviction, which officers already have access to in a database, or an admission. And if you look at what happened in this case, if you look at Joint Appendix pages 13 -- 13 to 18, it has a transcript of the officer's interview of Mr. Lau. The whole thing was transcribed in the moment. And what that exchange shows is that the officer identified the pending charge and from that didn't even conclude that -- that Mr. Lau was subject to an exception. He concluded that he was actually inadmissible, meaning, from the pending charge, he found a conviction. That is not what this statute --
Could he, consistent with the statute, call in witnesses and say, well, I see you have this -- like, if you won this case, I'm just trying to game out what might happen. Could he then say, well, I see you have this pending conviction, so I'm just going to detain you here at the border and we're just going to call in some witnesses to find out about this counterfeiting charge?
“The Justice is gaming out a hypothetical scenario to explore the practical implications of the respondent's position, showing both concern about potential negative consequences (indefinite border detention with witness-calling) and intellectual engagement in testing the limits of the argument. The phrase 'if you won this case, I'm just trying to game out what might happen' signals a forward-looking concern about how the ruling could be applied.”
As a practical matter, that would obviously take too long. And I don't see any authority in the statute that would allow him to detain -- that would allow the officer to detain somebody in Mr. Lau's position at the border, at the --
Well, why not? Because he has to make the decision. So, if he has to do it at the border, I mean, we have to give him time to do it. And if what he has to do is gather clear and convincing evidence, that would take some time. It just isn't clear to me that it would benefit LPRs to have a situation in which then you're being detained.
“The Justice expresses concern about the practical implications of requiring 'clear and convincing evidence' at the border, worrying that demanding such a standard might actually harm LPRs by prolonging detention. The rhetorical 'Well, why not?' combined with the 'it isn't clear to me' phrasing signals genuine concern about real-world consequences rather than pure skepticism of the legal argument.”
I -- I don't think 1 there is statutory authority to detain in order to decide whether the -- whether an exception is satisfied, at least not for more than a -- a de minimis administrative sort of period of time when you're actually standing there at the border.
Well, then how can you apply a clear and convincing standard? Because that necessarily assumes some opportunity to pony up evidence, right?
“The Justice is probing a logical tension in the respondent's argument — if a clear and convincing standard requires an opportunity to present evidence, how can it be applied without that opportunity? The 'Well, then' construction signals a direct challenge following a prior concession, indicating skepticism, though the question also has a clarifying dimension as the Justice seeks to understand how the standard operates.”
You really are just narrowing it down to say conviction only.
“The phrase 'You really are just narrowing it down' suggests the Justice is pressing counsel on the scope of their argument, combining some skepticism about whether such a narrow reading is tenable with a clarifying element to confirm they've understood the position correctly.”
Two points, Justice Barrett. One, conviction or admission. And, again, as the pages in the Joint Appendix that I cited show, there is an opportunity, in fact, a requirement, for the officer to interview the returning LPR. And so there's a conversation. The LPR might admit to the elements of the crime, or, again, there might be evidence --
So -- so let's say --
“The phrase 'So -- so let's say --' is the beginning of a hypothetical, strongly suggesting intellectual engagement as the justice begins to construct a scenario to test an argument. The hesitant, fragmentary nature of the utterance makes it largely neutral/procedural, but the 'let's say' framing points toward engagement.”
-- of a conviction. Second --
-- there's the 1 alien -- I'm sorry, go ahead.
“This is a procedural interruption where the Justice defers to counsel mid-sentence, indicating a courteous administrative exchange with no emotional valence. The 'I'm sorry, go ahead' signals a neutral, polite yielding of the floor.”
No. Well, the -- the only -- the only other point I was going to make is, to the extent this is a difficult burden for the officer, which I actually don't think it is, that simply reflects Congress's choice that returning LPRs do have a right to return home, and that doesn't leave the government without tools. It can pursue deportation later.
Well, the statute does not say "has been convicted." And other related provisions talk about conviction. So assume for the sake of argument that it doesn't require conviction. You say the only other alternative is for the officer -- let's say the -- this individual arrives at Newark Airport and the officer looks in a database and says, I see that you have been indicted in federal court in Los Angeles for -- I know this is a state charge -- but let's say you're indicted in federal court in Los Angeles for counterfeiting. Do you admit it? And the alien says, no, I don't admit it. Okay, fine. 1 Then that's the end of it? That's -- that's the scheme you think Congress had adopted?
“The Justice constructs a detailed hypothetical to expose what they see as an absurd result in the respondent's statutory interpretation—that merely denying an indictment would end the inquiry. The rhetorical closing question ('That's the scheme you think Congress had adopted?') signals strong skepticism about the respondent's position, while the elaborate hypothetical construction also reflects intellectual engagement with the legal problem.”
I think the scheme that Congress has adopted does not allow -- as Judge Sullivan recognized, does not allow DHS to parole somebody in order to later determine whether they were subject to parole. Again, going back to the statute, the --
Well, I think your answer to that is yes, that's -- that's the only thing that can happen at the border. Unless there's a conviction and the alien says, okay, or there's a charge and the alien says, okay, I admit it, I admit that I did it, someone who's pend -- who has a pending criminal charge, unless one of those two circumstances is met, that's the end of it?
