The Supreme Court ruled 6-3 on Tuesday that federal immigration authorities do not need “clear and convincing evidence” at the border before treating a returning green card holder as an applicant for admission if they have a pending criminal charge.
The decision clears the way for the government to initiate deportation proceedings against lawful permanent residents based on evidence established after they re-enter the country.
The ruling stems from the case of Muk Choi Lau, a Chinese citizen who obtained a green card in 2007. In May 2012, New Jersey authorities charged Lau with trademark counterfeiting. While his trial was pending, he traveled to China and attempted to return through John F. Kennedy International Airport in June 2012. Pointing to the active criminal charge, a border agent declined to automatically admit Lau.
Instead, the agent placed him on “parole,” allowing him to enter the country physically while his legal status remained unresolved. Lau later pleaded guilty to the counterfeiting charge in 2013, and the government launched removal proceedings the following year.
Generally, under the Immigration and Nationality Act, lawful permanent residents returning from temporary trips abroad do not have to apply for re-admission. However, federal law contains an exception for individuals who have “committed” certain offenses, including crimes involving moral turpitude.
Lau argued that immigration officials could not strip him of his automatic admission status at the airport without high-level proof at that specific moment. The U.S. Court of Appeals for the Second Circuit agreed with Lau, ruling that border officers must possess “clear and convincing evidence” of a crime at the port of entry.
The Supreme Court rejected that standard. Justice Clarence Thomas, writing for the majority, stated that nothing in the federal immigration statute forces border agents to meet such a high evidentiary bar during rapid airport screenings. He noted that border officers are regularly entrusted with making “quick judgments on the spot.”
Thomas explained that the government met its legal obligation later during the actual immigration hearing, where Lau’s eventual guilty plea served as clear proof that he had committed the crime before trying to re-enter. Joining Thomas in the majority were Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan. Jackson argued that the ruling turns the immigration framework upside down by allowing the government to downgrade a permanent resident’s status first and find the justification later.
Jackson wrote that the decision forces green card holders into a prolonged state of legal limbo, pointing out that Lau has spent 14 years with only a temporary paper card as proof of his status. She stated that the majority’s view hands the government a “massive blank check” and devalues the explicit legal protections Congress intended for permanent residents.
The Supreme Court did not decide whether Lau’s specific counterfeiting conviction qualifies as a crime involving moral turpitude, sending that specific question back to the Second Circuit for further review.
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