Supreme Court backs border officials in green-card dispute

The Supreme Court ruled 6-3 Tuesday that border officials do not need “clear and convincing evidence” that a lawful permanent resident committed a disqualifying crime before treating that person as an applicant for admission rather than someone already admitted to the United States.

The decision was split along ideological lines.

'Border officers did not have the burden to establish by clear and convincing evidence that Lau had committed a crime involving moral turpitude.'

The case involved Muk Choi Lau, a Chinese national and green card holder who was charged in 2012 with selling counterfeit clothing. After briefly traveling to China while the charge was pending, Lau was paroled into the U.S. rather than admitted when he returned. He later pleaded guilty to trademark counterfeiting.

During oral arguments in April, the government argued that the Immigration and Nationality Act does not require immigration officers at the border to possess clear and convincing evidence that a lawful permanent resident committed a crime involving moral turpitude — an act driven by dishonesty or immorality. Instead, government attorney Sopan Joshi argued that any burden is satisfied later during the individual's removal hearings.

Writing for the majority, Justice Clarence Thomas agreed. The court held that the INA allows the government to regard a lawful permanent resident as seeking admission if he has committed a qualifying offense and that nothing in the statute imposes a requirement of clear and convincing evidence on border officers making "quick judgments on the spot."

“Border officers did not have the burden to establish by clear and convincing evidence that Lau had committed a crime involving moral turpitude,” Thomas wrote.

The ruling reverses the Second Circuit's decision, which had sided with Lau and held that immigration officials needed clear and convincing evidence that he had actually committed the crime before treating him as an applicant for entry rather than a person already admitted.

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Chip Somodevilla/Getty Images/Bloomberg/Getty Images

Justice Ketanji Brown Jackson, joined by Justices Sonia Sotomayor and Elena Kagan, dissented, arguing that the government must determine whether an exception applies under the INA before stripping a green card holder of admitted status. She warned that the majority's approach gives the government broad authority to parole lawful permanent residents and justify the decision later.

“But today the Court allows the Government to deem an LPR to be ‘seeking an admission’ first and justify the applicability of an exception later — undermining the statutory scheme as well as the benefits and security that come with having a green card,” Jackson asserted.

The court did not decide whether Lau's trademark counterfeiting conviction qualifies as a crime involving moral turpitude, sending the case back to the Second Circuit for further proceedings.

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