SCOTUS gave the government a “blank check” to weaken due process for green card holders

This Supreme Court term has no shortage of high-profile immigration-related cases. But as the justices wait until the last minute to rule on the more controversial ones—namely birthright citizenship—on Tuesday, they delivered a decision in a sleeper case that could have implications for millions of green card holders living in the United States.

In a 6-3 decision signed by Justice Clarence Thomas, the conservative supermajority held that border officers don’t need to have “clear and convincing evidence” that a lawful permanent resident committed a crime involving moral turpitude—a vaguely defined immigration law term that can cover a wide spectrum of crimes generally involving intent to defraud or cause bodily harm—before jeopardizing their rights and ability to stay in the country. In other words, agents at the border have just been given exceptional discretion to bypass protections generally afforded to green card holders.

In the case at issue, Blanche v. Lau, Muk Choi Lau, a Chinese-born green card holder was charged in New Jersey in 2012 with trademark counterfeiting. Lau then traveled abroad and tried to re-enter the United States at the airport with his green card. Under federal statute, returning lawful permanent residents are supposed to be treated as having already been admitted into the country—meaning they are essentially just coming back home.  

But a border agent determined that, because of Lau’s pending criminal charges for a crime involving moral turpitude, he fit into an exception and could be classified as someone “seeking admission” (rather than already admitted) into the United States. Lau was paroled in, but had his green card confiscated. After he pleaded guilty to the charges, the federal government started removal proceedings against him.

An immigration judge found that Lau could be removed, but following an appeal, the Second Circuit Court of Appeals disagreed. The appeals court concluded that the border office didn’t have enough evidence at that time to show that Lau had committed a crime and that he should have been treated under the default presumption that he had already been admitted into the United States due to his lawful permanent status.

“Critically,” Judge Richard J. Sullivan and the appeals panel ruled last year, “the INA [Immigration and Nationality Act] does not provide that an LPR (Lawful Permanent Resident] may be treated as seeking admission when he has been ‘charged with a crime’ or is ‘believed to have committed a crime; it permits such a treatment only when an LPR ‘has committed’ a crime.”

In Tuesday’s decision, the Supreme Court majority led by Justice Thomas vacated the Second Circuit’s judgment, arguing that the government had correctly reclassified Lau and that the federal statute didn’t actually require the border officer to “have clear and convincing evidence that Lau had committed a crime involving moral turpitude before deeming him an applicant for admission.”

The ruling in Blanche v. Lau is likely to create a chilling effect on lawful permanent residents traveling overseas. Notably, it follows proposed rules by the Trump administration to force immigrants to pursue green card applications from abroad, and make it considerably more expensive for green card holders to apply for US citizenship.

In her dissent, Justice Ketanji Brown Jackson said the Court’s decision undermined the “benefits and security that come with having a green card.” In the worst-case scenario, Justice Jackson reasoned, the government could “merely assume” at the border that a green card holder should be demoted to “seeking admission” and only justify that determination with “post hoc evidence.”

“I worry that the Court has now handed the Government a massive blank check,” Justice Jackson wrote. Green card holders, she added, “are as close to citizenship as one can get absent naturalization…Today, the majority ignores that crucial fact and empowers Government officials to act accordingly.”

Aaron Reichlin-Melnick with the American immigration Council noted on social media that the Supreme Court’s ruling does not mean that green card holders can simply be ordered deported by border agents. But classifying lawful permanent residents returning from abroad as “seeking admission” could open up a wide range of negative legal and practical consequences for them, including the possibility of detention and, eventually, deportation proceedings requiring a higher burden of proof for defense.

“It is very disturbing in the breadth of its reach, and I think we can expect border officers to overuse the power that they’re given here,” said Nancy Morawetz, a law professor and director of the Crimmigration Clinic at NYU. She worries about the implications for green card holders who could be subject to other grounds of inadmissibility, such as offenses involving controlled substances. “There are a lot of people who could be at real risk if the government doesn’t really have to have any proof…It’s very, very dangerous.”

Allen Orr, former president of the American Immigration Lawyers Association, said the ruling lowers the due process standards green card holders are entitled to. “We’re giving a border officer the ability to determine if it’s a crime of moral turpitude and you might not even be guilty of it,” he said. “If the facts are clear and the person is excludable and does not deserve to be in the United States, then take their green card but afford them a process greater than some border officer at the port of entry.”

He warned on Bluesky: “The danger of this ruling is that it creates an incentive to use the border as a place where rights are diminished.” Orr said it further sends a troubling message to lawful permanent residents. “I already have clients who have green cards who are just afraid to travel,” he said, “because the government has said, as a green card holder, you’re just now a long-term visitor, we could deny you for anything.” The decision, he concluded, “aligns with the goal of excluding and removing people from the United States that are not US-born nationals.”