“The Justice appears to be pressing the respondent's counsel to confirm or clarify the logical endpoint of their argument — that at the border, only a conviction or an admission can satisfy the standard — showing skepticism about whether this is the correct or intended interpretation, while also genuinely seeking to pin down the precise contours of the legal position.”
Because what -- yes, because what the statute contemplates is that the person will be admitted unless an exception applies, and the only way that parole is available is if an exception applies. What the government can't do is what it did here, which is to parole somebody in order to determine whether they are eligible 1 for parole. The government can't exercise the very power that it is -- that it says it needs more facts before it can exercise.
-- the end of it insofar as he could be deported, correct --
“The Justice appears to be seeking confirmation of a factual or legal point mid-argument, likely clarifying the consequences of deportation for the respondent. The 'correct --' tag is a classic confirmation-seeking pattern, indicating a clarifying intent.”
Correct. The government has other tools, including the deportation authority, after the -- the LPR is admitted and returns home, as the statute contemplates.
Counsel, can we really say your client was admitted? I mean, whether he was paroled correctly or incorrectly, how do we -- how do we get from that to he was admitted?
“The Justice is directly challenging the legal leap in counsel's argument — from parole to 'admission' — using a rhetorical 'can we really say' construction that signals doubt about the argument's validity. While there is a genuine clarifying element in asking how to get from one legal concept to another, the skeptical framing dominates.”
He presented himself at the border for entry into the United States.
The -- the officer let him in. Those are real-world facts on the ground. And now --
The government is now -- parole is a legal status. The government is now --
-- attaching a legal label to what it is that happened when he was allowed into the country. If the government did not have the authority to parole him --
Right. I understand that -- that there's a question there. I get it. But he was paroled. I mean, that's just a fact on the ground. And I guess I'm kind of curious -- the same question to you that I asked the other side is, if -- if that parole decision were so -- had such negative consequences for your client, was there a means for him to challenge that decision?
“The Justice acknowledges the issue but presses on a factual reality ('he was paroled... that's just a fact on the ground'), while genuinely exploring whether alternative remedies existed — mirroring a question posed to the other side. This reflects a mix of mild skepticism about the argument's practical validity and engaged curiosity about procedural alternatives.”
Well, you say in your red brief you think there is under 1252(a)(2)(B) on page 34. And I also wonder about 704 of the APA and --
“The Justice is referencing specific pages from the respondent's brief and raising related statutory provisions, suggesting a clarifying and intellectually engaged line of questioning aimed at pinning down the jurisdictional basis rather than expressing doubt or hostility.”
-- just welcome your 1 thoughts.
“This appears to be a procedural invitation for counsel to begin or continue their argument, with a welcoming tone. It carries minimal emotional valence beyond a slightly positive, open demeanor.”
The -- the -- the path in our red brief there, the 1252 path --
-- it -- the -- the -- the decision whether to admit him or to parole him is something that gets wrapped up into the final order of removal, and so it can be reviewed at the end of the process. But I understood your question, Justice Gorsuch, to be whether -- and maybe I misunderstood it -- to be whether there was a path to challenge that before it got to a removal hearing.
And that -- and that path I'm not aware of.
How about 704? Or -- or -- or why not 1252 itself?
“The Justice is probing alternative statutory provisions (704 and 1252) that might apply, suggesting intellectual engagement with the legal framework while also potentially challenging the respondent's statutory interpretation. The rapid-fire alternatives indicate active exploration rather than pure hostility.”
So 1252 itself talks about a petition -- I think 1252(a) talks about a petition for review from a removal order.
So, again, you need to wait for the removal order.
Okay. You think that's it for that. All right.
“This is a brief, procedural transitional statement with no substantive content or emotional valence. The Justice is simply acknowledging the end of a point or topic and moving on, which is standard neutral courtroom demeanor.”
Whether -- whether 704 -- look, I go back to my earlier point about all of the issues that have not been briefed in this case.
Yeah. Do you -- do you have any thoughts about it?
“This is a brief, casual invitation for the counsel to share their perspective, with minimal emotional valence. The 'Yeah' suggests mild acknowledgment, and the open-ended question indicates either genuine curiosity or procedural engagement without any strong directional sentiment.”
Theoretically, it might. We'd certainly argue it. They'd certainly oppose it. 704 obviously operates as a -- as a catch-all of sorts.
I don't know what a court would do with that. Congress didn't leave the status of LPRs to that kind of uncertainty.
And to -- to the extent you believe that the Court -- to the extent you believe this case turns on that sort of thing, again, this hasn't been briefed, and the more appropriate case -- the more appropriate course would be either to affirm on the very narrow ground that the government has 1 brought this case to the Court on or to DIG the case.
Counsel, can you address the consequences of the deferred parole decision? This is from the amicus brief Justice Jackson was referring to before. You know, Mr. Joshi says that from a legal perspective, you know, the -- your client was still an LPR. You know, those admitted under this circumstance are still LPRs. But the amicus brief says there are practical consequences like job insecurity. Can you address those consequences?
“The Justice is drawing attention to practical real-world consequences (job insecurity) raised in an amicus brief, suggesting concern about the human impact of the deferred parole decision. The question also has a clarifying dimension, as the Justice is asking counsel to reconcile the legal position (still an LPR) with the practical consequences noted in the amicus brief.”
