Guilty on Command

Supreme Court waters down evidence required to exclude permanent residents from United States

It used to be that a lawful permanent resident held a privileged position among migrants in the United States. With a green card in hand, they could live and work here indefinitely if they complied with immigration law. And if the government thought they had violated immigration law, it was up to immigration officers to prove it. All that has now changed. In a decision issued yesterday, Blanche v. Lau, the Supreme Court let immigration officers bar permanent residents from admission into the United States on nothing more than a hunch.

Photo by Itay Peer on Unsplash

Chinese citizen Muk Choi Lau became a permanent resident in 2007. In May 2012, prosecutors in New Jersey charged with him trademark counterfeiting. It turns out he was selling knock-off Coogi shorts. When he returned to the United States the following month, after a short trip to China, an immigration officer at JFK airport noticed the criminal charges in a government database. Lau hadn’t been convicted – and wouldn’t be for another year – but the immigration problems started immediately.

Federal law gives permanent residents, like Lau, easy access to the United States after routine trips abroad. Instead of treating permanent residents as if they were any other migrant, they are treated as if they had never left the United States. In a 1950 decision involving a permanent resident who immigration officers claimed threated the nation’s security, the Supreme Court explained that the Fifth Amendment’s Due Process Clause requires courts to “assimilate petitioner’s status to that of an alien continuously residing and physically present in the United States.”

To meet that constitutional requirement, immigration officers at the border (and airports with arriving international flights) treat returning permanent residents better than other migrants. According to federal law, a returning permanent resident “shall not be regarded as seeking an admission into the United States” unless one of six exceptions apply. The immigration officer who was working at JFK when Lau arrived in 2012 claimed that one of those exceptions applied. Based on the database indicating Lau had been charged with a crime, the officer decided that Lau “has committed” a crime involving moral turpitude. Lau was then treated as if he was seeking admission into the United States. His green card was taken away, and he was let into the United States under an alternative – and much more fragile – legal basis: parole.

Almost a year later, in 2013, Lau pleaded guilty to the counterfeiting charges. A year after that, DHS started removal proceedings in immigration court, claiming that Lau’s conviction made him inadmissible from the United States. Lau challenged the government’s immigration case, arguing that he was wrongfully denied admission at JFK two years earlier. The immigration courts sided with the government, but a federal appeals court disagreed. To the U.S. Court of Appeals for the Second Circuit, a returning permanent resident like Lau can only be treated as seeking admission if the immigration officer has “clear and convincing evidence” that he had committed the crime prior to landing at JFK, relying on a common evidentiary standard used in immigration law.

Yesterday, the rightwing majority on the Supreme Court rejected the Second Circuit’s approach. To the court’s six rightwing justices, the Immigration and Nationality Act – the federal law governing immigration – doesn’t impose a clear and convincing evidence standard on immigration officers stationed at the border or an in-land ports-of-entry like JFK. The INA demands that an immigration officer determine if a returning permanent resident has committed a relevant crime but “it nowhere says that the Government has the burden to establish by clear and convincing evidence that the alien is an applicant for admission.”

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Having announced that immigration officers aren’t required to gather clear and convincing evidence about a returning permanent resident’s criminal activity, the majority doesn’t tell us how much evidence they are required to gather before stripping green-card holders of their preferential treatment.

The implications of the majority’s reasoning are staggering. Unlike permanent residents, who are authorized to work as they like, migrants who are allowed into the United States on parole must repeatedly request work authorization. And even though a returning permanent resident who is paroled into the United States technically remains a permanent resident while immigration proceedings are underway, that legal status is effectively useless if immigration officials take their physical proof: the green card itself. That’s exactly what happened to Lau fourteen years ago.

Worse, migrants who request admission can be detained indefinitely while their immigration cases are ongoing – a period that usually takes months but sometimes stretches for years. What this means is that permanent residents who leave the United States for a short trip, then return, can be thrown into an immigration prison based on evidence that they committed a crime – only the court didn’t bother to tell migrants or immigration officers how much evidence is required. Trusting immigration officials to not abuse their newfound power to drag permanent residents into an immigration crevice on an unknown quantum of evidence is “cold comfort,” as Nancy Morawetz writes.

Under the Trump administration, DHS has shown extraordinary willingness to imprison as many migrants as possible. Meanwhile, Congress has provided it with generous funding to expand and maintain its detention regime. After yesterday’s decision, we may be on the verge of a massive uptick in the number of permanent residents who find themselves on the inside of an immigration prison.