Border officers can suspend a foreign national’s status as a permanent lawful U.S. resident, pending resolution of a criminal charge, the Supreme Court ruled Tuesday.
In a 6-3 decision in the case of Blanche v. Lau, the Supreme Court sided with Acting Attorney General Todd Blanche, reversing and remanding a Second Circuit appeals court ruling in favor of Muk Choi Lau, a Chinese national seeking to remain in the U.S. after pleading guilty to a felony.
Lau became a lawful permanent U.S. resident in 2007. But, after he was charged with third-degree trademark counterfeiting in New Jersey in 2012, he left the country.
A lawful permanent resident who arrives in the U.S. after a temporary absence can usually reenter the U.S. at will because he has previously been deemed admitted – unless he has committed serious crimes involving “moral turpitude.”
In Lau’s case, when he tried to reenter the U.S., a border officer noticed on a FBI database that Lau had been indicted for a felony. As a result, the border officer granted Lau temporary admittance (“parole”) – not admittance as a lawful permanent resident – pending the outcome of his criminal trial.
Ultimately, Lau pleaded guilty to counterfeiting, prompting the U.S. Department of Homeland Security (DHS) to secure a removal order for his deportation. Lau lost an appeal to the Board of Immigration, then sued. The Second Circuit ruled in his favor on the grounds that the border officer did not have “clear and convincing” evidence Lau had committed a serious crime.
On Tuesday, the Supreme Court disagreed:
“Held: The Immigration and Nationality Act (INA) does not require a border officer to have clear and convincing evidence that a lawful permanent resident has committed a crime involving moral turpitude before deeming the resident an applicant for admission.”
“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,” Justice Clarence Thomas wrote in the majority opinion.
If a legal permanent resident returning from abroad has committed a qualifying offence, such as a serious crime, that person “can be divested of his already-admitted status and treated as if he is ‘seeking an admission’” by a border officer, Thomas explained.
The ruling enables border officers who know that a permanent legal resident seeking reentry has been charged with a felony criminal offense to modify that foreign national’s status and issue a notice to appear for immigration status resolution once the court case is settled.
The Supreme Court did not decide whether Lau’s crime was one meeting the “moral turpitude” requirement to revoke his permanent status. Instead, it sent the case back to the Second Circuit for further proceedings.
Indictment, instead of “clear and convincing evidence,” is considered sufficient, since prosecutors are only allowed to seek and file charges if they believe they have enough proof to convince a jury of guilt beyond a reasonable doubt.
“Congress never intended to saddle customs officers at airports with finding ‘clear and convincing evidence’ that an alien charged with a crime actually committed it,” Christopher J. Hajec, deputy general counsel of the Federation for American Immigration Reform (FAIR), said in a statement applauding the Supreme Court’s decision:
“Because border officers would not know the evidence against the alien, imposing that requirement was just a way of dismantling the protections in the law against a whole class of alien criminals. We are pleased the Court refused to go along with this gutting of the law, and reversed.”
FAIR had previously filed a brief with the Supreme Court arguing for what would prove to be the High Court’s ruling in Tuesday’s opinion.
