The Supreme Court recently held oral arguments in the case of Blanche v. Lau, a matter examining the scope of immigration officers’ discretion in classifying lawful permanent residents who have been accused, but not convicted, of crimes that may lead to deportation. The case focuses on Muk Choi Lau, a Chinese national who became a U.S. green card holder in 2007 and was later charged with trademark counterfeiting. Upon re-entering the U.S. after a brief international trip, Lau was paroled rather than admitted due to the pending charges, which allowed the Department of Homeland Security (DHS) to pursue his removal under more favorable terms for the government. This decision led to Lau’s argument that he had been improperly classified, an argument initially rejected by immigration courts but later upheld by the U.S. Court of Appeals for the 2nd Circuit (read more).
The crux of the debate during the oral arguments centered around the evidentiary standard required at the border for denying entry to legal permanent residents. The government, represented by Sopan Joshi, asserted that the “clear and convincing evidence” standard applied by the 2nd Circuit does not stem from the Immigration and Nationality Act (INA) but from removal proceedings, where the Board of Immigration Appeals has set a higher bar. In contrast, Lau’s representative, Shay Dvoretzky, argued that this standard should indeed apply when denying entry, bolstering the need for officers to have firm evidence before making such a critical decision (full analysis).
The justices actively questioned the necessity and timing of requiring clear evidence, with Justice Amy Coney Barrett and Chief Justice John Roberts highlighting potential complications, such as the circumstances under which urgent information, like a notification of a violent crime abroad, would influence immigration decisions. The broader implications of this case echo the actions under the Trump administration’s immigration directives, with concerns raised by Justices Ketanji Brown Jackson and Sonia Sotomayor about potential abuses of discretionary power by immigration officers. These concerns about discretionary abuses seem particularly poignant given recent historical attempts to tighten immigration policies (see INA). A decision on this crucial issue is anticipated by early July.