Supreme Court Makes It Easier to Exclude Criminal Aliens
Supreme Court Makes It Easier to Exclude Criminal Aliens
This morning’s Supreme Court decision in Blanche v. Lau is probably the least of the three immigration cases that remained on the Court’s docket, but touches on a large issue: how hard the law makes it to remove criminal aliens from the country. Justice Clarence Thomas wrote the opinion for a 6–3 majority (four of this morning’s five decisions were 6–3 along the familiar ideological divide). The Court struck a blow in favor of the immigration authorities in denying entry to green-card holders where they have committed crimes but have not yet been convicted. Once convicted, if they are still here, they can be removed.
As I’ve previously framed the issue: “Green-card holders can be barred from reentering the country if they’ve committed certain crimes — but what if they haven’t been convicted yet? Can the government prove its case to an immigration judge with evidence it didn’t have at hand on the day the green-card holder tried to reenter? [Muk Choi] Lau himself, a Chinese national, is not a very sympathetic case for this, given that he unquestionably was guilty: He ultimately pleaded guilty to trademark counterfeiting [in 2013] after Obama-era immigration officials let him back into the country to have his day in court. Fourteen years later, he’s still here.”
Blanche v. Lau presents a conflict between two core principles of due process. On the one hand, the accused in criminal cases is innocent until proven guilty, and in many situations in American civil law, we don’t treat someone as a criminal until they’ve been convicted under the procedural protections of the criminal law. (This was the argument Justice Thomas made about civil domestic violence restraining orders being insufficient to justify a citizen’s loss of Second Amendment rights without a criminalconviction, but he lost that argument 8–1.)
On the other hand, the government’s powers under the immigration laws are sweeping, and non-citizens (even lawful permanent residents) can still be excluded or removed from the country through sometimes-abbreviated civil-law processes that do not require a full criminal trial. If it were otherwise, management of the border would be functionally unworkable. Indeed, making the border functionally unworkable is the de facto end goal of many of the legal arguments of progressives. In this case, the Obama immigration authorities stood up for the letter of the law when they insisted that Lau was a criminal who could be excluded from the country, but undermined it in practice by paroling him into the country to await trial.
All nine justices agreed that where the balance is struck between those two poles in this situation is up to Congress in writing the Immigration and Nationality Act (INA): It can provide non-citizens with as much or as little legal protection as it chooses. The due process clause may have a say in ensuring that some legal process appliesthe law as written, but Congress decides the standard. As Thomas noted, the statute provides three standards (quotations omitted; emphasis mine):
- Lawful permanent residents are usually allowed to reenter the country on the theory that they are already legally admitted, but the Government may regard a lawful permanent resident as “seeking an admission” (and thus as not already admitted) if he “has committed an offense identified in section 1182(a)(2),” §1101(a)(13)(C)(v), including a crime involving moral turpitude, §1182(a)(2)(A)(i)(I).
- If the lawful permanent resident alien is then required to seek admission, the Government can charge an alien applicant for admission as inadmissible if he has been “convicted of . . . a crime involving moral turpitude” at any time. §1182(a)(2)(A)(i)(I).
- The Government can charge an already admitted alien as deportable if he has been “convicted of a crime involving moral turpitude” only if that crime was “committed within five years . . . after the date of admission.” §1227(a)(2)(A)(i).
The omission of “convicted of a crime” from section 1182(a)(2) would therefore seem to be persuasive evidence that Congress did not require a conviction before denying automatic entry and requiring a new process to seek admission. The Court agreed: “One does not commit a conviction.” The dissent did not really dispute this. But whereas the statutes governing proceedings to remove or request admission impose explicit burdens of proof on the government (and on the alien, for certain defenses to removal), the statute doesn’t say more about what evidence is needed at the initial border entry stage to determine that the non-citizen “committed” a crime, nor does it say when or how the government needs to have such evidence.
The Second Circuit, in conflict with the Fifth and Ninth, thought that border officials must have “clear and convincing evidence” on hand at the time of their decision in order to exclude; Justice Ketanji Brown Jackson’s dissent for the three liberals stressed that this evidence must be available “at the border” (emphasis in original) because Lau was a lawful permanent resident, and Congress has left the burden on the government to strip lawful permanent residents of their presumptive statutory right of reentry.
In a case such as Lau’s, this is an exploitable technicality, in which a provenly guilty criminal who was let into the country anyway can challenge the inadmissibility finding years after the fact, then (once the government can only remove him, and not deny him entry) use the five-year lookback period to contest his removal based upon an older conviction. But in cases where the government won’t parole the lawful permanent resident into the country, it can be harsh in the other direction, resulting in detention or exclusion from the country while mounting a legal case for admission that can last months or years — on the basis of a decision made right on the spot at the border, without trial. As the dissent observed, even parole downgrades an alien’s ability to work, because his or her green card is confiscated.
Making the best of an unclear statute, the Court started by refusing to read into it anything that isn’t there. The majority concluded, first, that Congress didn’t impose any elevated “clear and convincing” burden of proof on the government:
Nothing in the INA required 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. . . . Nothing in the INA imposes the burden that the Second Circuit recognized. The statute imposes similar burdens in other situations, but not in this one.
As Thomas observed, the only place the Second Circuit could find this requirement was in Board of Immigration Appeals precedents, and not in the actual statute written by Congress. And he was unimpressed with Jackson’s effort to locate a burden of proof that was not in the statute:
The dissent does not dispute that the INA nowhere imposes the Second Circuit’s clear-and-convincing-evidence border requirement. . . . It asserts that there is a “requisite certainty” that the Government must have at the border, but even after looking to “the text of the statute” it fails to tell us where the dissent’s requirement is to be found. [Citation omitted.]
The Court left unclear exactly what burden the border officers do have to satisfy, or how one would go about reviewing that decision in a subsequent judicial proceeding. The real fireworks with the dissent came over the related question of when: The Court concluded that the government had shown in the subsequent hearing that Lau had been convicted (as the other prongs of the statute require), while the dissent wanted the on-the-spot decision made by the border officer to meet an effectively reviewable standard. What the Court gained in modesty by not squarely resolving some of those issues, it probably lost by requiring the question to come back in another case. It didn’t even resolve Lau’s case, because it sent the case back to the lower court to determine whether trademark counterfeiting is actually a crime of “moral turpitude.”
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