The U.S. Supreme Court held oral arguments on Wednesday in a high-profile case involving the removal of green card holders who commit crimes specified in U.S. immigration law.
In Blanche v. Lau, the justices considered the case of Muk Choi Lau, a Chinese national who was a lawful permanent resident (LPR) in the United States. Lau was charged with trademark counterfeiting in 2012 and left America while awaiting trial. Upon his return to the United States, immigration officials “declined to admit him outright and instead paroled him into the country pursuant” to a provision of the Immigration and Nationality Act, according to Oyez.
Lau ultimately pled guilty to the counterfeiting charge in 2013 and went on to challenge the U.S. government’s decision to parole him. The justices will decide the question of whether the government “must prove that it possessed clear and convincing evidence of the offense at the time of the LPR’s last reentry into the United States” to “remove an LPR who committed an offense listed in Section 1182(a)(2) [of the INA] and was subsequently paroled into the United States.”
Arguing on behalf of the Trump administration, Assistant to the Solicitor General Sopan Joshi contended that Lau had already committed a crime “involving moral turpitude” and was thus “eligible for parole and correctly charged with inadmissibility” upon his reentry into the country. He further argued that the government “proved [all of this] by clear and convincing evidence in [Lau’s] removal proceedings,” and that the “failure” by the Chinese national’s legal team “to establish his at-the-border clear-and-convincing evidentiary requirement dooms his case.”
Several of the high court’s Democrat appointees did not hide their apparent skepticism of the administration’s position.
Associate Justice Sonia Sotomayor repeatedly interrogated Joshi over his arguments surrounding removal proceedings for LPRs like Lau. At one point, her refusal to permit Joshi to answer her questions prompted Chief Justice John Roberts to interject and allow him to respond.
Associate Justice Ketanji Brown Jackson espoused fears of “a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration.” Associate Justice Elena Kagan, on the other hand, pressed Joshi on possible effects his “clear-and-convincing evidence” argument would have on related removal proceedings.
Meanwhile, Lau’s attorney Shay Dvoretzky faced extensive pushback from the court’s Republican appointees — most notably, Associate Justices Amy Coney Barrett and Samuel Alito.
Barrett hammered Dvoretzky on his claim that “clear and convincing evidence means, in this context, is do you have evidence of a conviction.” She noted how the statutory provision at issue “doesn’t say ‘conviction.’ It says ‘committed,’” and that a separate provision “about [LPRs] engaged in criminal conduct overseas … doesn’t say ‘conviction’” either.
The Trump appointee further challenged Dvoretzky’s burden of proof and admissibility arguments later in the hearing.
In addition to echoing Barrett’s point that “the statute says ‘has committed’” and “doesn’t say ‘has been convicted,’” Alito posed a hypothetical scenario in which an LPR leaves America for France, “shot somebody” while he was in France, and then returned to the United States. The Bush 43 appointee went on to say that French officials informed U.S. immigration authorities of the incident while the individual was on the plane, and effectively asked Dvoretzky if he could be detained by immigration authorities despite not having been convicted yet.
“I don’t think so,” Dvoretzky said. “I think, in that situation … we don’t know that, but, again, all of this goes to the question of what is the level of proof required at the border. That question has not been briefed. These are complicated questions that are not directly answered by the statute.”
The stunning answer prompted pushback from Roberts, who subsequently pressed Lau’s attorney to clarify whether that was his definitive answer on the hypothetical.
“It just seems to me to be pretty bizarre to say that in that situation they couldn’t even be detained,” said Roberts, to which Dvoretzky conceded that “perhaps he could be detained in that situation.”
Associate Justices Clarence Thomas and Neil Gorsuch also appeared more favorable to the government’s position. Associate Justice Brett Kavanaugh was relatively mum throughout much of the hearing.
A decision in Blanche v. Lau is not expected until later in the court’s 2025-2026 term, which is expected to end in late June-early July.
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