In a significant affirmation of federal authority over immigration enforcement, the Supreme Court has ruled that border officials may take pending criminal charges into account when deciding whether lawful permanent residents can be readmitted to the United States.
In a 63 decision, the Court held that immigration officers acted within their statutory authority when they treated a green card holder with unresolved criminal charges as an applicant for admission rather than as a returning resident. According to The Post Millennial, the ruling in Blanche v. Lau underscores the Courts willingness to defer to front-line immigration officers making rapid determinations at the border, even over the objections of the Courts liberal wing.
The case involved Chinese national Muk Choi Lau, who became a lawful permanent resident in 2007 and was charged in New Jersey with trademark counterfeiting in May 2012. While awaiting trial, Lau traveled to China and, upon his attempted return in June 2012, was paroled into the United States pending resolution of his criminal case rather than being formally admitted, a legal distinction that proved decisive.
"Lawful permanent residents generally must be regarded as already admitted to the country and usually do not have to reapply for admission when they return from temporary overseas travel," the Supreme Court explained. "Under an exception, the Government may regard a lawful permanent resident as 'seeking an admission' (and thus as not already admitted) if he 'has committed an offense identified in section 1182(a)(2),'" including a "crime involving moral turpitude."
Lau pleaded guilty in June 2013, after which the federal government initiated removal proceedings on inadmissibility grounds. "At those proceedings, the Government charged Lau as an applicant for admission who was inadmissible for having been convicted of a crime involving moral turpitude. Lau argued that he was a lawful permanent resident already admitted and subject to removal only on deportability grounds."
An immigration judge sided with the government and found Lau removable, but a federal appeals court later vacated that decision. The appellate panel insisted that border officials needed "clear and convincing evidence" at the time of entry that Lau had committed the crime, ruling that it was "not enough that the lawful permanent resident committed a crime involving moral turpitude," as Justice Clarence Thomas summarized for the Court.
Writing for the majority, Thomas rejected that heightened evidentiary requirement as an improper judicial rewrite of immigration law. "The Government correctly regarded Lau as an applicant for admission, so it properly charged him with inadmissibility. Nothing in the INA required the border officer to have clear and convincing evidence that Lau had committed a crime involving moral turpitude before deeming him an applicant for admission," Thomas wrote.
The majority emphasized the practical realities of border enforcement, where officers must make rapid determinations based on limited information. "We decline to read into the INA an additional clear-and-convincing-evidence burden on border officers entrusted with making quick judgments on the spot when that burden is nowhere in the statute," Thomas added, reinforcing a textualist approach that resists judicially created hurdles to immigration control.
Justice Ketanji Brown Jackson, writing in dissent for the Courts three liberal justices, warned that the ruling hands the federal government sweeping discretion over lawful permanent residents. She argued that the decision effectively grants a "blank check" to downgrade green card holders to the status of "seeking an admission" at the border, "so long as the Government is able to show later that he was eventually convicted."
Jackson contended that such sequencing "undermines the plain terms and basic operation of the relevant statutory scheme, which guarantees that LPRs will not be 'regarded as seeking an admission' at the border unless certain exceptions apply." Her dissent reflects a more expansive view of procedural protections for noncitizens, a position frequently embraced by the left but often at odds with efforts to maintain firm border controls.
The Court stopped short of deciding whether Laus trademark counterfeiting conviction actually qualifies as a "crime involving moral turpitude," a key statutory category that can bar admission. That question was remanded to the lower courts, leaving open whether Lau ultimately will be removed, even as the ruling strengthens the hand of immigration officers and reinforces Congresss chosen framework for screening potentially dangerous or dishonest actors at the border.
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