Sure. I think, as Mr. Joshi said, Mr. Lau's green card was taken away. It was replaced with a temporary stamp. These temporary stamps expire after a year. The government didn't even initiate the removal proceedings against Mr. Lau for more than a year. Losing the green card is significant, as the amici explained. Employers are hesitant to hire people with only the temporary stamp because they may not be permanent residents for 1 much longer. In -- in an era where ICE agents are conducting enforcement campaigns, a green card is a much more reliable means of identification if you're stopped on the street than a temporary stamp, which can be subject to counterfeiting. And so there are very real practical consequences to this. And it is -- it is in itself a form of a loss of liberty. In other areas of the law, where we're talking about a loss of liberty, clear and convincing evidence is the appropriate standard to apply. But, again, I come back to the point that what is the appropriate level of evidence, the level of confidence at the border, just hasn't been briefed here. Mr. Joshi is -- is acknowledging that there does have to be a determination at the border. He just says this entire case now comes down to the level of confidence. That's -- that's, again, not what has been fleshed out before this Court.
Can you address his point, 25 percent don't show up, just -- you heard him say that?
“The Justice is directing counsel to respond to an opposing argument (25% non-appearance rate), which is largely procedural and clarifying in nature—ensuring the point gets addressed. There's mild concern and skepticism embedded in surfacing the statistic, but the tone is primarily neutral and directive rather than hostile or strongly skeptical.”
I did hear him say 1 that. Again, the deportation authority, if you initiate deportation proceedings, would give -- would also come with detention authority. And so the government has that tool available to it if that -- if that becomes a problem.
That seems to suggest that if we rule in your favor, then the government's choice is detain somebody at the border and charge them with removability, and is that acceptable to you?
“The Justice is probing the practical consequences of ruling in respondent's favor, suggesting detention as the only remaining government option — this signals both skepticism about the argument's implications and concern about the real-world outcome. The phrase 'is that acceptable to you?' puts the burden on counsel to justify a potentially troubling result.”
I don't think -- it's not acceptable, and I don't think that the government would have that authority under 1226. If -- if someone in Mr. Lau's position is required to be admitted, at that point, the inadmissibility -- 1182 is off the table because he has been admitted. And then the question becomes, do they have a basis to initiate deportation proceedings? First, they would have no incentive to initiate deportation proceedings at that point because all there is is a charge. Their incentive is to wait and see whether there's a conviction and, if so, for what offense and, if so, with what sentence. The 1 government has no incentive to use its resources, no good incentive to use its resources, in order to detain people in order to wait and see whether they're convicted. Second, I also don't think that they would have authority to do that. 1226(c) wouldn't apply because 1226(c) is, again, about inadmissibility, and inadmissibility is off the table if we win this case and someone in Mr. Lau's position has to be admitted. And I don't think 1226(a) would apply either because they would simply have no basis for the warrant that 1226(a) requires when there hasn't been a conviction at that point.
Do you know in -- well, I guess, how many LPRs are subject to pending charges? Do you have any idea what that number is? And how many of that would not be defying a court order? Meaning, in my experience, when someone's charged with any kind of meaningful crime in New York, they weren't permitted to travel.
“The Justice is genuinely seeking factual information about the number of LPRs subject to pending charges while also drawing on personal experience to probe the practical scope of the issue. The tone is inquisitive and exploratory rather than hostile, blending clarifying questions with intellectual engagement about real-world implications.”
Right. So a couple points on that. One, at the cert stage, the government argued that this was an important 1 case because it affected a lot of cases, a lot -- a lot of -- a lot of pending cases with returning LPRs. They provided no statistics on that. We don't have those statistics. We tried to call them out on their failure to provide statistics. They didn't come back with any. You would think that the number would be relatively few, in part for the reason that you suggest, Justice Sotomayor. If somebody has committed a very serious crime under state law, presumably, the state authorities would prevent that person from -- might either detain that person or, at a minimum, restrict their right to travel out of the country. So the universe of cases in which an LPR is returning to the United States with a pending relatively minor state offense is probably quite small.
And even so, you could imagine a world, like the one that I tried to explore with Mr. Joshi, that there are likely a lot of LPRs who leave the country and come back. And I suppose, under the government's rule, that if we just need 1 suspicion by the border patrol officer or some as yet to be determined level of concern, we could have a problem of people just having their green cards removed on the basis of some suspicion that they might have committed a crime of moral turpitude in the opinion of the border patrol officer. Is that -- is that a legitimate concern?
“The Justice is explicitly articulating a concern about the implications of the government's rule — that LPRs could have their green cards removed based on mere suspicion by a border patrol officer. The phrase 'Is that a legitimate concern?' and 'we could have a problem' signal genuine worry about negative consequences, making concern the dominant sentiment, with some engagement as the Justice explores the hypothetical scenario they introduced.”
I -- I think that -- I think it is a very real risk that if the Court rules in favor of the government in this case and gives the government that power that the power may be used for all it's worth. And so you can imagine a situation where border officers -- and I'm not suggesting that this is as part -- as part of an -- an overarching policy -- but where individual border officers do decide to just parole returning LPRs in large numbers. They don't need to satisfy any standard under the government's view other than whatever satisfies the officer. And then that can just -- that can just continue indefinitely while the government pursues a fishing 1 expedition until --
Well, Mr. Dvoretzky, is -- is -- does your argument depend on our acceptance of this conspiracy theory?
