Last arguments of the term: huge cases for the Fourth Amendment and immigration

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

It’s always a wonder to me how some of the most important cases of the Supreme Court’s term receive the shortest amount of time to decide. But that is undoubtedly the impact of the court’s schedule – a schedule imposed by tradition not by law – of hearing arguments in huge cases in late April and then pushing out final opinions by the end of June, just a few weeks later.

The next two weeks will see – well, hear, because the court still does not allow video or even photos – oral arguments in two important immigration cases as well as one of the biggest Fourth Amendment cases in years. I’ll take a quick look at each below. I’ll then conclude with my thoughts (“out of my lane”) on the pending “election day” case that could disrupt settled expectations about mail-in voting for more than a third of the states this November.

Two huge immigration cases, adding to an already significant immigration term

I count immigration decisions as within the circle of “criminal law and related” cases because understanding immigration issues are often essential to criminal defense as well as prosecution. As the ABA Criminal Justice Standards direct (Standard 4-5.5), criminal lawyers should give “special attention to immigration status and consequences.” Immigration is a specialized and highly technical area of law and I profess no special expertise. I refer readers to my fellow SCOTUSblog columnist, César  Cuauhtémoc García Hernández, for more detailed analyses. This term has already seen argument in three significant immigration cases. October Term 2025 is undoubtedly going to be a “big one” for that topic. Below is my quick take on two additional immigration cases set for oral argument starting next week.

Blanche [the current acting attorney general] v. Lau (argument scheduled for Wednesday April 22). I admit that I find the briefing complex and a bit unclear, and that I am hardly expert enough to perfectly describe this case. But here goes:

“Lawful permanent residents” in the United States are just what the term implies: non-citizens who have been granted lawful status here, to stay permanently so long as they observe relevant domestic laws. Once granted that “green card” status, LPRs are permitted to travel in and out of the United States. And as the court’s own case description explains, “a lawful permanent resident (LPR) who is returning to the United States after a trip abroad is generally not ‘regarded as seeking an admission into the United States.’” They have already been “admitted” in a permanent way.

In this case, 69-year-old Muk Choi Lau has lived in the United States for almost 20 years as an LPR. In 2012, he took a short trip to his homeland and came back to New Jersey. Under the statute quoted above, Lau says he was not “seeking admission” when he returned. However, Lau had been charged with trademark counterfeiting (to which he later pled guilty and received a two-year probation sentence). On that basis, an immigration officer allowed Lau back into the country but said he was being “paroled” (a discretionary decision to let immigrants into the country) rather than being let back in without strings, because of the pending-but-not-yet-proved criminal charges. Later, after Lau pled guilty, the government sought his removal as “inadmissible” because he had been paroled in as opposed to pursuing the deportation procedures that would normally be applied to LPRs (and which I gather are more difficult for the government).

Lau contends that an LPR returning to the United States after a trip abroad is “not seeking admission” and the immigration officer therefore should not have paroled him into the country but admitted him as with any LPR. The government, on the other hand, contends that the pending criminal charges were enough to render Lau “inadmissible” when he returned. The LPR statute states that an LPR who “has committed” a criminal offense cannot claim the general “not seeking admission” rule, and both sides agree that a “clear and convincing” evidentiary standard applies to the parole determination.

Immigration proceedings went against Lau. But on appeal, the U.S. Court of Appeals for the Second Circuit ruled that because all the immigration officer at the airport knew when he marked Lau as paroled was that some criminal charges were pending, he should have applied the “not seeking admission” rule. In other words, the dispute here may boil down to two questions: (1) timing, and (2) whether criminal charges at the time of return are actually “clear and convincing” evidence. To put it another way, when Lau returned to the United States from his trip abroad, did the officer at the airport have enough evidence to not “admit” him? The solicitor general argues that the government met the statutory standard, both at the airport in 2012 and now, so Lau may be removed.  

