Court to consider rights of lawful permanent residents accused of committing a crime

During oral argument on Wednesday in Blanche v. Lau, the justices will consider the rights of lawful permanent residents who have been accused of committing a crime that puts them at risk of being removed from the country.

The case centers on Muk Choi Lau, a Chinese national who became a lawful permanent resident of the United States in September 2007. In May 2012, Lau was arrested and charged under New Jersey law for allegedly selling nearly $300,000 worth of knock-off Coogi shorts. While awaiting trial, Lau left the U.S., but he returned in June 2012 and encountered immigration officers at John F. Kennedy International Airport in New York.

Lawful permanent residents, who are also known as green card holders, like Lau typically have the freedom to leave the U.S. for short periods and then return without risking their immigration status. The Immigration and Nationality Act states that, under most circumstances, they should “not be regarded as seeking an admission into the United States” and should instead be treated as if they have a right to reenter. Among the exceptions is if they have committed “a crime involving moral turpitude” – that is, a dishonest or immoral act, such as fraud or theft.    

Immigration officers, having discovered Lau’s pending counterfeiting charge, determined that he was subject to the “moral turpitude” exception. Rather than admit him into the U.S. – that is, allow him to enter the country and stay indefinitely – they paroled him, which means that they allowed him to temporarily enter the country “to face prosecution for his counterfeiting offense” but deferred consideration of his eligibility for admission.

One year later, in June 2013, Lau pleaded guilty to trademark counterfeiting. He was convicted and sentenced to two years’ probation. In March 2014, the Department of Homeland Security began the process of removing Lau from the country on the ground that he was ineligible for admission into the U.S., rather than on the ground that he had violated the terms of his green card. In other words, the government proceeded as if he was not a lawful permanent resident, which required Lau to prove he was eligible for admission, instead of requiring the government to prove he could be deported.

Lau fought his potential removal in multiple ways, including by applying for a waiver and asserting that counterfeiting is a “petty offense,” rather than a crime of moral turpitude. Most relevant to his Supreme Court case is his challenge to immigration officers’ decision to not admit him into the country in June 2012. He contended that the removal proceeding could not move forward because he had been “improperly classified” when he was paroled and should have been treated as a lawful permanent resident in good standing and granted admission.

An immigration judge sided with the government, holding that, “because Lau had already committed the crime of trademark counterfeiting when he sought reentry into the United States, he was properly classified as ‘inadmissible’ upon his arrival and was appropriately paroled.” Lau appealed to the Board of Immigration Appeals, which affirmed the judge’s decision.

Lau then asked the U.S. Court of Appeals for the 2nd Circuit to review the BIA’s decision. That appeal proved successful. The 2nd Circuit agreed that Lau had been improperly classified by the immigration officers at JFK, emphasizing that the exception on which officers relied when declining to admit him states that “[a]n alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien … has committed” a disqualifying offense. The court held, using an evidentiary standard described in a 2011 decision from the BIA, that immigration officers could not invoke that exception without “clear and convincing evidence” that Lau had committed such a crime.

“Critically, the INA does not provide that [a lawful permanent resident] may be treated as seeking admission when,” as in Lau’s case, “he has been ‘charged with a crime’ or is ‘believed to have committed a crime,’” Judge Richard J. Sullivan wrote for a unanimous three-judge panel. “[W]e do not see how charging documents alone – without more – could carry DHS’s burden of demonstrating that a crime had been committed at the time of [a lawful permanent resident’s] reentry.”

The court vacated the final order of removal and instructed the BIA to terminate removal proceedings. However, it noted that DHS could begin a new deportation proceeding under a different part of the INA, on the ground that Lau had been “convicted of a crime involving moral turpitude within five years” of being admitted into the country. 

In the ruling, Sullivan acknowledged that other federal courts of appeals have held “that the INA is unclear as to when DHS must” prove that a lawful permanent resident has committed a disqualifying crime to treat that resident like he is ineligible for admission. Unlike the 2nd Circuit, these other courts would have been satisfied by Lau’s eventual conviction, which provided confirmation, after the fact, that Lau had indeed committed a crime before meeting with immigration officers at JFK.

U.S. Solicitor General D. John Sauer highlighted this conflict among the courts of appeals when he asked the Supreme Court to review the 2nd Circuit’s ruling. In January, the justices agreed to determine whether immigration officers needed “clear and convincing evidence” that Lau had committed trademark counterfeiting at the time they paroled him, or if it is, instead, enough for the government to produce that evidence during removal proceedings.  

In the government’s brief on the merits, Sauer first contended that the authority of federal appeals courts to review removal orders does not extend to the decisions immigration officers make at the border or ports of entry. “The INA makes clear that ‘no court shall have jurisdiction to review’ a discretionary parole decision,” he wrote. Even if the 2nd Circuit could review whether Lau was properly paroled, Sauer continued, it could not cabin its review to “only the evidence that immigration officers at JFK had at the time,” because there is “nothing in the INA to support that limitation.” Instead, the INA instructs immigration judges to focus on “‘the evidence produced at the hearing’” before them.

Sauer further argued that focusing on what can be proved at the time of reentry, rather than the “clear and convincing evidence” produced during a future removal proceeding, “is contrary to historical practice and good sense. Immigration officers,” he explained, “must handle a large inflow of aliens each day, making quick decisions about each one. Requiring them to conduct mini-trials with clear and convincing evidence is inconsistent with that role.” Even if they had more time, according to Sauer, they would likely “lack access to relevant evidence.” “The net result would be to effectively nullify the ability to parole [lawful permanent residents,] including to face prosecution.”

In his merits brief, Lau countered that the government is “ignor[ing] clear textual limitations” in order to have an easier route to removing lawful permanent residents from the country. “[I]t would rather be able to pursue inadmissibility proceedings against” these residents “than have to pursue the deportations proceedings that the INA makes clear it must follow,” he wrote. Lau also challenged the government’s claim that federal courts of appeals cannot review parole decisions. “[T]he INA,” he noted, “permits judicial review of ‘questions of law.’” The question of “‘whether a noncitizen is statutorily eligible’ for a discretionary decision like parole” is one such question, Lau said.

Finally, Lau contended that immigration officers are fully capable of assessing whether noncitizens have committed a disqualifying crime – and that they have been doing so for decades. “If federal officials could assess criminal history at the border in the era of wooden ships and oil lamps, it’s hard to believe that DHS officials can’t do so today,” according to the brief.

The court’s decision in Blanche v. Lau is expected by early July.