“The use of the dismissive phrase 'conspiracy theory' signals skepticism bordering on hostility toward the argument's foundation, while the direct questioning of whether the argument 'depends on' accepting a questionable premise challenges the entire structure of the counsel's position. The framing suggests the Justice finds the underlying theory dubious or unpersuasive.”
No. It -- it depends on -- it's simply the logical consequence of the government's argument that if there is no meaningful check on the ability to parole LPRs, then that power might be used. And it might lead to a situation where, again, LPRs are paroled just based on a mere suspicion, as your own hypothetical suggested to Mr. Joshi early on in the argument, you look kind of fishy to me. That can then go on for a long time.
Yeah, but that's not what we have here. We have a criminal charge. And the -- the immigration officer didn't make that up. The charge was leveled by the State of New Jersey. I guess the State of New Jersey is in on this conspiracy?
“The Justice is forcefully challenging the respondent's argument with a rhetorical question ('I guess the State of New Jersey is in on this conspiracy?') that implies the argument is absurd, combining strong skepticism with a touch of sarcasm that edges toward hostility. The dismissive 'Yeah, but that's not what we have here' signals pushback against the framing.”
Again, I don't think it's a conspiracy, but what I do think is that the charge is not -- a charge does not show that the person has actually committed the 1 offense, that there's still a -- a presumption of innocence at that point. And the charge doesn't show that he's committed the offense.
Well, it doesn't say -- 5 doesn't say was convicted. How about Romanette iii, has engaged in illegal activity after having departed the United States? Same rule there?
“The Justice is pointing out that the statutory text doesn't use the word 'convicted,' suggesting a flaw or inconsistency in counsel's interpretation, and then probing whether the same logic applies to another subsection. This combines textual skepticism with genuine clarifying inquiry about the scope of the argument.”
I think it would be the same rule. The question is, is there some evidence before the officer or does the LPR admit to something in an interview? Again, people do admit to things in interviews that perhaps they shouldn't, and -- and that's how that would be applied. But, again, to -- to the --
Let's say an -- an LP -- I'm sorry. Go ahead.
“This is a procedural utterance where the Justice begins to pose a hypothetical but defers to counsel mid-sentence. The 'I'm sorry. Go ahead.' indicates standard courtroom courtesy with no emotional valence, making it predominantly neutral.”
An -- an LPR leaves the United States, goes to France, flies back to the United States. While the plane is in the air, the federal government receives an urgent message from the French police, he shot somebody while he was here just before he got 1 on the plane, but he hasn't been convicted, and in that instance, he hasn't even been charged. Would he fall -- would that person fall within Romanette iii, has engaged in illegal activity after having departed the United States?
“The Justice is constructing a detailed hypothetical scenario to probe the boundaries of 'Romanette iii' and test how the legal standard applies in edge cases (uncharged, unconvicted conduct abroad). This is characteristic intellectual engagement — exploring the statute's reach through a concrete fact pattern — with some concern about potentially overbroad application.”
I -- I don't think so. I think, in that situation, we -- we don't know that. But, again, all of this goes to the question of what is the level of proof required at the border. That question has not been briefed. These are complicated questions that are not directly answered by the statute. They involve background principles. They might involve policy considerations. None of that has been briefed. And, in fact, the government expressly disclaimed that in the cert briefing and didn't present it to the Second Circuit either.
Did I understand your -- your answer to Justice Alito's question was no, he could not be 1 detained?
“The justice is genuinely seeking to confirm their understanding of the respondent's previous answer, using classic clarifying language ('Did I understand...') to verify the position taken in response to Justice Alito's question. There is no clear hostility or strong skepticism, just a neutral request for confirmation.”
All you have is a phone call from the French police saying we think he just shot -- shot somebody, he comes to the border, and the -- the officer at the border cannot detain him?
“The Justice is challenging the respondent's position by presenting a stark hypothetical scenario where a suspected shooter cannot be detained at the border, clearly doubting the practical implications of the argument. The incredulous framing ('and the officer at the border cannot detain him?') signals strong skepticism about the respondent's legal position, with underlying concern about the real-world consequences of such a rule.”
I think that would be no more than the equivalent of a charge, which doesn't prove that he actually engaged in the conduct. But, again, whether or not that would be sufficient, I think the point is there is some burden at the border to -- to show that one of these exceptions was satisfied, and the --
No, no, I know your -- I know your general rule. It just seems to me to be pretty bizarre to say that in that situation they couldn't even be detained.
“The Justice dismisses the counsel's explanation ('No, no') and uses strong language ('pretty bizarre') to challenge the logical outcome of the rule being argued, signaling both skepticism toward the argument's implications and mild hostility through the dismissive interruption and loaded characterization.”
Again, perhaps he -- perhaps he could be detained in that situation. My point is none of this has been fleshed out. These are questions that the government has actually disclaimed.
So they -- 1 they could say, look, all I have is a call from the -- the -- the police in France that you just killed somebody, we need to flesh that out a little bit?
