Supreme Court Removes Evidence Standard for Green Card Reentry Denials

The Supreme Court voted 6-3 on Tuesday to remove a legal standard that immigration officers previously had to meet when deciding whether to grant reentry to green card holders facing criminal charges.

In *Bondi v. Lau*, Justice Clarence Thomas wrote for the majority that federal immigration law does not require border officers to have "clear and convincing evidence" that a permanent resident committed a disqualifying crime before classifying that person as seeking admission and preventing reentry into the United States.

## The Case

The dispute centered on Muk Choi Lau, a Chinese citizen and lawful permanent resident. In June 2012, immigration officers encountered Lau at the border one month after he faced charges under New Jersey law. The government alleged he had sold counterfeit goods. Officers classified Lau as seeking admission rather than readmitting him, allowing him entry to face prosecution while deferring a decision on whether he could stay.

Lau pleaded guilty to trademark counterfeiting and received two years of probation. The Department of Homeland Security then moved to remove him, arguing his conviction disqualified him from admission under the Immigration and Nationality Act.

Lau challenged the classification, contending that officers should have admitted him at the border. An immigration judge and the Board of Immigration Appeals rejected his argument. The U.S. Court of Appeals for the 2nd Circuit, however, sided with Lau, holding that officers must have clear and convincing evidence of a disqualifying crime before treating a permanent resident as seeking admission.

## Majority Position

Thomas wrote that the INA contains no requirement for the clear and convincing evidence standard at the border. Border officers, he explained, need to make "quick judgments on the spot" without this burden. He stated that the standard emerged from Board of Immigration Appeals precedent addressing removal hearings, not border encounters.

Thomas rejected Lau's argument that someone must be convicted before the government can treat him as having committed a crime of moral turpitude. A plain reading of the statute, Thomas wrote, allows the government to regard a permanent resident as seeking admission once the person has committed such a crime, even if conviction comes later.

## Dissent

Justice Ketanji Brown Jackson dissented in a 17-page opinion joined by Justices Sonia Sotomayor and Elena Kagan.

Jackson argued that the statute's text gives the government no discretion to deny a permanent resident admission when it lacks evidence to support that decision. She wrote that the removal hearing, which may occur months or years after classification as seeking admission, comes too late for the government to carry its burden.

Jackson emphasized the consequences for permanent residents. A demotion to seeking admission status allows detention or parole and can result in loss of the green card and work authorization. She noted that Lau faced classification and parole "solely on the basis of" an indictment.

"Congress could not have meant for the guarantees" afforded to lawful permanent residents "to be so cavalierly swept aside," Jackson wrote.