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The United States Supreme Court issued a historic ruling on Tuesday for millions of green card holders: in the case Blanche v. Muk Choi Lau, the court decided by a vote of six to three that border agents are not required to have clear and convincing evidence that a permanent resident has committed a crime before treating them as an applicant for admission upon returning to the country.
The majority opinion, written by Judge Clarence Thomas with the support of Justices Roberts, Alito, Gorsuch, Kavanaugh, and Barrett, establishes that the Immigration and Nationality Act does not impose that evidentiary standard on border officials, who must make "quick decisions on the spot" without the law requiring them to meet a burden equivalent to that of a court.
The case arose from the situation of Muk Choi Lau, a Chinese citizen with permanent residency since 2007, who temporarily traveled to China while facing criminal charges in New Jersey for trademark counterfeiting.
When attempting to re-enter through JFK Airport in June 2012, a migration agent did not recognize him as an already admitted resident, but instead allowed him to enter under parole while his criminal case was resolved. After pleading guilty in 2013, the government initiated removal proceedings due to inadmissibility.
The legal distinction is fundamental to understanding the impact of the ruling. When a permanent resident is classified as "already admitted," the government must prove their deportability.
But if treated as an "admission seeker," it is the immigrant themselves who bears the burden of proof regarding their admissibility, in a process that is generally more unfavorable.
Most established a two-step mechanism: in the first, it is sufficient for the resident to have "committed" a crime outlined in the law for it to be reclassified; in the second, a conviction or admission of the crime is required to declare it inadmissible.
The most controversial point is that a conviction obtained months or years after re-entry may retroactively validate the decision made at the border.
The dissent from Judge Ketanji Brown Jackson, joined by Sotomayor and Kagan, was strong. «I am concerned that the Court has given the government a massive blank check», Jackson wrote, warning that the decision allows the government to reclassify a permanent resident upon arrival at the border and justify that decision with evidence gathered later.
Lau's case illustrates the concrete consequences of that reclassification. Upon being placed on parole, the authorities confiscated his physical green card and only provided him with a temporary I-94 form.
According to the dissenting opinion, that document was "the only proof of their status for the last 14 years," while Lau remained in a migratory limbo. Having only that temporary paper makes it difficult to work, open bank accounts, obtain health insurance, or enroll in educational institutions.
The ruling has direct implications for the Cuban community in the United States.
ICE arrested Yaima Suárez in Miami, a Cuban mother of five and permanent resident, upon her return from Cuba due to a criminal record from 2013.
The immigration attorney Willy Allen has warned that any resident with a criminal record who travels abroad may be detained upon returning, regardless of the destination: «If you have a criminal offense and you are a resident, do not travel without consulting a lawyer».
ICE estimates that between 42,000 and 46,000 Cubans in the United States have final deportation orders for criminal offenses and are under supervision with form I-220B, a figure that gains new significance in light of this precedent.
The Court did not determine whether Lau's specific crime actually constitutes a "crime of moral turpitude" and returned the case to the Second Circuit for that pending analysis.
Jackson summarized the gravity of the precedent: "By law, permanent residents are as close to citizenship as one can get without naturalizing. Today, the majority ignores that crucial fact."
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