“The Justice is exploring a hypothetical scenario about the adequacy of information for detention purposes, using a concrete example to probe the limits of the argument. This reflects intellectual engagement with the legal question while also seeking clarification about how the rule would work in practice.”
Well, it -- it -- what it might be is probable cause for -- for a non-immigration arrest in that situation. You could imagine that, that it satisfies probable cause. But whether probable cause is enough to show that one of these exceptions applies, it doesn't show that the person -- a tip does not show that the person has actually committed an offense.
No, it's not a -- it's not a tip. It's a call from a French police official.
“The Justice is sharply correcting the counsel's characterization of the information as a 'tip,' insisting it should be understood differently. The emphatic 'No' and the corrective framing suggest both skepticism toward the argument and a degree of hostility in dismissing the characterization outright.”
So -- so, if it's a call from French police officials, you could take that as a basis, I would think, for -- wholly apart from the immigration laws, for arresting the person and potentially extraditing them to France on that basis. That, I think, is a different question than what's presented by -- by this case or by these exceptions here.
Can I ask you a question about the -- I'm sorry, Mr. Chief Justice, were you finished?
“This is purely procedural courtesy — a Justice checking whether the Chief Justice has finished speaking before interjecting with a question. There is no substantive content, emotional valence, or argumentative intent.”
Okay. About the burden of proof, I thought your argument depended on it being clear and convincing evidence. Why would you say that that hasn't been briefed? I might not be following -- I mean, I know that Mr. Joshi is saying, well, for parole, there's a satisfied standard and then we defer the admissibility determination and that is by clear and convincing proof in the context of the removal proceeding. But I thought that you did have a position that it's clear and convincing at the border.
“The Justice is primarily seeking clarification about the respondent's position on the burden of proof standard, expressing genuine confusion about why counsel says the issue hasn't been briefed when the Justice believes it has been argued. There's mild skepticism embedded in the questioning, as the Justice is probing an apparent inconsistency in counsel's position.”
So what our argument depends on, because of the way in which this case has been teed up from the Second Circuit on, is that there is a determination that has to be made at the border.
The government's 1 position in the Second Circuit was we have no burden at the border. Our only burden is in the ultimate removal hearing. So our position, again, the way this has been teed up, is yes, you do have a determination -- an obligation to make a determination at the border. Now the government has never challenged, never disputed that if a standard -- or until the -- until the end of this case has not disputed that if a burden applies on it at the border, that that border -- that that burden is clear and convincing evidence. Now, if we were to brief and argue what --
I guess I don't really understand Mr. Joshi to have said this. And he might be right or he might be wrong. But, as I understand it, he says there is a burden at the border or maybe he says this was like part of his 1, 2, 3, answer. One is that there's really no burden at the border, but 2 was there's like a, you know, are you reasonably satisfied burden at the border.
“The Justice is genuinely trying to reconstruct and clarify opposing counsel's argument, using hedged language ('I guess,' 'he might be right or wrong') to signal intellectual openness. The effort to accurately characterize the opposing argument's numbered structure reflects genuine clarification-seeking rather than skepticism or hostility.”
That is what he says 1 today. The point is that 2 and 3 in his three-part answer are new as of today and the merits reply.
And -- and why is that? That, you know, maybe I haven't focused enough on this, but when I'm -- I'm staring at the QP in the -- in the first brief, and it says whether to remove as inadmissible an LPR, blah, blah, blah, whether to remove that person, the government must prove that it possessed clear and convincing evidence that the alien committed the offense at the time of his reentry. So why doesn't that set up the question that you're saying was not involved?
“The Justice is pushing back on counsel's claim that a particular question was not involved, by pointing directly to the Question Presented in the brief and asking why it doesn't establish exactly what counsel is denying. The 'blah, blah, blah' phrasing and the direct challenge ('why doesn't that set up the question') signals skepticism, while the admission 'maybe I haven't focused enough on this' adds a genuinely clarifying dimension.”
I take your point about the question presented, Justice Kagan. That's precisely why in the BIO we said: Wait a minute, it looks like your argument might depend on the Court deciding not only whether there is a burden at the border but what that burden is. And this case would be a poor vehicle for it because you didn't raise that issue of what the burden would be in the Second Circuit. 1 Cert reply, page 11, what they then came back with and said is, "To confirm, the government is not challenging the clear and convincing standard. This question is about when the government must carry that burden. Because the Second Circuit created a circuit conflict and disrupted immigration enforcement rather than" -- sorry, "disrupted immigration enforcement by incorrectly requiring the government to carry that burden at the border, this Court's review is" -- "is warranted." The whole case was teed up on the assumption that if a standard applies at the burden, it's clear and convincing, but their argument was there is no burden at the border at all.
But that's because they thought that they could parole at the border. I think, if we accept your argument that the admissibility determination has to be made at the border, then it necessarily means that the clear and convincing standard applies, as the government has teed up this case. I agree, for purposes of this case, they said, as for the admissibility 1 determination, clear and convincing is the standard. But, if you win, it's necessarily saying that the clear and convincing determination applies at the border. I might not be tracking.