My SCOTUSblog colleague  César contends that the government is arguing that it may “presume guilt” just from charges. But perhaps (the briefing is unclear) the government is arguing that its evidence of Lau’s trademark counterfeiting “as a whole” is enough, even if the officer at the airport did not know all of that evidence. Specifically, the government argues that requiring line immigration officers at busy airports to make “clear and convincing” evidentiary determinations rather than just “paroling” questionable persons back in to face pending charges “defies common sense and realit[ies].” The solicitor general’s reply brief thus asserts an aggressive, inferential view that Congress neither imposed nor intended an “at-the-border” evidentiary requirement. But I expect oral argument to reflect puzzlement at what, exactly, the government’s position is.

Mullin v. Doe (scheduled for argument on Wednesday April 29, the final scheduled argument day of the 2025-26 term). This case is more significant (potentially affecting over 1.3 million people), but I think easier to describe, than Lau. May the Trump administration end Temporary Protected Status that was previously granted to Syrian and Haitian immigrants under a statutory program begun by Congress in 1990? My SCOTUSblog colleague Kelsey Davis published an “explainer” about the case (actually two consolidated cases) last month.

The TPS statute permits the secretary of Homeland Security to designate countries to which it is unsafe for immigrants to return when their home countries are deemed (for various reasons) too dangerous. Seventeen countries have been so designated since 1990; President Donald Trump’s DHS secretary has announced that DHS intends to revoke that designation for nationals of 13 of those countries, finding that conditions there no longer meet the statutory requirements. (Interestingly, the Department of State still advises travelers against journeying to many of these countries due to their dangerous conditions.) The changes to TPS rules have been challenged by many lawsuits, arguing both procedural and substantive equal protection (race and ethnicity) problems. 

Two federal circuit courts have upheld stays of the administration’s designation changes in favor of challengers from Haiti and Syria in the cases to be argued on April 29. When the solicitor general sought a reversal of those actions by seeking an “emergency” stay on the court’s interim docket, the court instead treated the requests as petitions for review (certiorari) and set them for expedited argument. The solicitor general argues that the homeland secretary’s TPS decisions are statutorily unreviewable (that is, he says Congress has barred judicial review of such designations). The SG has also argued that last year’s stays granted by the Supreme Court in a Venezuela TPS case already (even dispositively?) shows “likelihood of success on the merits.” Presumably disagreements about that assertion among the nine justices led to switching the Haiti and Syria cases from stay applications to having full briefing and argument. I have to imagine, however, that a majority of the justices are inclined, at least at this pre-argument point, to support the Trump administration’s position.

The most important Fourth amendment case in almost a decade?

Chatrie v. United States (scheduled for argument on Monday, April 27). I wrote about this case last month, and I expect many others to be writing about it now. So I’ll be relatively brief here. How should the Fourth Amendment apply to “geofence” searches – government requests to large data holding companies for information that can lead to precise identifying data for specific people? (A geofence is a portmanteau used recently to describe digital (meaning electronic, physically invisible) borders on a computerized process.) 

At issue in this case was a court-approved request to Google, following a bank robbery, to run through its location data for millions of customers and narrow it down to location data for specific individuals on a specific date, time, and place. The place described in the warrant was a roughly 1,000 foot area that included a bank (and also a church). A three-step process ultimately identified Okello Chatrie and two other persons as being located in the area at the specified time. With a bit more information, Chatrie was arrested and convicted of bank robbery. At no time after the initial mass information search warrant was issued to Google was a magistrate further consulted.

Eight years ago, the court addressed searches of cellphone data for the first time. In Carpenter v. United States, Chief Justice John Roberts, quoting Justice Antonin Scalia, wrote that the Fourth Amendment written in 1790 must be applied so as to not leave the privacy of Americans today “at the mercy of advancing technology.” Canvassing cellphone location data is a “search,” and a judicial warrant is required, the court ruled. But it did not further discuss “how to apply” that ruling beyond that “narrow” holding.

