The Supreme Court will review on Wednesday the Trump administration’s bid to remove a criminal noncitizen who was paroled into the country, one of two immigration cases the justices will hear over the next week.
The case, Blanche v. Lau, centers on a Chinese national, Muk Choi Lau, who became a legal permanent resident in 2005 but was eventually charged with trademark counterfeiting in 2012 and left the country. When Lau returned later in 2012, he was paroled into the country by immigration officers to face trial, then convicted in 2013. Immigration officials began removal proceedings against him in 2014, citing the conviction, but years later, a federal appeals court tossed out an immigration court’s removal order, finding he could not be removed despite the criminal conviction because he was legally admitted into the country when he was paroled.
The high court will decide whether the federal government must prove it had clear and convincing evidence that Lau committed the crime that made him removable when it paroled him into the country, or if the government may present that evidence during subsequent removal proceedings in immigration court.
A person who is paroled into the country has not been legally admitted, despite being released by immigration officers, and may still be inspected by an immigration officer for either admission or removal from the country. Immigration officers will sometimes parole people who are attempting to enter the country at a port of entry or the border.
Solicitor General D. John Sauer wrote in his brief to the high court that the appeals court’s ruling “defies common sense and reality” by finding that immigration officers at a port of entry must present evidence of a crime by a legal permanent resident that makes them inadmissible into the country at the time, rather than later during removal proceedings.
“The court of appeals upended that established practice by imposing a novel burden of proof on immigration officers at the border and ports of entry when they consider whether to grant parole for deferred inspection,” Sauer wrote.
“Under the decision below, it is not sufficient for the government to establish in removal proceedings before an immigration judge, by clear and convincing evidence, that an LPR ‘committed’ a disqualifying offense and was therefore ‘seeking an admission’ when he arrived in the United States,” Sauer said. “Instead, the government must show that immigration officers at the border possessed such evidence at the time they paroled the LPR.”
The Justice Department warned that upholding the lower court’s ruling would “create significant practical consequences for the Department of Homeland Security” over its ability to parole noncitizens, who it may later seek to remove, into the country from a port of entry.
“The court of appeals’ rule would require line immigration officers defending our Nation’s borders to take on the role of immigration judges—weighing burdens of proof before exercising their discretionary parole authority,” Sauer’s brief reads. “And it would upend decades of settled practice of paroling aliens for deferred inspection, including to face prosecution, for significant public benefit (including to the aliens).
“Those consequences underscore the implausibility of the court of appeals’ rule, for which it identified no textual support in the [Immigration and Nationality Act],” Sauer wrote.
Lawyers for Lau argued the DOJ is claiming it can “ignore clear textual limitations in the Immigration and Nationality Act regarding how it treats lawful permanent residents returning from brief trips abroad.” Lau’s lawyers argue the government cannot punt on determining if a noncitizen is “inadmissible” by paroling them into the country, and that if it paroles someone, the federal government must seek different removal proceedings since it has already legally admitted that person into the country.
“The INA’s text makes clear that DHS must admit returning LPRs unless it can determine when he presents at the border that a statutory exception applies. If that evidence develops only later, the government must attempt to remove the LPR, if at all, through deportation proceedings,” Lau’s lawyers said in their brief.
“The INA doesn’t give DHS the power to functionally strip a green-card holder of his right to enter the country without evidence justifying that drastic step,” Lau’s brief reads. “The Court should affirm the Second Circuit’s holding that because DHS lacked the power to parole Mr. Lau, he was admitted to the country and cannot be removed under § 1182’s inadmissibility framework.”
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The Supreme Court will hear arguments in Blanche v. Lau at 10 a.m., shortly after it is expected to release at least one opinion in a pending case heard earlier this term. After the justices hear arguments in the case, a decision is expected by the end of June.
The high court will hear arguments in another immigration case next Wednesday, when the justices will hear a consolidated case over whether the Trump administration may end temporary protected status for Haiti and Syria. The ruling in that case, which is also expected by the end of June, will have wider ramifications for the administration’s bids to end TPS for various other countries.