“The Justice is working through the logical implications of respondent's argument, probing whether accepting it necessarily leads to a specific conclusion about the clear and convincing standard applying at the border. The final 'I might not be tracking' signals genuine uncertainty and some self-doubt, blending skepticism about the argument's implications with a clarifying attempt to ensure they understand the position correctly.”
I -- I don't think that's quite right, Justice Barrett.
If -- if we win, all the Court needs to hold is that contrary to the government's initial argument and arguments to the Second Circuit, Judge Sullivan was correct that there is a burden at the border. The government does need to show at the -- as of the time at the border the returning LPR was subject to one of the exceptions. The Court could --
So the government can parole -- you're conceding then that the government can parole in Mr. Joshi's kind of 1, 2, 3 formulation that he can parole, the officer can do so at the border, but you're just saying, well, maybe it's not clear and convincing?
“The Justice is pressing the respondent to confirm a concession, referencing opposing counsel's framework ('Joshi's 1, 2, 3 formulation'), which signals skeptical probing of the respondent's position. However, the question also has a clarifying dimension as the Justice seeks to pin down exactly what is being conceded regarding the evidentiary standard.”
No. He -- he can 1 parole at the border.
Our argument would be -- again, if it were briefed or in a -- in a future case, our argument would be that the correct standard is clear and convincing evidence. But the government would be free to argue that it's something less. The government would at that point be free to argue, and the BIA could have the first crack at this, to say, okay, we accept the Court's holding that there is a burden at the border; we think that's less than clear and convincing evidence.
I am so confused, though. I thought that your argument was that they had to make the determination whether one of the exceptions applied at the border, which goes --
“The Justice explicitly states confusion and is seeking to clarify their understanding of the respondent's argument, using phrases like 'I am so confused' and 'I thought that your argument was,' which are hallmarks of a clarifying question. There is mild skepticism in the challenge to the apparent inconsistency, but the dominant tone is genuine attempts to understand the position.”
-- to whether they were seeking admission and that that standard was clear and convincing. And if they have to make the admissibility, like, whether one of these exceptions applies, so whether the LPR 1 counts as someone seeking admission or not, why wouldn't -- if the admission -- if that -- if that determination has to be made at the border, why wouldn't the clear and convincing standard apply on your theory of the case?
“The Justice is probing a tension in the respondent's legal theory—specifically challenging why the clear and convincing standard wouldn't apply if admissibility determinations must be made at the border. The repeated 'why wouldn't' phrasing signals skeptical pressure on the respondent's position, while the convoluted structure suggests some genuine clarification-seeking as well.”
Again, I think it would. Under Mr. Joshi's theory of the case, they seem to now be acknowledging that there is a determination that has to be made at the border. But he says perhaps that standard is just determination to the satisfaction of the officer, or maybe it's the Third Circuit's standard at most, determination supported by probable cause. The question of what standard should apply at the border is something that the BIA could explore in another case, the lower courts could explore in the first instance, but it's not something that has been briefed or fleshed out here other than in today's argument and in passing in the reply brief.
And that's because, Mr. Dvoretzky -- I'm just trying to make sure I understand as well. I was, with Justice Barrett, a little confused. So it's because 1 the government's initial argument was that we don't have to have the border agent determining whether or not the person is in any of those buckets they can just parole the person in?
“The Justice explicitly states they are 'just trying to make sure I understand' and acknowledges being 'a little confused,' signaling a genuine attempt to clarify the government's argument rather than challenge it. The tone is inquisitive and collaborative, aligning with a clarifying sentiment.”
That was their original thing, that we -- you don't have to -- and now the government is saying we admit that the person has to be seeking admission and, therefore, one of these five have to apply, but now they're arguing the standard for determining whether or not one of those applies is something less than clear and convincing?
“The Justice is highlighting an apparent inconsistency or shift in the government's legal position — noting they originally argued one thing and now appear to be arguing something lesser — which signals skepticism about the coherence of the government's argument. There is also a clarifying element as the Justice is summarizing and confirming the current state of the government's position.”
Right. Their -- their argument was parole first --
-- figure out whether parole was proper later. Judge Sullivan, for the Second Circuit, correctly rejected that argument because that is not the sequence that the INA contemplates.
And you understand them to today be agreeing that that's not the sequence. We need to have a determination -- some determination made. And now the dispute 1 is over what level of proof is necessary --
“The Justice is actively working to frame and clarify the state of the dispute between the parties, summarizing what both sides seem to agree on and pinpointing where the real disagreement lies. This is primarily a clarifying effort to map the legal landscape, with some engagement as the Justice intellectually organizes the argument.”
-- to make that determination.
“This fragment appears to be the tail end of a sentence, likely cut off mid-utterance, providing insufficient context to determine any meaningful sentiment. The procedural/incomplete nature of the text suggests a neutral classification is most appropriate.”
They -- they just think, here today and in passing in the reply brief, that that standard of proof is just to the officer's satisfaction, or maybe it's probable cause. We would say it's clear and convincing evidence. None of that has been briefed or developed. Those should be issues for another case after this Court either affirms on the narrow timing question or DIGs. And, look, I'm not going to be the lawyer who stands here and tell -- tells you what the Court will or won't do in an April argument, but I think this would be an -- an appropriate case in which to DIG rather -- (Laughter.)
You should have been here yesterday. (Laughter.)