Not only has technology advanced in the subsequent eight years, but the membership of the court has also changed. Only three members of the 5-4 Carpenter majority remain, and three of its dissenters (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch) are also around. That leaves the “new” justices (Justices Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson) as relatively unknown votes, even though some may want to make predictions based on what they perceive as their ideologies. In any case, the solicitor general now argues that cellphone users have no “reasonable expectation of privacy” in their location data, and that they “waive” it in any case by sharing it with cellphone companies. Chatrie’s reply brief has not yet been filed, but his primary brief argues that the government’s broad “fishing expedition” request to Google is akin to a “general warrant” that the Framers expressly condemned, and that it lacked “particularity” as to any individuals as the Fourth Amendment requires.

Given the many other new technological sources that, today, hold massive amounts of personal information given to them by users as necessary to live in today’s world, this case has implications far beyond our use of cellphones. Orin Kerr, a prominent Fourth Amendment scholar, has filed an amicus brief expressing some doubts about Chatrie’s arguments. Kerr is a former DOJ computer-fraud lawyer, and his amicus is filed in support of the government, with a number of expressed misgivings about the government’s position. I think Kerr is mistaken to argue that this “search” can be meaningfully distinguished from Carpenter, and I truly do not understand how a warrant that allows indiscriminate surveying of millions of customers files, even if anonymously, is “particularized” enough for the Fourth Amendment, at least not without further magistrate review when individual identification is then requested. But whatever one may think, it is not an overstatement to describe Chatrie as one of the most significant Fourth Amendment cases in decades. I hope you will, like me, listen to the April 27 arguments with both fascination and trepidation.

Out of my lane

At the oral argument in Watson v. RNC last month, a number of justices posed hypotheticals imagining potential problems with late-received mail-in ballots.  (The case asks the question whether an old federal statute (and later versions) that set “election day” as the first Tuesday in November, also means that ballots must be received, and not just cast, by that day.) The justices’ hypos weren’t, apparently, based on any real-life examples (Gorsuch went particularly far afield) – but as a law professor I guess I have to take the bad with the good.

What was surprising is that none of the initial questions focused on the constitutional text (Article I, Section 4, clause 1), which says that “the Times, Places and Manner of holding [federal] Elections …, shall be prescribed in each State.” Some 30 states currently allow mail-in balloting, and they have all decided to allow a short grace period for receipt of ballots to account for slow mail. Everyone agrees that ballots must be cast by election day; the question in Watson is whether federal statutes – first written in 1845 and again in 1872 and 1914 – require that “election day” means “receipt,” as well as casting, of ballots by that day. The words themselves say nothing, let alone something “plain,” either way.

The constitutional text in Article I does go on to say that, after states have set the time and manner of elections, Congress can change state practices if it sees problems, hypothetical or not. So the question here is whether Congress said anything to prohibit late mail-in ballot counting in its old statutes. Historically (and today’s legal fights always involve disputes about history), battlefield voting by proxy went on during the civil war; and voting by soldiers (and other Americans) overseas has long been allowed. The 30 states that allow mail-in voting all give some grace period for counting ballots so long as they are cast by the day of the election – and given the tens of millions of ballots that must be counted, this seems necessarily realistic. There seems to be no history that Congress had mail-in voting in mind at all in the 19th century, let alone that they intended to prohibit those grace periods. In light of the original constitutional text giving states primary authority, finding that a federal statute prohibits long-accepted state practices based purely on inferences strikes me as an unsatisfactory interpretive method for everyone.

One might think that if real problems were arising – say significant fraud or wild post-election result swings – the answer would be for Congress to exercise its constitutional power to specifically legislate about them. Certainly a “received by election day” law could be valid – although it would create its own problems, including folks having to vote a week early and miss late-breaking developments if they want to vote by mail. We all know that the postal system is in trouble, and that greeting cards to family don’t get delivered overnight. Sometimes it takes a week or more. But it is still a pretty amazing system! Late-receipt for last-minute ballots makes practical sense, as 30 states have determined. It seems wrong to me to rely on statutory silence from well over a century ago for the Supreme Court to do the job that the Constitution expressly left for Congress if state procedures aren’t working.