Supreme Court Decides Blanche v. Lau
The issue presented to the Court in Blanche v. Lau was whether, to remove a lawful permanent resident (LPR) who committed a crime and was later paroled into the United States, the U.S. government must present clear and convincing evidence of the offense at the time of the LPR's last entry into the United States. Click here for further details about the case. The case is the kind of nuts-and-bolts matter involving interpretation of the immigration statute routinely decided by the Court.
In an opinion by Justice Thomas, joined by the Chief Justice and Justices Alito, Gorsuch, Kavanaugh, and Barrett, the Court held as follows:
"Respondent Muk Choi Lau, a Chinese citizen, became a lawful permanent resident in 2007. New Jersey charged him with a crime in 2012. He then temporarily left the United States. Ordinarily, a lawful permanent resident who arrives in the United States after a temporary absence does not have to apply for admission because he is regarded as already admitted. 8 U. S. C. §1101(a)(13)(C). If he has committed certain crimes, however, the Government may regard him as not yet admitted. §1101(a)(13)(C)(v). Because of Lau’s pending charge for a crime, a border officer declined to regard Lau as admitted upon his return and did not admit him at the border. Instead, the officer paroled him pending the resolution of his criminal case, meaning that he was allowed to physically enter the country without being formally admitted. After Lau pleaded guilty to the New Jersey charge, the Government initiated removal proceedings and secured a removal order based on his conviction. The Board of Immigration Appeals affirmed.
The United States Court of Appeals for the Second Circuit vacated the removal order. It concluded that Lau should have been regarded as already admitted upon arrival unless the border officer had `clear and convincing' evidence that Lau had committed the crime, which it held that the officer lacked. . . . Because the Immigration and Nationality Act (INA) does not impose that requirement, we vacate the Second Circuit’s judgment."
Joined by Justices Sotomayor and Kagan, Justice Jackson's dissent concludes as follows:
"I worry that the Court has now handed the Government a massive blank check. With today’s decision, the Court al lows the Government to return an LPR 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. That 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. §1101(a)(13)(C).
To be sure, if the paroled LPR ends up being acquitted, the Government’s eventual effort to remove him on this basis will fail (insofar as the charge of removability was based only on the qualifying offense). But that is likely cold comfort to the LPR, who by then might have spent years in legal limbo (with only the protection of a temporary green card) or worse, in detention.
Having enshrined a returning LPR’s already-admitted status, Congress could not have meant for the guarantees it was affording to be so cavalierly swept aside. By law, LPRs are as close to citizenship as one can get absent naturalization." (citations omitted).
Stay tuned to this blog for commentary.