“This is a lighthearted, humorous aside referencing prior proceedings that elicited laughter from the courtroom. It carries no substantive legal sentiment and is essentially a procedural/social remark with no emotional valence toward the argument itself.”
An appropriate case in which to DIG rather than take on these questions.
Just to be clear, we will take appropriate action without regard to -- (Laughter.)
“The phrase 'just to be clear' signals a clarifying or administrative statement, likely a procedural reminder about time management or decorum. The laughter suggests a lighthearted, humorous moment in the courtroom, giving it a slightly playful but largely neutral tone.”
-- without regard to the calendar. Justice Thomas? Justice Alito?
“This is a purely procedural utterance where the presiding Justice is managing the flow of questioning by inviting other Justices (Thomas and Alito) to ask questions. There is no emotional valence or substantive legal content.”
I am a bit baffled by what you're saying about what question is before us. I read the question presented the way Justice Kagan did. The government -- the question presented says the question is whether -- "whether the government must prove that it possessed clear and convincing evidence of the offense at the time of the LPR's last reentry into the United States." And the passage that you read from on page 11 of the cert reply just says, "the government is not challenging the clear and convincing standard. The case is about when the government must carry that burden." So I interpreted that to mean they admit at least for the purposes of this case that clear and convincing is the standard at 1 the removal proceeding. But they never -- but the -- the question of what is the standard at the time when the alien is trying to come back into the United States is something different.
“The Justice expresses being 'baffled' and works through the question presented and briefing text in detail, primarily seeking to clarify what issues are actually before the Court. While 'baffled' suggests mild skepticism about counsel's framing, the bulk of the utterance is a careful, analytical effort to parse the question presented and reconcile it with the government's position—characteristic of clarifying intent.”
I -- I think it is something different, but, as I read page 11, I think what that is saying is the case is about when the government must carry the clear and convincing evidence standard. It's not about whether there is some other burden or standard that the government could conceivably have to satisfy instead. It's do we carry clear and convincing evidence at Time 1 or do we carry clear and convincing evidence at Time 2? That's the premise on which the government brought this case to the Court.
Yeah. And you're saying they have to do it at Time 1.
“The Justice is paraphrasing or restating the counsel's argument to confirm understanding, signaling a clarifying intent. The 'Yeah' suggests acknowledgment, and the restatement 'you're saying they have to do it at Time 1' is a classic confirmation-seeking move rather than a challenge.”
We're saying that it has to be at Time 1 because they haven't disputed that, if there is a burden, that is the burden. If they want to dispute that, they are free to do so in another case where they present that to the lower courts, perhaps with BIA guidance to go on.
That's the point, which is they've never said to us, except here, this is our burden at the border.
“The Justice is highlighting an inconsistency or novelty in the respondent's position—that they only articulated this burden standard before the Supreme Court, not previously—which is a classic skeptical move challenging the credibility and consistency of the legal argument.”
Correct. And -- and in -- in brief passing in the reply brief for the first time.
They've suggested there's no burden at the border --
“The Justice appears to be referencing the opposing side's argument about burden at the border, likely to probe or challenge it. The phrasing suggests the Justice is setting up a question or point of contention, indicating a mix of skepticism toward that claim and clarifying intent to get the respondent's response.”
That's right, Justice Sotomayor.
Justice Kagan? Justice Gorsuch?
Briefly. I -- I -- I had thought the case -- maybe I'm -- you can correct me, but I -- I thought the case was about whether the government could satisfy its burden in a removal proceeding by clear and 1 convincing evidence showing at that time the facts without regard to what happened in a separate parole proceeding at the border.
“The Justice is explicitly inviting correction ('maybe I'm -- you can correct me') and restating their understanding of what the case is about, which is a classic clarifying move. The hedged, self-doubting language ('I had thought,' 'maybe I'm') signals genuine uncertainty and a desire to verify their framing rather than challenge counsel's position.”
I wouldn't think of it as a separate parole proceeding at the border.
I -- I think what the case is about is whether --
It's a removal proceeding, right?
“This is a short, direct question confirming a basic procedural fact about the nature of the proceeding. The 'right?' tag question indicates the Justice is seeking confirmation or clarification of a foundational premise, with minimal emotional valence.”
That's what's before us. And the question is, does the government have to prove its burden with respect to whether the immigrant committed the crime by clear and convincing evidence at Time 1 or Time 2, right?
“The Justice is restating the core legal question before the Court to confirm the framing of the issue, which is primarily a clarifying act. There is also intellectual engagement in reducing the dispute to its essential binary (Time 1 vs. Time 2), but no emotional valence or challenge to counsel's position.”
But -- but, Justice Gorsuch, the only way that we ever got to that removal proceeding --
No, I -- I understand.
“This brief utterance is largely procedural and neutral, indicating the Justice has grasped a point being made by counsel. The slight approval signal comes from the affirmative acknowledgment, while the 'No' suggests a mild corrective or dismissive element, but overall the statement is a routine conversational acknowledgment with minimal emotional valence.”
Because there was a 1 parole proceeding that preceded it.
“The Justice appears to be offering a clarifying reason or context about a preceding parole proceeding, likely to help frame the issue or confirm their understanding of the factual background. The tone is informational and clarifying rather than adversarial or evaluative.”
