On Tuesday, the Supreme Court blessed this Kafkaesque nightmare by a 6–3 vote along the usual partisan lines. Justice Clarence Thomas’ majority opinion in Blanche v. Lau declared that officers do not need “clear and convincing evidence” that a green-card holder committed “a crime of moral turpitude” before treating them as an “applicant for admission” who may be denied entry, detained, or (at best) conditionally allowed back in on parole. Indeed, Thomas expressly declined to say what, if any, burden the government bears at the border—an ambiguity that the Trump administration will surely exploit to throw green-card holders into deportation limbo. As Justice Ketanji Brown Jackson explained in dissent, “the court has now handed the government a massive blank check” to hollow out “the benefits and security that come with having a green card.”
The origins of Tuesday’s case illustrate its stakes. In 2012, a green-card holder named Muk Choi Lau returned to the United States after a trip to China. At that time, he faced criminal charges for selling designer-style shorts with a counterfeit trademark. As a lawful permanent resident, or LPR, Lau would typically be let into the country without hassle, deemed “already admitted” rather than “seeking admission.” But a border officer noticed the pending criminal charges and refused to formally admit him. Instead—playing prosecutor, judge, and jury—the officer deemed Lau to have committed “a crime involving moral turpitude.” And federal law permits the government to treat a lawful permanent resident who has committed such a crime as an “alien seeking admission” rather than someone already admitted to the country. The officer invoked this exception against Lau, snatching his green card and “paroling” him into the country. That move made Lau far more vulnerable to detention and deportation than if he had been admitted as an LPR.
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Now consider Thomas’ distortion of the congressional scheme. In his telling, the government may simply accuse an LPR of committing a crime, strip them of the protections that ordinarily come with permanent residency, and then spend years gathering the evidence needed to retroactively justify that decision. It need only prove its accusation to an immigration judge much later, and that proof somehow backfills the evidence the officer lacked at the border. Thomas would not even say that border officers bear any burden of proof before consigning LPRs to this legal purgatory, and he left open the possibility that they have no such burden at all. That would mean that an officer could simply invent an accusation of criminality, leaving the green-card holder trapped in a bureaucratic twilight zone for years before they have a chance to rebut the accusation at a hearing.
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And that twilight zone has serious costs—a fact that Thomas ignores but Jackson rightly highlights. Without a permanent green card, it is harder for legal permanent residents “to work, open bank accounts, secure housing, obtain health insurance, and enroll in school,” Jackson noted. It is also easier for the government to deport them. A typical green-card holder may not be removed unless the government proves they’re deportable. An LPR in Lau’s situation, by contrast, bears the burden of proving in immigration court that they are entitled to remain. Moreover, a single conviction for a crime of moral turpitude can be enough to expel an LPR in Lau’s position, even when that same conviction would not be enough to deport a green-card holder who had been formally admitted. They may even be detained for months or years while their case grinds through immigration court.
From the article:
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