The Supreme Court on Tuesday issued a decision in a case examining the rights of permanent residents who have been accused of committing crimes that could put them at risk of being deported from the United States.
Muk Choi Lau is a Chinese national who became a permanent U.S. resident in 2007. He was arrested in New Jersey in 2012 over allegations he sold $300,000 worth of knock-off shorts.
While awaiting trial, he left the U.S. to travel to China. Upon his return, still in 2012, he was deemed an “applicant for admission” rather than a permanent resident by the Department of Homeland Security.
Lau argued he should have been treated as a permanent resident upon his return and should not have been forced to reapply for admission, but the court said he could be asked to reapply after being charged with a crime.
Case background
Green card holders typically are able to return to the U.S. after traveling for short periods without their immigration status being impacted. Under the Immigration and Nationality Act, they typically do not have to seek readmission to the country.
However, there are some exceptions if the individual has committed a dishonest or immoral crime.
A border officer at the airport determined that Lau’s pending trial meant he was subject to that exception. He was allowed into the U.S. temporarily, then later pleaded guilty to the counterfeiting charge. Lau was sentenced two years of probation and at the end of that time, DHS tried to remove him from the country.
But Lau argued that counterfeiting isn’t an immoral crime, and not cause for his deportation. He argued at the time of his re-entry to the U.S. that he was wrongly classified as someone seeking admission, not someone who already had been a lawful permanent resident.
Migrants who are convicted of an immoral crime can be deported if the crime was committed within 5 years of their arrival, but in Lau’s case, 5 years and 10 months had passed.
The Supreme Court’s more liberal justices, like Sonia Sotomayor, appeared more skeptical of the federal government’s position that they were correct to try and deport Lau. Sotomayor argued that a government not in favor of immigrants could “willy-nilly” parole green card holders for “any reason” and remove people they don’t want in the country.
The court’s conservative justices also questioned some of the government’s arguments, but Justices Amy Coney Barrett and Brett Kavanaugh pressed Lau’s attorney about whether it was necessary to have a conviction. Shay Dvoretzky, Lau’s lawyer, argued he had not been convicted yet of the crime when the immigration officer refused to readmit him.
The case, originally Bondi v. Lau, is now Blanche v. Lau after former Attorney General Pam Bondi was left her position earlier this year.
The 6-3 ruling
The majority opinion on Tuesday was written by Justice Clarence Thomas, and he was joined by five other justices.
Justice Ketanji Brown Jackson filed a dissenting opinion and was joined by Sotomayor and Justice Elena Kagan.
Thomas, in his decision, threw out the lower court’s ruling that said the government should have had “clear and convincing” evidence that Lau had committed the crime. The Immigration and Nationality Act (INA) does not impose that requirement, Thomas said.
Thomas said under the INA, the government can charge an immigrant as an applicant for admission to the U.S. as inadmissible if that person had been convicted of a crime of “moral turpitude.” He deemed the counterfeiting charges to be an immoral crime and said the government was correct in classifying Lau as inadmissible.
“We conclude that the Government properly charged Lau with inadmissibility. Border officers did not have the burden to establish by clear and convincing evidence that Lau had committed a crime involving moral turpitude,” Thomas wrote.
Thomas concluded that because Lau maintains that his counterfeiting charge doesn’t involve moral turpitude, that decision will be sent back to the Second Circuit to decide.
Jackson, in her dissent, said it’s not clear from the majority’s opinion but the matter before the court was that of “sequencing,” and in this case it’s about Lau re-entering the country after he committed a crime but before he was convicted of it. “It really is that simple,” she wrote.
In her conclusion, Jackson said she was concerned that her colleagues on the court have no handed the government a “massive blank check.”
“With today’s decision, the Court allows the Government to return any (legal permanent resident) to the status of ‘seeking an admission’ upon his entry at the border, so long as the Government is able to show later that he was eventually convicted,” she said.