In September 2007, Muk Choi Lau, a 69-year-old Chinese citizen, became a Lawful Permanent Resident of the United States, also known as a green card holder. In the American immigration system, a green card is basically the next best thing to U.S. citizenship: LPRs are entitled to permanently live and work in the United States, and are generally free to travel to and from the country at will. One federal statute literally defines an LPR returning from a temporary visit abroad as a “special immigrant.”
By law, LPRs reentering the United States are not treated as “seeking admission” for immigration purposes, unless one of a few specific exceptions applies. Most relevant to Lau, one of these exceptions permits the government to treat LPRs as “seeking admission” if they have committed “a crime involving moral turpitude.” And in May 2012, New Jersey police arrested Lau, alleging that he possessed and intended to sell 2,860 pairs of knockoff Coogi shorts.
Lau briefly visited China soon thereafter, and returned to the U.S. in June. When Lau arrived at JFK Airport in New York City, border agents did a records check and saw that Lau had been indicted for trademark counterfeiting.
Crucially, border agents did not see a criminal conviction, because Lau had not been convicted of a crime. And when they asked Lau about the charge, he denied committing a crime, so agents didn’t have a confession, either. In short, border agents had no evidence that Lau had committed any crime at all, much less “a crime involving moral turpitude” that would authorize the government to demote him to the status of “seeking admission.”
Border agents confiscated Lau’s green card anyway and denied him admission, instead “paroling” him into the country—essentially, temporarily releasing him so that he could face prosecution. Lau pled guilty to trademark counterfeiting in June 2013, and the government began removal proceedings against him a year after that—not using the stricter legal standard for deporting lawful permanent residents, but the easier standard for removing people who were never admissible anyway.
On Tuesday, the Supreme Court decided that this was, legally speaking, totally fine. Justice Clarence Thomas wrote for the Republican majority in Blanche v. Lau that Lau’s case was “straightforward” because the government may treat an LPR as “seeking admission” if they have “committed a crime involving moral turpitude,” and Lau did commit such a crime “before attempting to reenter the country.”
The glaring problem Thomas elides here is the fact that, again, the border agent had no way of knowing that. Lau pled guilty to trademark counterfeiting a full year after border officials deemed him to be “seeking admission.” And even now, it is still in dispute whether trademark counterfeiting qualifies as an offense involving moral turpitude. (The Court decided not to answer this question in Lau, and returned it to the lower court for further proceedings.)
Thomas justified this result by writing that border officers are “entrusted with making quick judgments on the spot” and do not need to satisfy the same evidentiary standard that applies “at the removal proceeding.” But he never says what standard, if any, officers must apply at the border. When a jury evaluates whether someone has committed a crime, it is supposed to make an assessment based on evidence. A border officer could make an assessment based on vibes.
Justice Ketanji Brown Jackson’s dissent makes the unstated consequences of the Court’s holding explicit. Joined by the other two liberal justices, Jackson explained that “in the worst-case scenario,” the government could “merely assume at the border” that some exception applies, downgrade an LPR’s status “without any evidence,” and “backfill its justification” later at a hearing that could be years away.
Such a downgrade would come at a significant cost. Lau, for instance, has been without his green card for 14 years. And without that proof of lawful permanent status, as Jackson wrote, it becomes “harder to work, open bank accounts, secure housing, obtain health insurance, and enroll in school.” The government also has the authority to place LPRs classified as seeking admission in immigration detention, which means that people in Lau’s shoes who thought they were going home could end up in federal custody instead.
The Court’s decision in Blanche v. Lau puts millions of lawful permanent residents in an untenable position. If they attempt to exercise the right afforded to them by Congress to travel and return to the country, they could be subject to a de facto deprivation of their LPR status. If they avoid travel, they could become isolated from family and friends abroad, potentially missing weddings or funerals or religious pilgrimages. Green card holders are people who have made the United States home. The Supreme Court’s ruling tells even lawful permanent residents they were never really welcome here.
