The U.S. Supreme Court has made it easier for immigration officers to keep green card holders from reentering the country if they have been accused of a crime. The Court’s 6-3 ruling found the government did not need “clear and convincing evidence” to treat lawful permanent residents as seeking admission, rather than already admitted, when returning to the United States after traveling abroad.
The June 23 decision addressed the case of Muk Choi Lau, a Chinese citizen and green card holder who eventually pleaded guilty to a crime that would have disqualified him from reentering the United States. But at the time he was stopped at the border and paroled into the country, he had not been convicted or entered a plea in the case. Essentially, the Supreme Court’s decision rejected the Second Circuit’s heightened evidentiary standard and permitted immigration officials to treat Lau as an applicant for admission even without clear and convincing evidence of a disqualifying crime. The government later relied on his guilty plea to support removal.
The Supreme Court’s decision vacates an earlier ruling by the U.S. Court of Appeals for the Second Circuit. The appeals court had ruled that to deny a green card holder admission under the Immigration and Nationality Act (INA), immigration officers must conclude, by clear and convincing evidence, that the individual has committed a crime that disqualifies them from entering the United States.
Green card holders are lawful permanent residents who are allowed to live and work in the United States permanently. Generally, green card holders must be readmitted to the United States after traveling abroad. However, the INA allows the government to treat returning green card holders as seeking admission and to deny admission to those who have committed crimes involving “moral turpitude,” which generally requires a dishonest or immoral act by the individual.
Guilty Plea in Counterfeit Goods Case
In June of 2012, immigration officers denied Lau readmission to the United States. Lau had recently been charged in New Jersey for selling counterfeit trademarked goods. While waiting for trial, Lau traveled to China. When he tried to return to the United States, an immigration officer did not treat Lau as already admitted and instead treated him as an applicant for admission. The border agent did not immediately decide whether to admit Lau to the country, instead granting him parole until his criminal case was resolved. Parole allows an individual to enter the United States without being formally admitted. This lets the individual enter the United States without the government making a final determination as to whether they should be admitted, and without detaining the individual.
Lau pleaded guilty to third-degree trademark counterfeiting in June of 2013, and the government began proceedings to have him removed in March of 2014. During these proceedings, the government maintained that Lau was seeking admission to the United States and should not be treated as an already-admitted lawful permanent resident. Lau argued that he was a lawful permanent resident who could be subject to deportation proceedings but could not be denied admission to the country if he had not been convicted of a crime when he returned.
The immigration judge found that a green card holder could be treated as seeking admission to the country for having committed a crime of moral turpitude under the INA, even if he had not yet been convicted at the time of entry. The Board of Immigration Appeals affirmed the ruling
Lau appealed to the Second Circuit, which found the government must prove that he committed a crime by clear and convincing evidence while he was at the border before finding that he couldn’t be admitted. However, that finding did not apply to any future deportation proceedings the government may bring against Lau. The appeals court then ordered the government to terminate Lau’s removal proceedings based on inadmissibility. It did so without prejudice, so the government could instead charge him as deportable.
No Evidentiary Standard in INA
The court split along ideological lines on Lau’s case, with the six conservative justices concluding that the INA did not include a burden of proof requiring that immigration officers have clear and convincing evidence that a green card holder committed a crime before denying them entry into the United States. The majority decision, written by Justice Clarence Thomas, explained that a lawful permanent resident could be denied admission back into the United States if the government concluded they were inadmissible under the terms of the INA
Dissent: Determination Must be Made at the Border
Justice Ketanji Brown Jackson was joined by the other two liberal justices in a dissent that said the majority’s view could not have been what Congress intended in drafting the INA. She explained that the INA’s core mandate is that lawful permanent residents are not to be treated as seeking admission to the country when returning to the United States. She added that the statute requires that the admission determination be made at ports of entry when the green card holder seeks readmission to the country, not at a later date.
Jackson also noted that the majority’s decision had what she referred to as “a sequencing problem.” The immigration officer must determine whether the green card holder has committed a crime of moral turpitude before there is a removal hearing, she argued, and whether the green card holder later commits a crime or is convicted of a crime can’t logically have an impact on the officer’s earlier decision.
