The U.S. Supreme Court will hear oral argument on Wednesday in Blanche v. Lau, a case testing the rights of lawful permanent residents accused of committing a crime that could expose them to removal from the United States. The justices agreed in January to decide whether immigration officers needed "clear and convincing evidence" that a green card holder had committed a disqualifying offense at the moment they paroled him at the border, or whether the government can instead produce that evidence later, during removal proceedings. A decision is expected by early July.

The case centers on Muk Choi Lau, a Chinese national who became a lawful permanent resident of the United States in September 2007. In May 2012, New Jersey authorities arrested Lau and charged him with selling nearly $300,000 worth of counterfeit Coogi shorts. Lau left the U.S. while awaiting trial, then returned in June 2012 and encountered immigration officers at John F. Kennedy International Airport in New York.

Green card holders like Lau generally may leave the U.S. for short periods and return without jeopardizing their status. The Immigration and Nationality Act states that, under most circumstances, they should "not be regarded as seeking an admission into the United States" and should instead be treated as having a right to reenter. Among the exceptions is a noncitizen who has committed "a crime involving moral turpitude" — a dishonest or immoral act such as fraud or theft.

Discovering Lau's pending counterfeiting charge, immigration officers at JFK invoked the moral turpitude exception. Rather than admitting him, they paroled him — allowing him to enter the country temporarily "to face prosecution for his counterfeiting offense" while deferring consideration of his eligibility for admission.

In June 2013, Lau pleaded guilty to trademark counterfeiting and received a two-year probation sentence. In March 2014, the Department of Homeland Security began removal proceedings on the ground that Lau was ineligible for admission, rather than on the ground that he had violated the terms of his green card. That classification mattered enormously. It treated Lau as if he were not a lawful permanent resident, requiring him to prove he was eligible for admission instead of requiring the government to prove he could be deported.

Lau contested his removal on multiple fronts, including a waiver application and an argument that counterfeiting is a "petty offense" rather than a crime of moral turpitude. Most consequential for the Supreme Court case is his challenge to the June 2012 decision to deny him admission. Lau contended the removal proceeding could not proceed because he had been "improperly classified" when paroled, and that officers should have treated him as a lawful permanent resident in good standing.

An immigration judge sided with the government, holding that "because Lau had already committed the crime of trademark counterfeiting when he sought reentry into the United States, he was properly classified as 'inadmissible' upon his arrival and was appropriately paroled." The Board of Immigration Appeals affirmed.

The U.S. Court of Appeals for the Second Circuit reversed. Relying on the statutory text — which provides that a lawful permanent resident "shall not be regarded as seeking an admission into the United States" unless the alien "has committed" a disqualifying offense — and on an evidentiary standard from a 2011 BIA decision, the unanimous three-judge panel held that officers could not invoke the exception without "clear and convincing evidence" that Lau had committed such a crime.

"Critically, the INA does not provide that [a lawful permanent resident] may be treated as seeking admission when," as in Lau's case, "he has been 'charged with a crime' or is 'believed to have committed a crime,'" Judge Richard J. Sullivan wrote for the panel. "[W]e do not see how charging documents alone – without more – could carry DHS's burden of demonstrating that a crime had been committed at the time of [a lawful permanent resident's] reentry."

The Second Circuit vacated the final removal order and instructed the BIA to terminate proceedings, while noting that DHS could begin a new deportation proceeding under a different INA provision — that Lau had been "convicted of a crime involving moral turpitude within five years" of admission. Sullivan acknowledged, however, that other federal appeals courts have held "that the INA is unclear as to when DHS must" prove the offense. Those courts would accept an eventual conviction as after-the-fact confirmation that the crime occurred before reentry.

Solicitor General D. John Sauer cited this circuit split in urging the Supreme Court to take the case. In the government's merits brief, Sauer first argued that federal appeals courts' authority to review removal orders does not extend to decisions immigration officers make at the border or ports of entry. "The INA makes clear that 'no court shall have jurisdiction to review' a discretionary parole decision," he wrote. Even if review were available, Sauer contended, the Second Circuit could not limit its examination to "only the evidence that immigration officers at JFK had at the time," because the INA directs immigration judges to focus on "'the evidence produced at the hearing'" before them.

Sauer also argued that the Second Circuit's timing rule "is contrary to historical practice and good sense." Immigration officers "must handle a large inflow of aliens each day, making quick decisions about each one," he wrote. "Requiring them to conduct mini-trials with clear and convincing evidence is inconsistent with that role." Even with more time, officers would likely "lack access to relevant evidence," and "[t]he net result would be to effectively nullify the ability to parole [lawful permanent residents,] including to face prosecution."

Lau's merits brief countered that the government is "ignor[ing] clear textual limitations" in order to pursue an easier route to removing lawful permanent residents. "[I]t would rather be able to pursue inadmissibility proceedings against" these residents "than have to pursue the deportations proceedings that the INA makes clear it must follow," the brief states. Lau also rejected the jurisdictional argument, noting that "[t]he INA permits judicial review of 'questions of law,'" including "'[w]hether a noncitizen is statutorily eligible'" for a discretionary decision like parole. On capability, the brief was blunt: "If federal officials could assess criminal history at the border in the era of wooden ships and oil lamps, it's hard to believe that DHS officials can't do so today."

For practitioners, the ruling will determine where the burden sits in inadmissibility cases against green card holders returning from brief trips abroad. If the Second Circuit's approach prevails, border officers must gather clear and convincing evidence of a committed offense before treating a returning resident as an applicant for admission; if the government prevails, a later conviction can retroactively justify the inadmissibility classification, and judicial review of parole decisions may be cut off entirely. The outcome will also resolve a circuit split and shape charging strategy — inadmissibility versus deportation — for DHS nationwide.