I understand that. Yeah. Okay. Thank you.
“This is a brief, procedural acknowledgment with no substantive content. The phrase 'I understand that. Yeah. Okay. Thank you.' signals closure of a point or exchange, with minimal emotional valence beyond polite acknowledgment.”
Justice Kavanaugh? Justice Barrett? Justice Jackson? Thank you, counsel.
“This is purely procedural language — the presiding Justice is checking whether colleagues have additional questions and then thanking counsel at the conclusion of argument. There is no evaluative or emotional content whatsoever.”
Rebuttal, Mr. Joshi? REBUTTAL ARGUMENT OF SOPAN JOSHI ON BEHALF OF THE PETITIONER
“This is purely a procedural/administrative statement inviting rebuttal argument. It contains no emotional valence, questioning, or analytical content whatsoever.”
Thank you, Mr. Chief Justice. Just four quick points. First, on Respondent's new request for a DIG, I think we've read the -- we've had the QP read aloud a couple of times. We clearly were challenging the requirement that there be a clear and convincing evidentiary requirement at the border. The Second Circuit said yes. We say no. That's all you need to say. That's fairly encompassed in the question presented. As my response to Justice Jackson 1 said, we don't think there is any evidentiary requirement at the border. We think that the government can satisfy its burden, as Justice Gorsuch just said, in the removal proceeding by proving that the -- that Respondent was, in fact, seeking an admission at the time. My -- you know, my -- my friend says that our original position was that we can, you know, parole someone to defer a decision on whether parole is possible and we've only recently switched tracks. We have never said that. He has not quoted a single line from any brief below or here in which we said that. And, in fact, I'll just -- sorry to do this -- read to you from our opening brief in this Court on page 32: "Observing that the INA authorizes the Secretary to parole any alien applying for admission, Respondent has argued that 'the government must determine whether an LPR is treated as an applicant for admission before the non-citizen is paroled into the country.' True enough." We never disputed that. We just said that obligation in no way implies that in 1 subsequent removal proceedings the government must prove that it made the correct determination by offering only the evidence that it had in hand at that prior time. That's what the Second Circuit held. That holding is clearly wrong. And the circuit split it created is intolerable right now. I mean, JFK is in one circuit. Newark is in another. Houston Hobby -- or Houston International is in a third. Each of these three circuits has a different rule, and it's going to be incredibly hard to manage if you DIG this case. And if you affirm, all of the consequences that Justice Barrett and -- and others have been discussing are -- are going to hold. It's -- we're basically going to find that the "seeking admission" clause is -- is unenforceable at the border. That leads me to my second point, which is Mr. Dvoretzky basically said you're going to need a conviction or just an admission of guilt. I don't see how that's consistent with the INA's text. It says "committed an offense." It's certainly not consistent with Romanette iii about criminal activity abroad. 100 It's not even consistent with offenses identified in 1182(a)(2) because most of them, as I said, don't require a conviction to be inadmissible, the -- the human trafficking, the drug trafficking, the prostitution, some of the other ones. So you're going to need a conviction just to determine whether you've committed an offense, but then you don't need the conviction to render you inadmissible. That's completely topsy-turvy. That can't possibly be what Congress wanted. And that's to say nothing, as I said, of the other five clauses. If it's clear and convincing, even something as straightforward as Romanette ii, I think, is if you've been absent for 180 days from the country, and suppose a border officer says, well, I see your passport stamp and your round-trip ticket was 200 days ago, so you've been absent for 180 days, and the LPR says, oh, no, I haven't, although that's my round-trip ticket, in the interim, I've been driving back and forth into this country several times, so I don't have 180 days of absence. Does the officer have clear and 101 convincing evidence that the LPR is not telling the truth? I can't imagine that he does. But that's exactly the sort of thing where the officer might say, all right, I'm going to parole you and we're going to figure this out. In 30 days, show up and show me that you've been driving back and forth across the border where we don't stamp your passport, and if necessary, we'll go to removal proceedings and then the IJ will decide on the stand whether he's credible or not. Under Respondent's view, even if that LPR were not telling the truth, too bad because the border officer in the moment didn't have clear and convincing evidence of this untruthful assertion. That, again, cannot possibly be right. Finally, in terms of the -- the statement that my friend made that there's just no meaningful check on the ability to parole LPRs, as I said, number one, there is the presumption of regularity. And you would really have to have a DHS-wide conspiracy for the parade of horribles that Respondent talks about to materialize. 102 It is telling that our rule has been the background rule for decades, if not over a century. It certainly has expressly been the rule in this circumstance in the Fifth Circuit for more than a decade. You haven't seen these consequences. The Third Circuit, since 2011, probable cause but still much lower than clear and convincing. You haven't seen these circumstances. So I just don't think it's reasonable to say that. Congress provided that parole decisions are unreviewable. It made a judgment that they're unreviewable. And I know that's always going to cause some heartburn and difficulty when you say something's unreviewable, but unless you think all of DHS is composed of, to use a phrase, monsters or idiots, that's just the system that Congress enacted.
Thank you, counsel. The case is submitted. (Whereupon, at 11:42 a.m., the case was submitted.)
“This is a purely procedural closing statement marking the end of oral argument, with no emotional valence or substantive content whatsoever.”