The United States Supreme Court issued a historic decision this Tuesday impacting millions of green card holders: in the case Blanche v. Muk Choi Lau, the court ruled six votes to three that border agents are not required to have clear and convincing evidence that a permanent resident 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, holds that the Immigration and Nationality Act does not impose that evidentiary standard on border officials, who must make "quick decisions in the moment" without the law requiring a burden equivalent to that of a court.
The case arose from the situation of Muk Choi Lau, a Chinese citizen who has held 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, an immigration officer did not recognize him as an already admitted resident, but instead allowed him to enter under parole while his criminal case was being resolved. After pleading guilty in 2013, the government initiated removal proceedings for inadmissibility.
The legal distinction is essential for understanding the impact of the ruling. When a permanent resident is classified as "already admitted," the government must prove their deportability.
But if they are treated as an "admission applicant," it is the immigrant themselves who bears the burden of proof for 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" an offense listed 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 reentry can retroactively validate the decision made at the border.
The dissent of Judge Ketanji Brown Jackson, joined by Sotomayor and Kagan, was forceful. “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 to justify that decision with evidence gathered afterwards.
Lau's case illustrates the concrete consequences of that reclassification. Upon being released 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 his status for the past 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 lawyer Willy Allen has warned that any resident with a criminal record who travels abroad may be detained upon return, regardless of the destination: «If you have a criminal offense and 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 due to criminal offenses and are under supervision with form I-220B, a figure that takes on new relevance in light of this precedent.
The Court did not determine whether Lau's specific offense 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 the closest to citizenship that can be achieved without naturalization. Today, the majority remains unaware of this crucial fact."
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