Court to decide whether immigration agents can presume guilt

Immigration Matters is a recurring series by César Cuauhtémoc García Hernández that analyzes the court’s immigration docket, highlighting emerging legal questions about new policy and enforcement practices.

Immigration law creates a clear hierarchy of access to the United States. Most people who are not U.S. citizens do not have any right to set foot in the country. By contrast, U.S. citizens can come and go as they please. One rung below U.S. citizens, lawful permanent residents – also known as green card holders – can come and go unless they’ve committed certain crimes.

This month, the Supreme Court agreed to weigh in on the evidence that immigration officials need to treat permanent residents as if they are removable. In Bondi v. Lau, the justices are likely to consider whether border officials can rely on criminal charges alone to decide that permanent residents have committed an offense that can allow the government to remove them from the country.

Muk Choi Lau, a Chinese citizen, became a permanent resident of the United States in 2007. Almost five years later, New Jersey prosecutors charged him with trademark counterfeiting. While the criminal case against him was pending, Lau left the United States.

On his return, immigration officers at John F. Kennedy International Airport in New York decided that Lau should not be admitted into the United States – that is, authorized to enter and remain in the country indefinitely. Instead, the officer allowed Lau to proceed into the country under “parole,” a legal permission to enter the country for humanitarian reasons or significant public benefit.

More than one year later, in 2013, Lau pleaded guilty to the criminal charges. The following year, immigration officials began legal proceedings to strip Lau of his green card and forcibly remove him from the United States.

Lau’s legal right to continue living in the United States hinges on the decision by the immigration officer at JFK Airport to deny Lau admission and instead parole him into the United States. Migrants who have been admitted into the United States can be deported if they are convicted of a crime involving moral turpitude within five years of their admission as a permanent resident. (Courts have described crimes of moral turpitude as “a nebulous concept,” but they have remained part of immigration law since 1891.)

The government claims that Lau’s conviction is a crime involving moral turpitude, but the passage of time – five years and 10 months – between his crime and his admission as a permanent resident means he would likely avoid deportation had he been admitted at JFK. By contrast, migrants who were paroled, rather than admitted, into the United States can be forcibly removed if they commit a crime involving moral turpitude at any time. Simply put, Lau’s conviction would not have affected his immigration status had he been admitted at JFK, but it spelled the beginning of his removal from the United States because he was paroled.

Challenging the government’s efforts to remove him, Lau argued that the immigration officer wrongly denied him admission. An immigration judge and the Board of Immigration Appeals, the administrative unit within the Justice Department that hears appeals of decisions by immigration judges, disagreed with Lau. According to the BIA, federal immigration law permits an officer to deny admission and instead parole a permanent resident into the United States when a criminal prosecution is pending that, if it leads to a conviction, would permit immigration officials to bar a migrant’s entry.

The U.S. Court of Appeals for the 2nd Circuit disagreed with the BIA. In a unanimous opinion for a three-judge panel, Judge Richard J. Sullivan concluded that Lau should have been admitted to the United States, rather than paroled. According to the court, the Immigration and Nationality Act clearly explains that permanent residents who are returning from abroad generally “shall not be regarded as seeking an admission into the United States.” The presumption gives way only in the limited circumstances that Congress identified in the statute, including when a migrant “has committed” a crime involving moral turpitude.

The tricky part is agreeing on when immigration officials have enough evidence to know that someone has “committed” a crime that could lead to their exclusion from the United States. Assuming that trademark counterfeiting is a crime involving moral turpitude – a legal question that the 2nd Circuit did not decide – there is no question today, 12 years after Lau was convicted, that he would lose the presumption of reentry that Congress wrote into immigration law.

But when the immigration agent stationed at JFK denied Lau admission, Lau had not been convicted. Back then, federal officials could not be sure that he had committed the counterfeiting crime. At most, the immigration officer knew that prosecutors had accused Lau of committing the offense. Congress could have enacted a law allowing agents to exclude people based on nothing more than accusations of criminal activity, but that is not what Congress did. Instead, the law that Congress did enact requires more than the possibility that a migrant has committed a crime.

Building on an earlier BIA decision, the 2nd Circuit explained that immigration law requires “clear and convincing evidence” that the migrant committed the crime. Accusations alone fall short. As Judge Sullivan explained, “it will generally be difficult for DHS to find, by clear and convincing evidence, that the alien has committed a qualifying crime at the time of admission if the admission precedes the LPR’s criminal trial or admission of guilt.”

Unlike the 2nd Circuit, the U.S. Courts of Appeals for the 5th and 9th Circuits have previously adopted positions that align with the government’s view. One traditional basis for the Supreme Court to add a case to its docket is to resolve a dispute among lower courts. Though the justices have not publicly explained their reason for intervening, it is likely that the division among the courts of appeals created by the 2nd Circuit’s opinion affected their decision.

When it comes, the court’s opinion will determine how much flexibility immigration officers have to impose consequences on migrants for committing crimes even before it is clear that they in fact committed a crime. The difference between a criminal prosecution and a conviction is important because many people are prosecuted but ultimately not convicted. Allowing immigration officials to act on nothing more than criminal charges that are pending means that migrants can more easily be barred from the United States based on criminal activity that criminal courts later find they did not commit. In a political climate in which immigration agents are adopting increasingly aggressive enforcement tactics, such broader latitude will certainly sweep more people into the immigration detention and deportation pipeline.