The Supreme Court weighed how much evidence immigration officers need to deny a legal permanent resident entry into the United States, if he or she has committed a crime, appearing skeptical over the high bar an immigrant’s lawyer pushed for at arguments on Wednesday.
The high court heard arguments in Blanche v. Lau Wednesday morning over whether the federal government must prove it had clear and convincing evidence that a legal permanent resident, who was charged with a crime and later convicted, committed the crime that made him removable when immigration officers paroled him into the country, or if the government may present that evidence during subsequent removal proceedings in immigration court.
The lawyer for the immigrant at the center of the case argued that immigration officers should have to show proof of a conviction, or have the lawful permanent resident admit to a criminal offense, in order to deny them entry into the U.S. Multiple justices appeared unconvinced by that argument, expressing concern over the high bar that standard would set and the adjudication it would require immigration officers to perform at the border.
The case centers on Muk Choi Lau, who became a lawful permanent resident in 2005, but was eventually charged with trademark counterfeiting in 2012 and briefly left the country. When Lau returned later that year, he was paroled into the country by immigration officers to face trial — meaning he was not legally admitted, despite being released by immigration officers, and could still be inspected by an immigration officer later. Lau was convicted of the crime in 2013, and immigration officials began removal proceedings against him in 2014, citing the conviction as the reason why he could not be legally admitted into the country.
Justice Amy Coney Barrett grilled Lau’s lawyer, Shay Dvoretzky, on why he insists that a person must be convicted of a crime to be denied entry, when the law only states that officers must have clear and convincing evidence of a crime. She also expressed concern that his standard, which would bar paroling someone into the country on a temporary basis and deferring a formal inspection of them for a later date, would lead to mini-trials at ports of entry.
“Could he then say, ‘Well, I see you have this pending conviction, so I’m just going to detain you here at the border’ and we’re just going to call in some witnesses to find out about this counterfeiting charge?” Barrett asked Dvoretzky.
Dvoretzky said that “as a practical matter, that would obviously take too long” and also stated that an officer would not have the power under the law to detain the immigrant to conduct that type of “mini trial.” Barrett followed up by asking, “Why not?”
“Because [the immigration officer] has to make the decision,” Barrett said. “So, if he has to do it at the border, I mean, we have to give him time to do it. And if what he has to do is gather clear and convincing evidence, that would take some time. It just isn’t clear to me that it would benefit LPRs to have a situation in which then you’re being detained.”
Justice Samuel Alito questioned whether a lawful permanent resident could simply deny committing a crime he has been charged with and, therefore, effectively end the immigration officer’s inspection of whether he is allowed to be admitted into the country.
“I think the scheme that Congress has adopted does not allow, as Judge Sullivan recognized, does not allow DHS to parole somebody in order to later determine whether they were subject to parole,” Dvoretzky responded.
Chief Justice John Roberts also expressed concern over Dvoretzky’s argument, bringing up a hypothetical situation of if a French police official called and said the French lawful permanent resident that U.S. officials were inspecting at the border killed someone, whether American immigration officials could detain that French national to assess the claim.
“I know your general rule,” Roberts said. “It just seems to me to be pretty bizarre to say that in that situation they couldn’t even be detained.”
SUPREME COURT TO WEIGH RIGHTS OF LEGAL IMMIGRANTS WHO COMMIT CRIMES
The Supreme Court is expected to issue a ruling in Blanche v. Lau 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.